TaxTMI 
TaxTMI 
2018 (7) TMI 2104
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....ose relative, was allowed to reside in the property with a view to look after the father-in-law and mother-in-law of the plaintiff and who were also the parents of the defendant; (v) that the plaintiff also executed a special power of attorney in favour of the defendant, for having executed the conveyance deed of freehold rights in land underneath the property from the L&DO in favour of the plaintiff and the defendant, acting as the attorney of the plaintiff, got the said conveyance deed registered on 20th January, 2011; (vi) that the father-in-law of the plaintiff expired in the year 2002 and the mother-in-law of the plaintiff expired in the year 2012; (vii) however, inspite of demise of the parents, the defendant has continued to reside in the property, despite repeated requests and reminders of the plaintiff to vacate the same. 2. The suit was entertained and the defendant contested the same by filing a written statement and also made a Counter Claim inter alia pleading that: (i) the parents of the defendant along with their children including the defendant and the husband of the plaintiff used to reside in the family house at 6/2, Rajender Nagar, New Delhi; (ii) as t....
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....f the other two sons of the parents of the defendant made any contribution; (ix) on completion of construction of a double-storey structure along with basement, the defendant occupied the ground floor thereof; (x) the defendant only has been maintaining the entire property since 1984-85, since the husband of the plaintiff along with the plaintiff was residing at Germany; (xi) all the title documents of the property were also with the parents of the defendant and were entrusted by the parents to the defendant for safe custody; (xii) though the sale deed of the plot of land underneath the property was in the name of the husband of the plaintiff, but he was never the owner of the plot or of the superstructure constructed thereon and the entire property belonged to the father of the defendant, who was the father-in-law of the plaintiff; (xiii) at the instance of the father of the defendant, the defendant and the husband of the plaintiff also started a joint family business but which was shut down in the year 1996; (xiv) during the lifetime of the parents of the defendant, a mutual family settlement and agreement to partition and divide the assets took place in the year 1996....
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.... Benami Property Transactions Act, 1988. Once the defendant on the pleas taken in the written statement and the counter-claim have no chance of success, notwithstanding framing of issues, the Court is not to waste its time on the suit and counter-claim. 4. The plaintiff, on the basis of title, has sued for recovery of possession of basement and ground floor of an immoveable property from the defendant. 5. The defendant is contesting the suit and has made a counter-claim pleading (i) that the property was purchased from monies largely belonging to the father of the defendant and who was the father- in-law of the plaintiff; (ii) that the purchase was however made in the name of husband of the plaintiff who has executed a gift deed in favour of the plaintiff; (iii) that after the death of the father of the defendant and the father-in-law of the plaintiff, there was an oral partition between the defendant and the husband of the plaintiff whereunder the basement and ground floor of the property came to the exclusive share of the defendant and the upper floors of the property to the exclusive share of the husband of the plaintiff; (iv) that the husband of the plaintiff had no right ....
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....ndant either deposit at the said rate or be liable to vacate during the pendency of the suit and subject to the final outcome in the suit. 13. List on 25th July, 2018. 6. I may, at this stage, record the issues framed in the Suit on 14th November, 2017 as under: (i) Whether the plaintiff is the sole owner of the suit property bearing No.425, Defence Colony, New Delhi 110024? OPP (ii) Whether the plaintiff is entitled to a decree of possession of the ground floor, basement and other areas of the suit property under the occupation and possession of the defendant? OPP (iii) Whether the present suit filed by the plaintiff is liable to be rejected under Order VII Rule 11(a) CPC? OPD (iv) Whether the suit property has been divided and partitioned by metes and bounds between the husband of the plaintiff and the defendant herein under a mutual family settlement/ arrangement? (v) Whether the defendant is the owner of the ground floor, basement, garage and three rooms above the garage and major part of the driveway of the suit property, under his use, occupation and possession? OPD (vi) Whether the plaintiff and the defendant are joint owners of the suit property? If so, its e....
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....r to the amendment or in Section 2(9)(A)(a) of the Act as it now exists after the amendment, to suggest that only if the entire consideration has been provided, will the transaction be benami and not if part of the consideration is provided. The provisions aforesaid use the word consideration and do not qualify the said word by entire or part. Otherwise also, it defies logic that when the claim is of payment of part consideration and part ownership in lieu thereof, benami would not apply, but if the claim is of payment of entire consideration and of exclusive title, the prohibition would apply. I have, in Satish Kumar Gupta Vs. Shanti Swaroop Gupta 2018 SCC OnLine Del 9651 and K.L. Garg Vs. Rajesh Garg 2013 SCC OnLine Del 323 also held that the only claim of a contributor to the purchase consideration of a property, can be for recovery of such purchase consideration and contribution to purchase consideration does not create any title or interest in the property in favour of person so contributing. 10. The counsel for the defendant however contends that the point is no longer res integra and refers to Marcel Martins vs. M. Printer & Ors. (2012) 5 SCC 342 and has drawn attention to ....
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.... the tenancy rights were so transferred by the lessor. It was in these circumstances that it was held that the transfer of tenancy rights in the exclusive name of the appellant was not because her other siblings had abandoned their rights but because the lessor required the tenancy rights to be transferred in favour of an individual to avoid procedural complications in enforcing its rights qua the property. It was thus held that Marcel Martins was holding the tenancy rights in a fiduciary capacity, as a trustee, and for the benefit of her other siblings on whom also, on demise of the mother, the tenancy rights had devolved and the claim of the other siblings for a share in the tenancy rights was not barred by the prohibition contained in Section 4 aforesaid. 14. The counsel for the defendant admits, that it is not even the plea in the written statement, that the property was held by the husband of the plaintiff as a trustee or qua whom he was standing in such capacity. The counsel for the defendant however states that that is his case though the said words may not have been used. 15. I have, for this reason only, reproduced paragraph 13 of the written statement hereinabove wherei....
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....elf a bankrupt and save his assets. He wanted to find a way to save the suit property from attachment. For this purpose he came to Delhi and met the defendant to discuss ways of saving the suit property. During the discussions it was discovered and realized that the entire suit property was still leasehold and stood in the name of Mr. N.K. Butta and first the shares were to be mutated separately. However, for carrying out the mutation it would first have to be converted from leasehold to freehold. Further, even to sell the property as it is, prior permission of the L&DO would be required. The defendant and Mr. N.K. Butta went and made inquiries for conversion of the property to freehold and found that the entire process was going to take a long time. But there was immediate pressure on Mr. N.K. Butta to transfer the suit property from his name to another name duly supported by documents. The threat of attachment of the suit property by the German Courts was always on his mind and there was a great possibility of losing the entire property. 38. Looking at the desperate condition of his brother and also to save his own share in the suit property, the defendant suggested taking some....
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.... misused against the defendant. Mr. N.K. Butta and the plaintiff further assured the defendant that as soon as the legal problems of Mr. N.K. Butta in Germany were over, they will proceed for conversion of the property to freehold and get separate mutations effected in the municipal records of different shares and portions of the N.K. Butta and the defendant in the suit property. 41. After being persuaded for a long time and despite major disagreement and opposition from his wife, children and mother, Smt. Lakshmi Butta, the defendant agreed to permit Mr. N.K. Butta to transfer the property in the name of his wife, the plaintiff herein. The defendant agreed and gave his consent to do this as it was only being done in good faith to save Mr. N.K. Butta from his legal problems and to protect the suit property. The defendant agreed to this out of natural love and affection and having full faith in the intentions of Mr. N.K. Butta and the plaintiff and especially looking at their desperate situation. 42. After the defendant gave his consent, Mr. N.K. Butta proposed that he will transfer the property in favour of the plaintiff by way of a registered gift deed. He assured the defendan....
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....he plaintiff being benami owner of the property, is liable to be rejected as barred by the Benami Law and there is no need to put the said defence of the defendant to trial, inasmuch as once the defence pleaded is barred by law, no amount of evidence can cure the said bar. 21. That brings me to the plea of the defendant/counter claimant, of mutual family settlement and agreement to partition and divide the assets. The same is pleaded to be oral and not recorded in any document and nothing is pleaded from which an inference of the same having been acted upon, can be drawn. 22. The question which arises, is whether the said plea is such which requires any evidence to be led. 23. The said plea is however premised on the husband of the plaintiff being the benami owner of the property and the father of the defendant/ counter claimant and the father-in-law of the plaintiff being the real owner of the property and/or on the defendant/ counter claimant also having a share in the property by reason of having contributed towards purchase of land underneath the same and cost of construction thereof. I have already hereinabove held that the plea of benami is barred by benami law and not req....
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....espect to one property only and in which, the pleas of the defendant/ counter claimant of antecedent title thereto, have been found to be barred by law. 27. Supreme Court, recently in Theiry Santhanamal Vs. Viswanathan (2018) 3 SCC 117 held that partition deed can be entered into between the parties who are joint owners of the property; a father, as an absolute owner of the property, could not give away portions of the property to his sons by entering into partition deed; in case the father wanted to give the property of which he was the absolute owner, to his sons, it could be done by Will or by means of a gift deed/donation etc.; however the claim of the plaintiff in that case was not on that basis; it was not stated anywhere whether the necessary formalities, conditions or rules laid down for donation inter vivos or gift, so as to enforce a document, were complied with; in the absence of pleadings, no evidence also to that effect was produced; similarly, under a Family Settlement, pre-existing rights only can be apportioned and no new rights can be created. 28. Once it has been found that the defendant/counter claimant here had no pre-existing right in the property, no right c....