TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 70
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....ow:- "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 decided that "for the convenience sake the title documents/allotment etc. be....
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....he 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 gainful employment after graduation and was supported by defendants no.1,2&3 to start a business and though initially acquired a house with the gains of the business but subsequently suffered....
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.... 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 executed by the respondents No.1 to 3, admitting inter alia that the suit premises had been financed by Shri R.P. Dhir. It was thus contended that the suit instituted by the appellants clearly falls within the ambit of the exception carve....
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....gue, 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 retrospectivity in a case like the present one where the suit was instituted by the appellants well before the said date, in February, 2016. We therefore have no hesitation in accepting the submission made by learned counsel for the appell....
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....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 of the fact that the underlying object of Order VII Rule 11 CPC is to nip in the bud, irresponsible and vexatious suits. At the same time, the opinion of the court that the plaintiff may not ultimately succeed in the suit, ought not to form the basis ....
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....he 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. Since then I have not received any constructive reply from either Ashok or Anil on this matter. I outline below the options available and would ask all of yhou to consider it seriously and let me know your comments and suggestions, in writing, sop that the situation can be resolved to the satisfaction of all concerne....
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.... 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; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." (emphasis added) 20. An instructive discussion on the scope of sub-section (3) of Section 4 of the Banami Act is found in Marcel M....
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....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 in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate." 33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as under: "There is a technical distinction between a 'fiducial relation' which is more correctly applicable to legal relatio....
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....oneys 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 held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made." 37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay [(2011) 8 SCC 497], wherein Raveendran, J. speaking for the Court in that case explained the terms "fiduciary" and "fiduciary relationship" in the following words: (SCC pp. 524-25, para 39) "39. The term 'fiduciary' refers to a person havin....
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....ding 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 therein. 22. In the present case, the stage of evidence had not even been arrived at. In fact, only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No.1 stood in a 'fiduciary capacity' vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act. In this context, we may usefully refer to a....