TaxTMI 
TaxTMI 
2015 (7) TMI 1385
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....Property'). 4. Needless to state, Ms.Promila Gulati was the plaintiff and her brotherin-law was the defendant in the suit. In our decision we shall be referring to the parties by their nomenclature in the suit. 5. In essence, it was pleaded in the plaint that the plaintiff is the absolute owner of the suit property by virtue of a registered Gift Deed dated September 03, 1984 executed by her father Late Sh.K.B.Midha. She pleaded that the suit property consisted of a ground, first, second and a mezzanine floor and a terrace. She pleaded that the plaintiff along with her children resides on the ground floor of the property. She further pleaded that on account of close family relation between the plaintiff and defendant, as also the fact that the defendant did not own any residential property, the plaintiff allowed the defendant to reside with his wife and children on the first, second and mezzanine floors of the property. She pleaded that no rent was being charged, the possession was permissive and thus the status of the defendant in the suit property was that of a mere licensee. She pleaded that on two occasions she terminated the license of the defendant to reside in the suit prop....
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....as concealed the material facts from this Hon'ble Court and has not stated true facts before this Hon'ble Court. It is submitted that the father-in-law of the plaintiff and father of the defendant namely Sh.Krishan Lal Gulati was blessed with three sons and one daughter. The names of the sons of Sh. Krishan Lal Gulati are Sh.Ashok Gulati, Sh.Amrit Gulati husband of the plaintiff and Anil Gulati/defendant. Initially the father of the replying defendant was carrying on the business of Footwear under the name and style of M/s Sunshine Sandle Works as a Proprietor from the Shop No. 35, D.B.G. Market, Karol Bagh, New Delhi prior to 1960. Where he was joined by his three sons Ashok Gulati, Amrit Gulati (the husband of the plaintiff) and Anil Gulati (the defendant herein) one by one. And the said firm was converted into the partnership firm. It is worthwhile to note that during the period of aforesaid business Shri Krishan Lal Gulati purchased one shop bearing No. 6, D.B.G. Market, in the names of Shri Ashok Gulati and Shri Amrit Gulati from the funds of the partnership firm. Later on as the business flourished one more firm was opened in the year 1984-85 by the name of Suns....
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....ed in the suit property and started residing therein. It will not be out of place to mention herein that in the year 1985 a flat bearing No.EA-39, SSF Area G-8, Maya Enclave, New Delhi was purchased by the father of the replying defendant in the name of the wife of Sh.Ashok Gulati and the family of Sh.Ashok Gulati shifted there. Somewhere in the year 1988 the defendant met with an accident and as a result of which the replying defendant along with his parents shifted to the suit property before raising the construction on the first floor and second floor which was decided amongst the family members. Then the father of the replying defendant as well as replying defendant raised the constructions on the first floor and second floor in the year 1989-1990 and as per the agreement amongst the parties after the completion of the first floor and second floor the replying defendant who was unmarried at that time started residing along with his parents on the first floor and second floor of the property bearing No. 205, AGCR Enclave, Delhi. It is worthwhile to note that in the year 1990 a plot at Rohini was allotted to Sh. Amrit Gulati and the payment of which was made from the joint ....
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....erments made by the defendant in the written statement, particularly the averment(s) that the plaintiff is a benami owner of the suit property. It was pleaded that Late Sh.K.B.Midha, the father of the plaintiff, gifted the plot over which the suit property is constructed out of love and affection for his daughter i.e. the plaintiff; that the plaintiff had raised constructions on the said plot from the funds of her istridhan and savings. It was specifically pleaded that the defence of benami ownership of the plaintiff over the suit property raised by the defendant is barred in law by virtue of the provisions of sub-Section (2) of Section 4 of Benami Transaction (Prohibition) Act, 1988. 10. After completion of pleadings, the plaintiff filed an application under Order XII Rule 6 of the Code of Civil Procedure praying for a decree on admission; essentially on the grounds that: - (i) the written statement filed by the defendant shows that the defendant has admitted the execution of registered Gift Deed dated September 03, 1984 by Late Sh.K.B.Midha whereby he gifted the plot upon which the building was erected to his daughter i.e. the plaintiff; and (ii) defence of benami ownership of t....
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....on record by the defendant to show/indicate that Late Sh .Kishan Lal Gulati (father of defendant/father-in-law of plaintiff) had paid sale consideration of the plot on which the suit property was constructed to Late Sh .K.B. Midha (father of the defendant) upon which Late Sh. K.B. Midha had executed Gift Deed dated September 03, 1984 in respect of said plot in favour of the plaintiff. (c) The pleas raised by the defendant in his written statement cannot be accepted in view of prescription(s) contained in Section 91 of Evidence Act, 1872 which provide that where the terms of a contract have been reduced in the form of a document and where the matter is required by law to be reduced in the form of a document, no evidence shall be given in proof of the terms of such document except the document itself and Section 92 of Evidence Act, 1872 which provides that where the terms of the contract required by law to be reduced in the form of a writing have been proved according to Section 91, no evidence of any oral agreement for the purposes of contradicting, varying, adding to, or subtracting from its terms shall be admitted. In so concluding, reliance has been placed upon by the learned S....
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.... C The learned Single Judge committed an error in granting prayer for decree of admission made by the plaintiff for the reason the real import of the transaction whereby the father of the plaintiff gifted the plot over which the suit property was constructed to the plaintiff and status of ownership of the plaintiff over the suit property could be determined only after trial. It was argued that merely on the ground of bar contained in Section 4 of the Benami Transactions (Prohibition) Act, 1988 the suit could not have been decreed at the preliminary stage. In said regards, heavy reliance was placed upon the decision of the Supreme Court reported as (2012) 5 SCC 342 Marcel Martins vs. M. Printers & Ors and decision of learned Single Judge of this Court reported as AIR 1992 Delhi 352 Mahinder Singh vs. Pardaman Singh. 16. The rule of blending was explained by the Supreme Court in the decision reported as (1961) 3 SCR 779 Mallesappa Bandeppa Desai & Anr vs. Desai Mallappa alias Malesappa & Anr in the following terms:- "The rule of blending postulates that a coparcener who is interested in the coparcenery property and who owns separate property of his own may be deliberate and intent....
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....nsaction" to mean "any transaction in which property is transferred to one person for a consideration paid or provided by another person". 21. Section 3 of the Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions and reads as under:- "(1) No person shall enter into any benami transaction. (2) Nothing in this sub-section (1) shall apply to the purchase of the property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. (3) Whoever enters to any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and bailable." 22. Section 4 of the Benami Transactions (Prohibition) Act, 1988, which is at the centre of controversy in the present case, reads as under:- "(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 h....
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....1 State of Maharashtra vs. Narayan Rao). The exception contained in Section 4(3)(a) of the Act restricts its benefit only to property held by a "coparcener in a Hindu Undivided Family" as opposed to any "Member" of such family. It is so, because coparceners are recognized by law to jointly by birth inherit rights in the joint property of the family property and in the event such property stands in one of their names for the benefit of others, the Benami Act is declared to not come in the way. Such benefit however cannot be extended to all/any members of such family who do not have any vested right in the property and to whom such property devolves in their independent/separate capacity by way of intestate succession under the Hindu Succession Act. 26. We repeat, the plaintiff, being the daughter-in-law of the family is not a coparcener in the Hindu Undivided Family of Late Sh.Krishan Lal Gulati. In view of the fact that requisite (ii) noted above is not fulfilled, exception contained in Section 4(3)(a) of the Act has no application in the instant case. 27. This takes us to the second exception relating to plea of benami ownership contained in Section 4(3)(b) of the Benami Transac....
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....onfidence for his sisters and his father and prohibition contained in Benami Transactions (Prohibition) Act, 1988 to be inapplicable. In essence, four facts which led the Supreme Court to hold the case to be covered by Section 4(3)(b) of the Act are as follows:- (i) flow of sale consideration of the property from the father (husband); (ii) the father and daughters being in occupation of the property; (iii) father and daughters having a right to purchase and having desired to purchase in the joint names but the purchase being effected in the name of the son only for the reason of the seller insisting on sale in a name of only one heir and (iv) the agreement between the parties recording the son holding the property in trust and for the benefit of father and daughters. 34. In Marcel Martin's case (supra), with reference to the existence of a fiduciary relationship in a given case, the Supreme Court observed as under:- "38. In determine whether a relation is based on trust or confidence, relevant to determine whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which question arises for it is only in the factual backdrop ....
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....e party pleading relies for its claim or defence, it needs however be noted that Rule 4 of the same Order further expands by requiring particulars to be given where necessary. Rule 4 of Order VI reads as under:- "4. Particulars to be given where necessary - In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading." 42. In a leading pronouncement on the subject of pleadings, being the decision reported as 2011 (6) SCALE 677 Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors. highlighting how frivolous litigations are being instituted and how these frivolous litigations are choking the stream of justice, with reference to importance of pleadings, in sub-para A of para 52 of the decision, the Supreme Court observed as under:- "A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check a....