TaxTMI 
TaxTMI 
2015 (2) TMI 1362
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....aintiff and against the defendants whereby permanent restraining the defendants for creating any third party interest in the said suit property and further permanently restraining them to part with the possession of the suit property and further permanently restraining the defendant from interfering with the peaceful possession of the plaintiff in the suit property. 2. Plaintiff Smt.Promila Gulati, daughter of late Sh .K.B. Midha, wife of Sh. Amrit Gulati, claims herself to be the absolute owner of the suit property bearing No.205, AGCR Enclave, Delhi-110092 by virtue of various title documents such as Gift Deed dated 3rd September, 1984 duly registered at the office of the Registrar executed by late Sh. K.B. Midha son of late Sh. Hans Raj, who was residing at 65/74, Rohtak Road, New Delhi-110005. 3. The suit property is in possession of the plaintiff which consists of ground floor, first floor, second floor and open terrace. The plaintiff is regularly paying the house tax of the said property to the local authority and under the record of the mutation the name of the plaintiff is recorded. The site plan of the built up property is annexed with the present plaint. 4. The defenda....
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...., Sh. Amrit Gulati husband of the plaintiff and Anil Gulati/defendant. Initially the father of the 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 above said three sons one by one and the said firm was converted into the partnership firm. 6. The aforesaid business Sh. Krishan Lal Gulati purchased one shop bearing No.6, D.B.G. Market, in the name of Sh. Ashok Gulati and Sh. 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 Sunshine Footwear which started functioning from 6, D.B. Gupta Market, locality as Sunshine Footwears. While Sunshine Sandle Works continued to be run by Mr. Krishan Lal Gulati and Ashok Kumar Gulati, the day to day affairs of Sunshine Footwears was being looked after by Amrit Gulati and Anil Gulati. The creation of new firm and retirement of aforesaid partners namely Amrit Gulati and Anil Gulati from M/s Sunshine Sandle Works was an internal arrangement and family continued to remain joint and th....
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....lotted to Sh. Amrit Gulati and the payment of which was made from the joint account and from the funds of the business. In the year 1991 division of business took place in the family and by virtue of which the defendant and Amrit Gulati started their business and created their own separate firm under the sole proprietorship firm from the same premises i.e. 6, D.B.G. Market, Karol Bagh, New Delhi. The ground floor was retained by Sh. Amrit Gulati who started his firm in the name and style of Sun Shine Sales Corpn. and mezzanine floor remained with the defendant from where the defendant started his own business in the name and style of Like Shoes. At the same time understanding was reached among the family members and it was decided and agreed that Amrit Gulati through his wife shall remain the owner of the ground floor of the suit property apart from the plot at Rohini and defendant shall be the owner of the first floor and second floor of the suit property. It was decided that eldest son Sh. Ashok Gulati will be the owner of the flat at Mayapuri. It was also decided that after the demise of the parents of the defendant the property at Subhash Nagar shall go to Ashok Gulati and it w....
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....d one shop bearing No. 6, D.B.G.Market, in the name of Shri Ashok Gulati and Shri Amrit Gulati from the funds of the partnership firm. It is also denied that later on as the business flourished one more firm was opened in the year 1984-85 by the name of Sunshine Footwear which started functioning from 6, D.B. Gupta Market, locality as business Food Wears, while Sunshine Sandle Works continued to be run by Mr. Krishan Lai Gulati and Ashok Kumar Gulati, the day to day affairs of Sunshine Footwears was being looked after by Amrit Gulati and Anil Gulati. It is further denied that the creation of new firm and retirement of aforesaid partners namely Amrit Gulati and Anil Gulati from M/s. Sunshine Sandle Works was an internal arrangement and family continued to remain joint and the business was also joint. It is denied that the power of total control and important decisions however, remained with Late Krishan Lal Gulati in respect of both the firms, be being the head of family and founder of both the firms. It is also denied that Ashok Gulati and Amrit Gulati were married prior to 1984 and Anil Gulati got married in 1998. It is denied that Krishan Lal Gulati with his wife, all his childre....
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....or in the year 1989-1990 and as per the agreement amongst the parties after the completion of the first floor and second floor the defendant who was unmarried at that time started residing alongwith his parents on the first floor and second floor of the property bearing No. 200 AGCR Enclave, Delhi. It is also denied that in the year 1990 a plot at Rohini was allotted to Shri Amrit Gulati and the payment of which was made from the joint account and from the funds of the business. It is also denied that in the year 1991 division of business took place in the family and by virtue of which the defendant and Amrit Gulati started their business and created their own separate firm under the sole proprietorship firm from the same premises i.e. 6, D.B.G. Market, Karol Bagh, New Delhi. It is also denied that the ground floor was retained by Sh. Amrit Gulati who started his firm in the name and style of Sun Shine Sales Corporation and mezzanine floor was remained with the defendant from where the defendant started his own business in the name and style of Like Shoes. It is also denied that at the same time understanding was reached among the family members and it was decided and agreed that A....
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....see in the property and that licence has already been terminated vide legal notice dated 3rd May, 2010. 9. On completion of pleadings, the plaintiff filed an application bearing I.A. No.17289/2012 under Order XII Rule 6 CPC for passing of the judgment on admission made by the defendant. It is stated that as per the provisions of law under Order XII Rule 6 CPC, this Court has ample power to decree the suit of the plaintiff, the Court may at any stage of the suit either on the application or its own motion without determination of any other question between the parties make such order or give such judgment as it may think fit having regard to such admission. 10. It is apparent that the said defence taken by the defendant is barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. The operative part of the law reads as under : "4. Prohibition of the right to recover property held benami - (1) ... (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....
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.... is only the purchase of property in the name of wife or unmarried daughter which is exempted from the prohibition and even purchase in the name of son or married daughter has not been given that status; iii) once the legislature has expressly conferred exemption in the name of the wife or unmarried daughter, it is to be deemed that such restricted exclusion cannot be extended or made applicable to others; iv) that in view of the repealed Sections 81and 82, there cannot be the same concept of trusteeship or fiduciary capacity as was the position prior to 1988; and v) that after the repeal of Sections 81 and 82, it is only those instances of fiduciary capacity, such as property of a partnership firm held in the name of one of the partners or property which Mr. X wanted Mr. Y to buy in the name of Mr. X but in violation of that instruction, Mr. Y buying the property in his own name can Y be said to be standing in a fiduciary capacity and as a trustee of X, that the exemption under Section 4(3)(b) of the Benami Act would apply. 30. I find the aforesaid view to have been followed in D.N. Kalia Vs. R.N. Kalia 178 (2011) DLT 294 where also, the defence of the plaintiff being only the B....
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....ion to purchase the properties in the name of X. Thus, the said dicta of the Division Bench also does not come in the way of holding the claim in the present case to be barred by the Benami Act. 34. Similarly, the facts of the recent judgment of the Supreme Court in Marcel Martins Vs. M. Printer (2012) 5 SCC 342 were entirely different. There in the facts, the relationship of trust was found to exist. Such is not the case here. Moreover, the Supreme Court in the said judgment held that in determining whether a relationship is based on trust or confidence relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence of a fiduciary relationship can be deduced in a given case. 35. In the present case, the pleas of the plaintiff fall in the genre of "fantastic". The prevalent market practice is of giving stock options to the employees and not of "parking‟ the stocks with the employees. 36. Some other obvious inconsistencies going to the root of the matter are also found in the case of the plaintiff. Though the plain....
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....d on the plaintiff payable to the defendant. Decree sheet be drawn up." 12. In the case of Ramesh Advani vs. Hiro Advani & Anr. being CS(OS) 1828/2012, decided on 16th July, 2013, this Court in paras 8 to 16 and paras 19 to 38 observed as under: "8. I will first take up the aspect of the maintainability of the suit in view of the bar of the Benami Act in as much as if the suit were to be found to be not maintainable, the question of adjudicating the applications aforesaid would not arise. 9. The claim of the plaintiff in the suit, in a nutshell, is that the property aforesaid was acquired and built by the father of the parties from his self acquired funds but in the name of the defendant no.1 and the family then was a Joint Hindu Family. 10. The Benami Act was enacted to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto. Section 2(a) thereof defines benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 4 thereof bars any suit claim or action to enforce any right in respect of any property held benami a....
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....city earlier of / towards the father and now of / towards the plaintiff and the defendant no.2; and, (ii). the property was held by the defendant no.1 earlier for the benefit of the father and now for the benefit of the plaintiff and the defendant no.2 for whom he is the trustee or towards whom he stands in such fiduciary capacity. 16. The bar imposed by the Benami Act is invariably found to be got rid of by pleading a case to be under either of the aforesaid two exceptions. The question which arises for consideration is, whether such a plea has been made by the plaintiff and even if be so, whether a mere plea of the case falling in exceptions aforesaid is enough for the case to be set down for trial and which, experience of life shows generally drags on for several years, putting a clog on the property and thereby depriving the recorded owner thereof from exercising rights with respect thereto and often compelling him/her to settle with the claimants, negating the enactment of Benami Act and allowing litigation before the Courts to be used as a tool of coercion or oppression. x x x 19 The exception in Section 4(3)(a) to the applicability of the Benami Act uses the term "Hin....
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....d the plaintiff and the two defendants becoming the 1/3rd owners each of the property on the intestate demise of their father and mother and being their only class I heirs under the Hindu Succession Act. 21. Mulla‟s commentary on Hindu Law, 18th Edition under para 214 thereof explains the genesis of coparcenery as under:- A coparcenary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or greatgrandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the selfacquired property of A during A's lifetime, but on A's death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the property by reason of his birth, and the property inherited by B from his father A becomes ancestral property in his (B's) hands, and B and C are coparceners as regards the property. If B and C continue joint, and a son D is born to C, he enters the coparcenary by the mere fact of his birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener. 22. The Supreme Court in Makhan Singh Vs. Kulwant Singh (2007) 10 SCC ....
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....ier or now. The counsel candidly admitted that there is none. 25. Merely because a person at the time of acquisition of the property may be residing with his parents and siblings and merely because the sale consideration has flown from the parents or from some other siblings is not enough to bring a case within the exception aforesaid to the prohibition contained in Benami Act. It cannot be lost sight of that benami transactions prevalent earlier, generally were between family members and hardly ever in the name of absolute strangers, and if pleas as in the present case were to be held to be falling within the exception clause, would negate the legislative intent of prohibiting actions to enforce rights in respect of property held benami. 26. I have considered whether the long admitted possession at least from the year 1967 till 2006-2007 i.e. of nearly 40 years of plaintiff of the premises can be said to raise any presumption of jointness or of the intent but I am unable to hold so. Such possession has to be seen in the context of Indian conditions where siblings especially brothers living together, even after their marriages, in a house belonging to one of them, is not uncomm....
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....r VII Rule 11 of the CPC. However in that case there were averments in the plaint of the property being held for the benefit of coparcerners in the family and the defendant holding the property as a trustee for the benefit of all the family members and which as aforesaid are lacking in the present case. I therefore do not consider myself bound by the said judgment. Mention in this regard may also be made of another Division Bench of this Court in Babita Pal Vs. Jagdish Bansal 196 (2013) DLT 792 where also a plea for summary dismissal of the suit for reason of the claim therein being barred by the Benami Act was rejected for the reason that the real import of the transaction and the relation between the parties could be determined only after trial. However, I do not consider myself bound thereby also for the reason discussed in detail in my recent pronouncement dated 04.07.2013 in CS(OS) No.1026/2010 titled Peeyush Aggarwal Vs. Sanjeev Bhavnani and for which reason it is not deemed necessary to burden this judgment therewith. 30. That brings me to the only document in this regard filed by the defendant no.1 and qua which application aforesaid has also been filed by the plaintiff f....
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....rein as a licencee of the defendant no.1 and once it is found that the plaintiff on the date of institution of the suit was not living in the property, mere finding of the goods and articles belonging to the plaintiff in the said premises would not entitle the plaintiff to be put back into possession. Reference in this regard may be made to Section 65 of the Indian Easement Act, 1882 which provides the remedy of dispossessed licensee as for compensation only and not for repossession. I have had an occasion to discuss this aspect in detail in a recent judgment in Keventer Agro Limited Vs. Kalyan Vyapar Pvt. Ltd. MANU/DE/1479/2013 and need is thus not felt to reiterate the same here. 38. The suit is accordingly dismissed as barred by the provisions of the Benami Act. Resultantly all pending applications are also dismissed; however in the circumstances no costs. Decree sheet be drawn up." 13. In the case of P.E. Lyall vs. Balwant Singh, 187 (2012) DLT 164, the Court held as under : "Though, the impugned judgment of the trial Court is a detailed judgment running into 26 pages and deciding all the issues in the two suits, I need not go into the details on any of these aspects inasm....
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.... bar to the taking of defence in the written statement of the property benami in view of Section 4(2) of the Act. 10. In view of the above, I hold that the defences which were taken by the appellant/defendant No.1 in the two suits of the plaintiff/respondent being only a benamidar and not the real owner and that the father-late Sh. Jiven Singh was the owner of the property are hit by provision of Section 4(2) of the Act. Since the defence itself is barred, nothing else is required to be looked into." 14. Having gone through the pleadings of the parties and the entire gamut of the case, it is admitted position that the father of the plaintiff has gifted the suit property in favour of the plaintiff. The defendant has not disputed the fact that it is a registered document. In nutshell, the case of the defendant is that there was an oral family settlement by virtue of which the suit property has come into the favour of the defendant. Admittedly, the Gift Deed is registered Gift Deed which is dated 3rd September, 1984. On the basis of the registered Gift Deed, a conveyance deed dated 12th October, 2000 was also registered in favour of the plaintiff undisputedly. Defendant did not take....
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....e 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 contract except the document itself; Section 92 of the Evidence Act provides that where the terms of the contract required by law to be reduced in the form of a document have been proved according to Section 91, no evidence of any oral agreement between the parties for the purpose of contradicting, varying, adding to, or subtracting from its terms shall be admitted; though there are exceptions to both the said provisions but the same have not been invoked by the respondents/plaintiffs or their counsel and the case is not found to be falling in any of the exceptions; (d) it is also the settled position in law (See Chandrakant Shankarrao Machale Vs. Parubai Bhairu Mohite (2008) 6 SCC 745 and S. Saktivel Vs. M. Venugopal Pillai (2000) 7 SCC 104) that the terms of a registered document can be varied/altered by a registered document only; in Raval & Co. Vs. K.G. Ramachandran (1974) 1 SCC 424 it was specifically held that any variation of rent reserved by a registered lease deed must be made by another registered instrument;" (b)....
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....application for leave to defend as defence, it is merely a moonshine defence. The said grounds have no application in law." 17. The following judgments are relevant for the purpose of considering the prayer made in the present application under Order 12 Rule 6 CPC : (a) In Rameshwar Prasad Gupta Vs. Rajinder Kumar Gupta and Ors., IAs 6852/2011 and 13665/2009 in CS (OS) No. 2362/2008, Decided On: 18.07.2011, it was observed that: "The law on admission is well settled by this Court in various decisions, some of them are as under: (a) Umang Puri v. Lt. Col. Pramode Chandra Puri 165 (2009) DLT 245 wherein it was held that the admissions need not be made expressly in the pleadings and even on constructive admissions, the Court can proceed to pass a decree in favour of the Plaintiff under Order 12 Rule 6, CPC. (b) National Textile Corporation Ltd. and Anr. v. Ashval Vaderaa 167 (2010) DLT 602 wherein it was held that admission can be found even in the statement of parties recorded in the court and admissions may also be gleaned from vague and unspecific denials. (c) Madan Lal Kaushik v. Shree Yog mayaji Temple and Ors. 178 (2011) DLT 398 wherein it was held that if the defense is i....
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....position of law and/or fact which need investigation and so could be decided after trial giving parties opportunities to adduce such relevant evidence as they may think necessary and proper. Material proposition of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved. If a plea is not valid and tenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable court time." 18. In view of the aforesaid reasons, it is clear that defendant has no right or interest in the suit property. It appears to the Court that the contention raised by the defendant is an afterthought and the defence raised by the defendant is moonshine. Therefore, trial in the matter is not required in view of registered titles in favour of the plaintiff for the last thirty years which are unchallenged by the defendant. On the contrary, the defendant has failed to enforce an alleged oral family settlement which is denied by the plaintiff and the ....