TaxTMI 
TaxTMI 
2013 (7) TMI 1176
X X X X Extracts X X X X
X X X X Extracts X X X X
....t son i.e. defendant no. 1 Shri Hiro Advani; (b). it was at that time a Joint Hindu Family comprising of the said Shri Leelaram Jagatrai Advani as head of the family, his wife Smt. Lachmi Advani, their two sons i.e. the plaintiff and the defendant no. 1 and their daughter i.e. defendant no. 2; (c). that a two and a half storeyed building was constructed by Shri Leelaram Jagatrai Advani thereon immediately after purchasing the plot "out of his self acquired own funds"; (d). that since construction aforesaid the family has been living therein jointly; the marriage of defendant no. 2 was performed by Shri Leelaram Jagatrai Advani in 1966 "out of his own funds"; thereafter the defendant no. 2 and subsequently the plaintiff were also married; (e). the ground floor was let out by Shri Leelaram Jagatrai Advani to a tenant; (f). that after the intestate death of Shri Leelaram Jagatrai Advani in 1976 the defendant no. 1 started living on the ground floor and the plaintiff on the first floor of the house along with the mother, with the barsati floor let out to a tenant by the mother of the parties; (g).....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... defendant no. 2 supporting the plaintiff. 3. The defendant no. 1 in his written statement has contested the claim in suit pleading:- (i). that the suit has neither been valued properly for the relief of declaration claimed nor has the appropriate Court fees been paid thereon; (ii). that the defendant no. 1 had sent a legal notice dated 16th September, 2003 asking the plaintiff to vacate the first floor, which was duly delivered and the suit claim is barred by time; (iii). that there was no Joint Hindu Family though the family was living jointly; (iv). the defendant no. 1 was gainfully employed in Federation of Associations of Small Industries of India in the year 1960 as a Stenographer and was in the year 1964 when the plot was acquired, drawing a salary of about Rs. 400/- per month; (v). the plot aforesaid was allotted to the defendant no. 1 by the DDA under the LIG Scheme; (vi). that the defendant no. 1 deposited Rs. 300/- in cash with the DDA on 7th October, 1963 and upon allotment vide letter dated 13th January, 1964 DDA asked the defendant no. 1 to deposit further amount of Rs. 2,590/....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p;(xv). that the plaintiff and his wife on 31st May, 2012 suddenly wanted to take possession of the first floor. 4. The plaintiff has filed a replication, (a) controverting that the suit is not properly valued and service of legal notice dated 16th September, 2003; (b) denying for want of knowledge that the defendant no. 1 was employed since the year 1960 and pleading that it was the father of the parties who had applied to the DDA in the name of the defendant no. 1 and had paid all the amounts therefore and the challans of deposit filed by the defendant no. 1 with his written statement are in the handwriting of the father; (c) pleading that all the records are in the name of the defendant no. 1 because the application for allotment and the allotment were in the name of the defendant no. 1; (d) pleading that the defendant no. 1 had himself executed an affidavit dated 23rd December, 1974 affirming and declaring that he was a member of the Joint Hindu Family headed by father also resident of the suit property and that his father had purchased the said plot and raised construction thereon and which affidavit also bears the signature of the father of the parties and the defendant no....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... very long period of time and the condition thereof was such that no person could possibly be living therein in the recent past. The keys of the lock on the door of the first floor have been deposited by the Court Commissioner in this Court. 6. Arguments on the applications of the plaintiff for interim relief restraining the defendant no. 1 from interfering in the use and enjoyment by the plaintiff of the first floor and common use of the barsati floor and of delivery of keys of the first floor lying deposited in this Court and for this Court to on its own compare the signatures purportedly of the defendant no. 1 on the affidavit dated 23rd December, 1974 and the admitted signatures of the defendant no. 1 on the Court record and for sending of the said documents to a recognized Government Forensic Science Laboratory for comparison were heard on 21st May, 2013 when the counsel for the plaintiff was asked to address also on the aspect of maintainability of the suit in view of the bar of the Benami Transactions (Prohibition) Act, 1988 (Benami Act) (though no such plea was taken by the defendant no. 1) and arguments on the said aspect also heard and order reserved. 7. I will f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 13. Though the counsel for the plaintiff has not elaborated but it is obvious that for the plaintiff to fall in the exception provided in clause (a) supra, the plaintiff has to plead/prove/establish:- (I). the existence of a Hindu undivided family; (II). that the defendant no. 1 and in whose name the property is held is a coparcener of the said Hindu undivided family; and, (III). that the property is held by the defendant no. 1 for the benefit of the coparceners in the family. 14. Similarly, for the claim of the plaintiff to fall in the exception provided in clause (b) supra (and invoking which the plea of benami was held to be not applicable, in Marcel Martins supra) the plaintiff has to plead/prove/establish:- (i). that the defendant no. 1 in whose name the property is held is a trustee of or was otherwise standing in a fiduciary capacity earlier of/towards the father and now of/towards the plaintiff and the defendant no. 2; and, (ii). the property was held by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... suit property in the present suit. That after construction of the building, the family has been living therein jointly. But even after the marriage of plaintiff and defendant No. 1, the family has been living jointly in the same house. However, the ground floor was let out by Shri Leelaram Jagatrai Advani to a tenant. That Shri Leelaram Jagatrai Advani died intestate in 1976 leaving behind him following legal heirs:- (a) Smt. Lachmi Advani (Widow) (b) Mr. Hiro Advani (Son) (c) Mrs. Manju Keswani & Hardevi Advani (daughter). (Her name prior to marriage was Hardevi Advani which was changed by her husband and in-laws after marriage to Manju Keswani). (d) Mr. Ramesh Advani (Son) Unfortunately in 1990, Smt. Lachmi Advani also died intestate, leaving behind her the following legal heirs:- (a) Mr. Hiro Advani (Son) (b) Mrs. Manju Keswani & Hardevi Advani (daughter). (Her name prior to marriage was Hardevi Advani which was changed by her husband and in-laws after marriage to Manju Keswani). (c) Mr. Ramesh Advani (Son) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a) though uses the word Hindu Undivided Family, but being in the nature of an exception to the general rule of prohibition of the right to recover property held benami, has to be construed strictly so as not to make the prohibition redundant. From the use of the word coparcenary in conjunction with Hindu Undivided Family in Section 4(3)(a), the reference to Hindu Undivided Family has to be read as a reference to a coparcenary and which as aforesaid as held by the Supreme Court is a narrower body than the joint family. Thus the plea in the plaint of the existence of a joint Hindu family and in the absence of any plea of coparcenary cannot be read as a plea of exception carved out in Section 4(3)(a). 19. Though it is pleaded that the family at the time of acquisition of the plot was a joint Hindu family but it is nowhere pleaded that the plot was acquired or construction raised thereon from the funds of the family. Rather the plea is of the plot having been acquired and the construction being raised from the self acquired funds of the father and the father exercising the rights over the property as owner and the plaintiff and the two defendants becoming the 1/3rd owners each of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the property on the demise of the father being inherited by all his class I heirs i.e. including the mother and the sister and which also is a clear indication of absence of any coparcenary or the property being of any coparcenary. 23. The Supreme Court in Mayor (H.K.) Vs. Vessel M.V. Fortune Express (2006) 3 SCC 100 and recently followed by the Division Bench of this Court Santosh Malik Vs. Maharaj Krishan while upholding the order of rejection of the plaint on the ground of the claim therein being barred by the Benami Act, held that the plaint has to be read meaningfully and not formally and it is the duty of the Court to see whether a real cause of action has been made out in the plaint or something illusory has been projected and that after so reading, vexatious plaints have to be thrown out. In fact during the course of hearing it was repeatedly asked from the counsel for the plaintiff whether there was anything else to show that there was a coparcenary in fact in existence at any time; whether any Income Tax returns thereof were filed; whether there was any other joint property of the parties earlier or now. The counsel candidly admitted that there is none. 24. Merel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions towards the sale consideration for conversion of the tenancy rights into ownership rights and it was in these facts that the Supreme Court held the plea of benami to be not available and held the case to be falling in the exception. The present is however not a case of parties acquiring title to the property from a common ancestor; rather the case is that the common ancestor from his self acquired funds had acquired the subject property in the name of the defendant no. 1. The said plea, even if were to be ultimately proved, is squarely in the teeth of the prohibition in the Benami Act. 28. I would be failing in my duty if do not refer to the Division Bench dicta in Manjeet Singh Anand Vs. Sarabit Singh Anand where rejection of the plaint on the ground of claim therein being barred by the Benami Act was denied on the existence in the plaint of the plea of existence of a joint family and which was held to imply Hindu Undivided Family, observing that though the case of the plaintiff therein was weak and not likely to succeed but holding the same to be no ground for ousting the plaint under Order VII Rule 11 of the CPC. However in that case there were averments in the plaint of....