TaxTMI 
TaxTMI 
2018 (7) TMI 2103
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....f the same, pleading that (a) Satish is the eldest and Sunil is the youngest son of Shanti Swaroop; (b) family of Shanti Swaroop also comprises of his wife, another son Anil Kumar Gupta (Anil) and a daughter Madhu Aggarwal (Madhu); (c) the wife of Shanti Swaroop is invalid and Anil owns a house at 86, Kailash Hills and was given Rs. 2 lakhs by Satish from the account of Maharaja Exporters (India) (now the sole proprietary of Satish) for purchase of 86, Kailash Hills; (d) there are other properties of Shanti Swaroop which he intends to give to Sunil and Madhu is happily married; (e) since Shanti Swaroop has provided for Anil and Sunil, he promised to Satish exclusive ownership of property No.F-10, East of Kailash, New Delhi, as Satish had put in his labour and contributed towards the cost of purchase and construction of the said property; (f) property No.F-10, East of Kailash, New Delhi was purchased in or about the year 1978 and Satish had also contributed substantial funds; the agreement to sell and sale deed were however executed in the name of Shanti Swaroop, since he was the head of the family; the physical possession of the property was handed over to Satish and Shanti Swaroop....
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....xploring possibility of amicable settlement. On 28th October, 1999, it was informed that Suit No.2005/1999 between the same parties along with others, for partition was also pending in this Court and observing that it was appropriate that both the suits are tried together, the two suits were ordered to be listed together. The parties thereafter, again continued to ask for adjournments and the suit was adjourned from time to time. On 17th November, 2003, it was informed that Shanti Swaroop had died and application for substitution of his legal representatives (LRs) was to be filed. On enhancement in the minimum pecuniary jurisdiction of this Court, vide order dated 5 th March, 2004, the suit was ordered to be transferred to the District Court and so transferred. Vide order dated 12th August, 2004 of the Additional District Judge, Anil, Sunil and Madhu were substituted in place of Shanti Swaroop and the suit was ordered to be sent back to this Court owing to the earlier order, of the present suit to be consolidated with Suit No.2005/1999. On transfer back to this Court, the game of adjournments again continued to be played and finally on 25th February, 2008, the application for setti....
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....is barred by law, as alleged in the written statement of defendant No.4? OPD-4" and the present suit was clubbed with Test.Cas. No.31/2004 and it was further ordered that since evidence was already being recorded in Test.Cas. No.31/2004, Test.Cas. No.31/2004 would be treated as the main ase and the evidence recorded therein will be read for the purposes of the suit as well. 8.On 12th July, 2016, this suit as well as CS(OS) No.2005/1999 were listed before the undersigned when it transpired (A) that CS(OS) No.2005/1999 was filed by Sunil and others for partition of as many as 21 properties; however vide order dated 9th December, 2010, 11 properties were deleted and the suit remained with respect to 10 properties; issues were framed in the suit on 4th November, 2011; however the plaintiffs in CS(OS) No.2005/1999 had failed to tender any evidence and the evidence of the plaintiffs was closed and since the onus of all the issues framed in the suit was on the plaintiffs, the defendants in the said suit also closed their evidence; (B) that ISKCON had also subsequently been impleaded as defendant in CS(OS) No.2005/1999 but the counsel for ISKCON stated that ISKCON had no....
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....e the F-10, East of Kailash house in his favour but this was neither possible nor practicable as I did not have funds to buy another property for myself or for Sunil Kumar. Therefore, a dispute erupted and it even led to court cases and police action. I don't want to elaborate here the painful events which arose because of the stance of Satish Kumar. 3. Now in April, 1999, I had angioplasty and was even operated for prostate cancer. In view of financial constraints I depended on borrowings and financial help fom Anil Kumar. He looked after me well during hospitalisation and afterwards. During this period of ailments, no help or support was given by Satish Kumar and Sunil Kumar. I don't want to dwell on how much they both cared for me - they never visited me (except once) or even enquired about me on telephone. Here I may add that during the illness of my wife neither of them cared for her too. 4. Under the circumstances I suggested to the three sons to sell off the house that was built by me from my own funds at F-10, East of Kailash, New Delhi. But Satish Kumar and Sunil Kumar were not very keen to sell, as both of them were in occupation of the ....
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.... or otherwise). 7. A situation may arise where any or all the three sons create a problem in the sale of house (F-10, East of Kailash) and in case the executors fail to persuade the three sons to sell the property (though I am hundred percent confident that they will be able to perform the duties given to them) within 6 months from the date of my death, then the following will be the alternate solution :- "The entire house will be donated to ISKCON, Sant Nagar, New Delhi as donation, for making a guest house for outstation devotees. A separate agreement has/is being entered into with M/s ISKCON, Sant Nagar, New Delhi for this purpose." ....... 14. The names of the persons who are authorized to act as executors:- (1) Mr. Pramod Kumar, son of Late Shri Ved Prakash, R/o Safdarjung Enclave, New Delhi. AND / OR (2) Mr. Subodh Kumar, son of Late Shri Ved Prakash, R/o Kailash Hills, New Delhi. AND / OR (3) Mr. Ravinder, son of Late Shri Satya Palji, R/o Maharani Bagh, New Delhi. 15. As yet I have not made any other registered or unregistered WILL. If any one produces any other fraudulent WILL, the same shall not be binding. 16. This de....
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.... Shanti Swaroop out of his free will; (v) that property No.F-10, East of Kailash, New Delhi is a joint family property and Shanti Swaroop had no right to execute the Will with respect thereto and CS(OS) No.2005/1999 for partition of the said property as well as several other properties of the Joint Hindu Family was pending. The counsel for Sunil, in his written arguments, qua the suit, has disputed the claim of Satish of exclusive ownership of first and second floors with terrace and/or of half ownership of ground floor. 17. None others is found to have filed objections in Test.Cas. No.92/2014. 18. CS(OS) No.3/1992 and Test.Cas. No.92/2014 came before the undersigned on 24th October, 2016, when the Advocate for LRs of Anil stated that they were supporting the stand of Satish. None appeared for Sunil on that date. 19. It was enquired from counsel for Satish on 24th October, 2016, as to how the pleas taken in the plaint in CS(OS) No.3/1992 entitled Satish to claim the relief of declaration of ownership. It was further enquired, whether not the only remedy of the person who contributes to purchase consideration of the property, is to recover the amount contributed from the pe....
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....ment of the Supreme Court in R. Rajagopal Reddy Vs. Padmini Chandrasekharan (1995) 2 SCC 630 but that the title in the property stood released by the defendant no.1 in favour of the plaintiff in the facts pleaded in the plaint. 8. It is further the contention that release by the Benamidar of right, title and interest in the property in favour of the actual owner, prior to coming into force of the Benami Act, was not necessarily required to be by a registered document. 9. Alternatively, the proposition is that the plaintiff is the owner of the superstructure. 10. The counsel for the plaintiff in CS(OS) No.3/1992 also seeks to file written submissions. 11. The same be filed by 7th December, 2016. 12. The plaintiff in CS(OS) No.3/1992 to also file an affidavit by 7th December, 2016 disclosing:- (i)Since when he is an income tax assessee. (ii) How in his Income Tax Returns he has been showing the monies which are claimed to have been spent in acquisition and construction of the property. (iii) Whether he has been declaring any rights in the property in his Income Tax Returns. ....
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....(P) Ltd. Vs. State of Haryana (2009) 7 SCC 363 & (2012) 1 SCC 656 expressly overruled the dicta of the Division Bench of this Court and held that in the absence of a registered document, there can be no title to the property. 27. What remains to be seen is, whether Satish would be entitled to a declaration of ownership as claimed in the suit, even if succeeds in proving (A) that he had made a contribution to the purchase price of the property; (B) that he had, with his own monies, completed the construction of the property which was semi-constructed at the time of purchase; and (C) that Shanti Swaroop declared his intention to transfer title in the property to Satish and in pursuance thereto signed a gift deed or any other writing. If the answers to the said questions were to be in the negative, no purpose would be served in relegating CS(OS) No.3/1992 to trial, as, even in the event of Satish proving what he has pleaded in the plaint, he would not be entitled to the relief of declaration. 28. The counsel for Satish, in his written submission qua CS(OS) No.3/1992, has contended (i) that Satish, on the date of filing of the suit, is not asserting a right of being benami owner ....
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....d judgment is to contend that since purchase of the subject property is of a date prior to coming into force of Benami Act, the Benami Act would not apply. The counsel for Satish, inspite of his attention being drawn to the fact that while the suit from which Binapani Paul supra arose was instituted in or about 1964 i.e. prior to the coming into force of the Benami Act, the subject suit was filed after the coming into force of the Benami Act. Section 4 of the Benami Act provides, that no suit, claim or action to enforce any right in respect of any property held benami, against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. Satish, on the date of institution of CS(OS) No.3/1992 i.e. 2nd January, 1992, was prohibited by Section 4 of the Benami Act from instituting the suit. Supreme Court in Binapani Paul supra did not consider the Benami Act in accordance with the well settled doctrine, that the decision of the lis, even if, after coming into force of a change in substantive law, has to be in accordance with law as prevalent on the date of institution of the suit. Satish c....
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....rty. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiff's right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19-5-1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with Topic No. 9 under the definition of term 'lie' it is stated as under :- "For an action, claim appeal etc. to subsist; be maintainable or admissible". ....
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....ffect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow." The claim in the suit for declaration of title to property is thus barred by the Benami Act. 36. Else, an intent, as pleaded of Shanti Swaroop, to transfer property to Satish cannot confer title and even if proved, cannot be the basis for a declaration of title having been created in favour of Satish and the only remedy of Satish, on the basis of the said intent, was to file a suit for specific performance, if maintainable in law for enforcement of the said intent and which has not been done. If it were to be held that merely by execution of proposed gift deed or by handwritten documents, titles in immoveable property could be transferred or a plea of estoppel become available against the true owner, the same would sound the death knell of the law of transfer o....
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....Will of Shanti Swroop, shows Shanti Swaroop therein, with respect to said property, having willed, (i) that the property be disposed of and the proceeds be distributed by the executors as prescribed therein, with 20% of the sale proceeds being directed to be distributed to ISKCON; (ii) that if his sons create a problem in sale and the executors fail to persuade the sons to sell the property within six months from the date of death, then "the entire house will be donated" to ISKCON "as donation". Shanti Swaroop, under the aforesaid document, appointed Pramod Kumar, Subodh Kumar and Ravinder as executors of the Will, to act jointly and severally. 43. What troubled me was, that a reading of Clause 7 of the document dated 11th September, 2000 as reproduced above indicates that Shanti Swaroop thereunder imposed an obligation on the executors appointed by him, to persuade Satish, Anil and Sunil to sell the property and reposed 100% confidence that the executors will be able to so persuade his three sons within six months. What further troubled me was, whether for failure of executor/s to so persuade Satish, Anil and Sunil to sell the property or whether for resistance by anyone of the....