TaxTMI 
TaxTMI 
2020 (5) TMI 70
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.... convenience, the said para is extracted below:- "1. The three plaintiffs, namely (a) Neeru Dhir; (b) Nipun Dhir; and, (c) Vatsala Dhir, being the widow, son and daughter of late Anil Kumar Dhir, have instituted this suit for partition of Property No.C324, Vivek Vihar, Delhi - 110 095 and for permanent injunction restraining the defendants from alienating, encumbering or parting with possession of the said property, against the four brothers, three sisters and heirs of another two sisters, of Anil Kumar Dhir pleading that (i) R.P. Dhir father of Anil Kumar Dhir and defendants no.1 to 7 was a government servant and his family was a Hindu Undivided Family (HUF); (ii) during his service period the said R.P. Dhir was living in government accommodation along with his wife and children; (iii) R.P. Dhir, in the year 1966, from his own resources and earnings, "for the welfare and benefit of the family" purchased the land underneath the suit property from Delhi Development Authority (DDA) and in the year 1977 built a single storeyed house thereon; (iv) however at the time of allotment and execution of documents, R.P. Dhir and the defendants....
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.... "5. The defendants seek rejection of the plaint, pleading that (i) R.P. Dhir had a fixed salary with a family of ten children and the defendant no.1 being the eldest son was supporting the father since joining employment in the year 1961; (ii) the defendant no.1, in the year 1963 shifted to United Kingdom (UK) and continued to help the father to meet the expenses of education and marriage of his children; (iii) R.P. Dhir had no sufficient means to acquire the land underneath the property or to raise construction thereon; (iv) it was the defendant no.1 who had applied to the DDA and was the successful bidder and who was allotted the land and who had raised construction thereon; (v) however since the defendant no.1 was residing in UK, he had executed a General Power of Attorney (GPA) in favour of his father R.P. Dhir for the said purpose and all documents relating to the property also remained in the custody of R.P. Dhir and which documents are being illegally withheld with the plaintiffs; (vi) R.P. Dhir retired from employment in the year 1975; (vii) Anil Kumar Dhir was unemployed and was struggling to find gain....
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....e learned Single Judge had expressed a prima facie view as below:- "9. In my prima facie opinion, even under the unamended Act the plaintiffs have no right and in any case the amended provisions have to be enforced even though the suit is found to have been instituted on 25th February, 2016 i.e. prior to the coming into force of the amended Act with effect from 11th August, 2016." 7. However, after passing the aforesaid order, being mindful of the fact that it was a dispute between family members, efforts were made by the learned Single Judge to facilitate a settlement between the parties, which did not bear any result and finally led to passing of the impugned judgment, whereby the suit instituted by the appellants was rejected as being barred by law. 8. Mr. Prag Chawla, learned counsel for the appellants has assailed the impugned judgment on the ground that the learned Single Judge has completely overlooked the letters dated 27.04.1987 and 12.03.2001 issued by the respondent No.1, wherein he had stated that though the suit premises stood in his name, it was purchased for the welfare and benefit of the family. He also referred to an Agreement dated 13.02.1993 execut....
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....urge that pleadings in the present suit are illusory in nature, devoid of cause of action and are mere bald statements, that do not disclose any material details and on this ground too, the plaint ought to have been rejected as being vague, vexatious and bereft of material particulars, sufficient to demonstrate any actionable pleadings. 11. We have heard the arguments advanced by learned counsel for the parties, carefully examined the impugned judgment and gone through the documents placed on record. 12. The plea taken by Mr. Chawla, learned counsel for the appellants that the bar placed under Section 4 of the Benami Act would not apply retrospectively, is no longer res integra. The said proposition had come up before the Supreme Court in R. Rajagopal Reddy (dead) by LRs and Ors. vs. Padmini Chandrasekharan (dead) by LRs reported as (1995) 2 SCC 630, wherein Justice S.B. Majmudar, speaking for the other members of a three Judge Bench had arrived at a conclusion that Section 4(1) of the Benami Act does not have any retrospective application. By the same analogy, any amendment to the said enactment by virtue of Act 43 of 2016, that came into effect on 01.11.2016, cannot acquire....
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...., a plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC, for seeking rejection of the plaint. In exercise of its powers under Order VII Rule 11 CPC, the court is required to look into the averments made in the plaint, which alone are germane. The entire plaint must be read as a whole to determine as to whether it discloses a cause of action. In undertaking the said exercise, the court is not expected to consider a particular plea and instead, the averments made in the plaint in entirety, have to be taken to be correct. Since a cause of action comprises of a bundle of facts, the same are required to be proved by the plaintiff only at the time of the trial. Only the material facts are required to be stated in the plaint without referring to the evidence except in circumstances where the pleadings relate to misrepresentation, fraud, undue influence, wilful default etc. As long as the court is satisfied that the plaint discloses some cause of action that requires determination, the plaint ought not to be rejected. At the end of the day, the court must be mindful ....
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....foresaid documents:- Letter dated 12.3.2001 written by respondent No.1 to his siblings (pg. 86) "Despite the fact that the Vivek Vihar property is in my name, it is our ancestral home and family property and I have no selfish interest in it. I provided a number of documents in the past to support this and respected father had full control and authority to do what he liked with the property. Soon after respected father's death, and in the absence of any WILL, it was decided by mutual consent to authorize Ashok and Anil to repair and renovate the ground floor and proceed with the construction of an additional one and a half storeys, out of money left by respected father with further funds to be provided by Ashok and Anil. They were both to be given legal ownership of one floor each and the half storey on the second floor was to remain family property." Undated letter written by respondent No.1 to his siblings. (pg. 86) "I feel that the matter of family property has remained unresolved for far too long. The wording of the General Power of Attorney sent by Anil was not suitable and I sent my comments to all of you on the 28th March, 1994. Si....
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....of the plaintiffs in the suit property. 19. For considering the submission made by learned counsel for the appellants to the effect that the case of the appellants/plaintiffs falls within the exception of sub-section (3) of Section 4 of the unamended Benami Act, we may reproduce hereinbelow, Section 4, as it stood before the amendment:- "4. Prohibition of the right to recover property held benami.- (1) 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. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply:- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family....
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....e, the import whereof may be briefly examined at this stage. 32. The term "fiduciary" has been explained by Corpus Juris Secundum as under: "A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from the civil or Roman law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations. The word 'fiduciary', as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and condor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit....
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....n a suit for the recall of the grant, holds it 'in a fiduciary capacity' within the Debtors Act, 1869 so, of the debt due from an executor who is indebted to his testator's estate which he is able to pay but will not, so of moneys in the hands of a receiver, or agent, or manager, or moneys due on an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or moneys which in the compromise of an action have been ordered to be held on certain trusts or partnership moneys received by a partner." 36.Bouvier's Law Dictionary defines "fiduciary capacity" as under: "What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation or society, medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been ....
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....e present case once more to determine whether the appellant stood in a fiduciary capacity vis-à-vis the respondent plaintiffs." (emphasis added) 21. It is noteworthy that the aforesaid view was expressed by the Supreme Court in a case where a full blown trial had taken place before the trial court, which included framing of issues, oral and documentary evidence led by the parties followed by the judgment of the trial court whereby the suit instituted by the appellants therein was finally dismissed. In the appeal, the High Court had reversed the finding of the Trial Court and proceeded to decree the suit in favour of the respondents/plaintiffs therein, which made the defendants/appellants prefer an appeal before the Supreme Court urging that the suit instituted by the respondents was squarely hit by the Benami Act. The said appeal was finally dismissed by the Supreme Court holding that the transaction in the said case was saved from the mischief of Section 4 of the Act, as it fell under the exception carved out under sub-section (3) and resultantly, the respondents/plaintiffs were declared to be coparceners of certain properties to the extent of their contribution made the....
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....pinion that the suit ought not to have been rejected outright under Order VII Rule 11 CPC on the ground that the pleas taken by the appellants/plaintiffs are barred under Section 4(3) of the unamended Benami Act. In our view, the matter would require a more comprehensive consideration after permitting the parties to lead evidence in the case. Order VII Rule 11 CPC was not the appropriate stage for testing the veracity of the pleas taken in the plaint and return any finding on the merits of the said plea taken by the appellants/plaintiffs in the plaint or to extensively examine the underlying intent of the parties on a perusal of the documents filed by the appellants. On a bare reading of the averments made in the plaint read in conjunction with the documents placed on record, we are of the opinion that sufficient material facts have been disclosed requiring determination only after a proper trial. At the stage of deciding an application moved by the respondents under Order VII Rule 11 CPC, there was no occasion for the court to have taken pains to interpret and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents. 24. In the instant case ....