TaxTMI 
TaxTMI 
2021 (12) TMI 1162
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....pecial Civil Suit No.46 of 2011 before the learned IInd Joint Civil Judge Senior Division, Dhule for partition, possession and perpetual injunction. The said suit came to be decreed on 13.12.2012. The said decree was challenged by original defendant by filing Civil Appeal No.9 of 2013. The said appeal was dismissed by learned Adhoc District Judge-1, Dhule on 02.02.2017. Hence, this second appeal. Both the civil applications have been filed for stay to the impugned decrees. In fact, when Civil Application No.3345 of 2017 was filed, it appears that the matter was not taken up for even circulation by the appellant, but then during the pendency of the appeal and the application, final decree proceedings were taken up before the Executing Court ....
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....to the suit property in the rented premises. His father-in-law extended financial aid in the year 1982 to purchase the open space of the suit property and then defendant purchased the suit property from one Hanumantrao in the name of his mother, as she was elder in the family. His father had not given a single pai since he had died prior to the transaction itself. Thereafter, the defendant has made construction out of his own funds. Plaintiff cannot get any share in the suit property. 5. The learned Senior Counsel appearing for the appellant submitted that both the Courts have held that the suit property is ancestral property. The evidence adduced by the defendant has been unnecessarily discarded. Defendant had produced on record the appli....
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....d Senior Counsel relied on the decision in Sri. Marcel Martins Vs. M. Printer & Ors., [AIR 2012 SC 1987], wherein it has been held "when the relationship between the parties is fiduciary relationship, then such transaction is completely saved from the mischief of Section 4 of the Benami Transactions (Prohibition) Act, 1988 by reason of the same falling under Sub-section 3(b) of Section 4. Further, reliance has been placed on the decision in Sankara Hali and Sankara Institute of Philosophy and Culture Vs. Kishori Lal Goenka, [1996 (7) SCC 55], which was the three Judge Bench decision of the Hon'ble Supreme Court, wherein it has been held :- "5. The Act prohibits entering into benami transactions and says that no person shall enter into any....
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...., wherein it has been held that "Bar of plea of Benami is not applicable to purchase of property by a person in the name of his wife or unmarried daughter, provided it is proved that the property was not purchased for the benefit of his wife or unmarried daughter, because of statutory presumption contained in Sub- Section (I) of Section III that unless a contrary is proved that purchase of property by the person in the name of his wife or unmarried daughter was for benefit." Further, reliance has been placed on the decision in R. Rajagopal Reddy (Dead) by LRs. and others Vs. Padmini Chandrasekharan (Dead) by LRs., [(1995) 2 SCC 630] , wherein it has been held that "Section 4(1) of Benami Transactions (Prohibition) Act, 1988 is not retrospec....
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.... on the basis of the surrounding circumstances; the relationship of the parties; the motives governing their action in bringing about the transaction and their subsequent conduct etc." 9. At the outset, it is to be noted that as regards the point as to whether the transaction in question was a Benami and whether the defence of the defendant that in fact he is the exclusive owner and not his mother, though the property was standing in her name, could have been allowed to be raised in view of Section 4 of Benami Transactions (Prohibition) Act, 1988, was not considered by both the Courts below. But, definitely, that point which is the law point, which can be framed here, will have to be gone into because if the defendant could not have been a....
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....those documents appear to be fabricated. The defendant was the Secretary of the Patpedhi, from whom it was shown that he had raised loan. Therefore, as regards factual aspect is concerned, it is not giving any rise to a substantial question of law, however, the nature of the property and whether the defendant could have raised defence of exclusive ownership, though the property stood in the name of his mother, deserve to be resolved/adjudicated in this case. Hence, the second appeal stands admitted. Following are the substantial questions of law :- I) What was the nature of the suit property i.e. as to whether ancestral or of exclusive ownership of defendant No.1? II) Whether the defendant could have been allowed to take defence that th....