2021 (9) TMI 317

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....udge on 12.02.2015. The plaintiff-respondent filed a civil suit (O.S. No.1381 of 2010) claiming a decree for mandatory and permanent injunction for directing the defendant, the present appellant to hand over vacant possession of the property in question. The Plaintiff also claimed mesne profits. The plaintiff had pleaded that she became the owner of property bearing No.205, AGCR Enclave, Delhi by virtue of gift deed executed on 03.09.1984 by her father- Late Sh. K.B. Midha. It is pleaded that after the gift deed, the property is in possession of the plaintiff which consists of ground floor, first floor, second floor and the open terrace. It is also pleaded that defendant-appellant was not owner of any residential property, therefore, ....

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....being sons of Late Sh. Krishna Lal Gulati. The property in question was gifted by the father of the plaintiff to her daughter i.e. the plaintiff. The defendant in the written statement pleaded many other facts relating to joint business of the family and the partition of the assets of family of Late Sh. Krishan Lal Gulati. The assertion made by the defendant in the written statement was denied by filing a rejoinder. An application was filed titled to be one under Order XII Rule 6 of the Code of Civil Procedure, 1908 (in short 'CPC'). On the basis of the said application, the Single Judge decreed the suit on 12.02.2015. It is the said judgment passed by the Single Judge which was affirmed in an intra court appeal by the Division Bench. Le....

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....nd 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." ***omitted by Central Act 43 of 2016 The arguments of learned counsel for the appellant are that the plaintiff is member of the family who has been gifted the property by her father, therefore, she is holding the property in fiduciary capacity as against the defendant. It is also argued that there is no admission in the written statement on the basis of which the suit could be decreed under Order XII ....

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.... no applicability to the fact of the present case. In the said judgment, the dispute was between the father and the son. The plaint was filed by the son. An application was filed for rejection of the plaint which was allowed by the High Court but this court reversed it. This Court held that the suit raises triable issue and needed to be decided on merits. That is a case between father and son who are coparceners falling in Clause (a) of sub-Section (3) of Section 4 of the Act. But in the present case, the father of the plaintiff had no fiduciary relationship with the defendant falling in Section 4(3)(b) of the Act. The finding recorded by the Division Bench of the High Court in respect of blending of the property by the plaintiff in the ....