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2018 (9) TMI 1939
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....ea, Karol Bagh, New Delhi in the name of his wife i.e. mother of the parties- defendant No.1; b) thereafter, in the year 1981, the father also purchased remaining ½ portion in the name of his wife - defendant No.1 - the mother of parties; c) it is alleged the use and right in the subject property was only for the benefit of her all children and though it was purchased by the father in the name of his wife-defendant no.1 but it was an exclusive property of the father. 3. The application under Order 7 Rule 11 of the CPC is filed by the defendants alleging interalia a bare reading of the plaint would reveal the plaintiff has no case and the suit needs to be dismissed. The defendant alleges: (i) prior to filing this suit a public notice in Nav Bharat Times dated 08.11.2014 was got published by the plaintiff claiming the property to be joint and ancestral one; (ii) the plaintiff claims her right in this ancestral property per Section 6 of the Hindu Succession (Amendment) Act, 2005 and she cannot claim such right since her father was not alive on the date of the amendment, as is held in Prakash vs. Phulavati (2016) 2 SCC 36; (iii) fu....
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....given to public at large that the entire property bearing No. 12/19, WEA Karol Bagh, New Delhi-110005 is a joint and ancestral property and as such I am a co-sharer of the same. This property is not available for sale, rent, lien construction, reconstruction, exchange, gift, lease, mortgage, charge, trust, possession or otherwise without my concurrence. Whomsoever, enters into any kind of agreement regarding the above mentioned property without my knowledge and concurrence, shall be doing so on his/her own costs, risks and consequences. Sister Name : Anita Anand; Address: GH-IO/IO-B, Outer Ring Road, Paschim Vihar, New Delhi-87." 5. The defendant also refers to Section 6 of the Hindu Succession (Amendment)Act, 2005 :- "6.Devolution of interest in coparcenary property.-- (1) xxxx xxxx (2) xxxx xxxx (3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a part....
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....r and it was only in the month of July 2014 when plaintiff visited the said property but was kicked by defendant no.2 the cause of action arose for filing of this suit. Hence earlier to July 2014 there could be no occasion for the plaintiff to file such suit, much less, within three years from the date of death of her father as she always allegedly believed the subject property to be her father's property as was the alleged oral understanding between the parties for decades. 9. The plaintiff has never stalked her claim as a coparcener in a joint Hindu family and thus if at some odd places in plaint the property is described as an ancestral or joint property but a meaningful reading of the plaint reveal the claim is not based upon ancestral property but upon a plea the property was purchased by deceased Joginder Nath Kapur by his own funds, hence it cannot be said the property is claimed to be an ancestral one and consequently Section 6 of the Hindu Succession Act, 1956 shall have no applicability. The suit property is a coparcenary property has not even been pleaded by the plaintiff. It is, even otherwise, a settled position of law after passing of the Hindu Succession Act, ....
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....Civil Procedure, 1908 (5 of 1908), and section 281A of the Income-tax Act, 1961 (43 of 1961), are hereby repealed. (2) For the removal of doubts, it is hereby declared that nothing in sub- section (1) shall affect the continued operation of section 281A of the Income-tax Act, 1961 (43 of 1961), in the State of Jammu and Kashmir." 13. The defendant also relied upon Amar N.Gugnani vs. Sh.Naresh Kumar Gugnani in CS(OS) 478/2004 decided on 30.07.2015 wherein the Court held: "17. In my humble opinion therefore the judgment in the case of Marcel Martins (supra) is distinguishable in view of the existence of the provision of Section 7 of the Benami Act repealing Sections 81, 82 and 94 of the Trusts Act. 18. In view of the above, since the plaintiff in the plaint himself states that the property was purchased as a benami property in the name of the father, late Sh. Jai Gopal Gugnani, merely and although the plaintiff has used the expressions fiduciary relationship and trustee, yet these expressions of fiduciary relationship and trustee are not those expressions which will cause the transaction to fall under the exception of Section 4(3)(b) of the Benami Act, b....
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....e defendant the suit is barred due to repealing of certain provisions of Indian Trust Act, 1882 is also erroneous. Further, the judgment of Sh.Amar N.Gugnani V. Naresh Kumar Gugnani is sub judice before the Ld.Division Bench of this Hon'ble Court in RFA(OS) No.89 of 2015. 17. Rather in Manoj Arora vs. Mamta Arora in RFA No. 522/2017 decided on 07.08.2018 this Court held:- "4. Unfortunately, the trial court has committed a grave and fundamental error in rejecting the suit plaint under Order VII Rule 11 CPC by relying upon the provision of Section 4 and repealed provision of Section 3(2) of the Benami Transactions (Prohibition) Act. When the impugned judgment was passed on 19.12.2016, what was, and is now applicable is the Prohibition of Benami Property Transactions Act, 1988 which became applicable w.e.f 1.11.2016. As per Section 2(9) of the Amended Act what is a Benami Transaction is stated/specified, and also those transactions which are not benami are are also stated/specified. As per the suit plaint/averments, in the present case the existence of the properties in the name of the respondent/defendant/wife will fall as an Exception to the prohibited benami transac....
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....maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 20. It was argued by the learned counsel for the defendants the plaintiff had failed to allege the property though was purchased in the name of defendant no.1 but was not for her benefit alone and further the property was acquired by the mother in lieu of maintenance so per Section 14 of Hindu Succession Act the property vested in her as an absolute owner, hence the suit is not maintainable. 21. The learned counsel for the defendant also relied Jupudy Pardha Sarthy vs Pentapati Rama Krishna & Others (2016)2 SCC 56 wherein the Court noted:- ....
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....e, declare or recognise pre- existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub- section has absolutely no application and the female‟s limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like "property acquired by a female Hindu at a partition‟, "or in lieu of maintenance‟, "or arrears of maintenance‟, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of s....
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....nsactions Act, 1988 (as it existed before the 2016 amendment). In paragraph 16 of the said judgment, the Court has held that a challenge to the right of a woman under Section 14 of the HSA is entertainable if it is proved that the property purchased in the name of a woman was not for her benefit. 24. By amending the old Act by the Benami Transactions (Prohibition) Amendment Act, 2016, the legislators while recognizing and maintaining the said exception contained in Section 3(2) and 4(3) of the Old Act, for abundant clarity, by virtue of Section 2(9)(A)(b)(ii) and Section 2(9)(A)(b)(iii) of the amended Act, specifically excluded transactions of the nature pleaded by the plaintiff from the very definition of Benami Transactions. Given this position and there not being any disharmony between the provisions of the Old Act and the amended Act insofar as the aforesaid exception is concerned, the ration decendi of the Hemant Sati case (supra) will, apply proprio vigore, to cases covered by the amended Act as well. In view of the above, the argument of the defendants the wife of the father of the parties had become the absolute owner of the suit property when the same was purchased in h....
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....he suit for declaration filed by the plaintiff seeking a declaration that the property was not the property of her mother but actually property of her father is miserably time barred. The period of limitation for filing such a suit is three years. The limitation starts in this case in 1975, when property was transferred in the name of defendant no.1 by Delhi Development Authority. Suit could have been filed by husband of defendant no.1. He expired in 1997. The suit could have been filed by the plaintiff latest by year 2000. The suit is liable to be dismissed being time barred." 27. It is argued the facts of the present case are akin to the facts narrated in Leena (supra). Neither the deceased father of the plaintiff nor the plaintiff ever filed a suit for declaration claiming him to be an absolute owner of the subject property during his lifetime or within three years of the date of death of her father, hence the suit for declaration now is barred by limitation. 28. The learned counsel for the defendants thus argued a legal presumption cannot be rebutted by merely alleging averments of symbolic possession. 29. Qua limitation the learned counsel for the defendants pleaded t....
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.... or by sale of the property. 30. Therefore, in effect, the Court will have to decide whether the plaintiff has any right, title or interest to a share in the property as claimed by him. This Court, therefore, does not find any inconsistency in the pleas for a decree of declaration and a decree for partition sought for by the plaintiff in the instant case." 32. I have already noted above there being no occasion for the plaintiff to come to the court prior to July 2014 in view of an alleged settled understanding between the parties prior to such date and if such understanding ever existed is a question of fact requiring evidence. 33. Qua contention (vi) viz. the advalorem Court-fee, it is argued (a) the plaintiff has valued the suit property at Rs. 5,93,56,644/- and seeks a declaration to be a co-owner of such property when, admittedly, she is neither in physical nor symbolic possession of the property, she being married since 1976 and is residing in her matrimonial home, hence has to pay advalorem Court fee on the relief of declaration/partition with a consequential relief and (b) the plaintiff seeks a declaration qua the gift deed valued at Rs. 5.93 Crores, to be void but ....
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....n the value of their shares, for seeking the relief of partition and possession of their separate shares in the suit premises." 37. Thus merely by assertion of possession the Plaintiff cannot avoid payment of Court fee in a suit for partition. The married daughter once moves to her matrimonial home after marriage cannot claim that contrary to the customs she is keeping possession of the suit property owned by her mother. 38. In the present case the Plaintiff herself in para no.11 of the plaint has averred the defendant no.1 and 2 live in the suit property and are currently in possession of the title documents. It is also averred defendant no.2 continuous to derive income from the suit property and has acquired other properties from the proceeds and earnings of the said income from the suit property. 39. Once it is own case of the plaintiff that defendant no.1 and 2 are living in the suit property and the defendant no.2 is deriving income from the suit property, itself shows that the suit property is not in the possession of the plaintiff and the defendant no.2 is deriving income either by letting out the same or by doing some kind of work, business of the said property. ....