2011 (2) TMI 1576 - HC - Benami Property

Summary

Issues Involved:
1. Valuation of the suit for court fee and jurisdiction.
2. Whether the suit property was thrown into the hotchpotch of joint family pool and treated as joint family property.
3. Status of the defendant as a licensee.
4. Entitlement of the plaintiff to recover mesne profits.
5. Relief.

Detailed Analysis:

1. Valuation of the Suit for Court Fee and Jurisdiction:
The trial court did not specifically address this issue in the final judgment, indicating that it was not a significant point of contention or that it was resolved in favor of the plaintiff.

2. Joint Family Property Claim:
The defendant claimed that the house in dispute was thrown into the joint family pool by the plaintiff, thereby making it joint family property. However, the court found that the house was the personal property of the plaintiff, purchased with funds remitted by him from abroad. The defendant's claim that their father also contributed to the purchase was not substantiated by evidence. The court emphasized that for the doctrine of blending to apply, there must be existing coparcenery property, which was not the case here. The court cited the Division Bench judgment in "Kewal Krishan Mayor v. Kailash Chand Mayor and Ors." to support its conclusion that the absence of coparcenery property invalidates the claim of blending separate property into joint family property.

3. Status of the Defendant as a Licensee:
The court held that the defendant was a bare licensee, allowed to live in one room and a bathroom on the ground floor of the house without any charges. This license was revoked when disputes arose between the brothers, and the defendant refused to vacate, necessitating the plaintiff's suit for possession.

4. Entitlement to Recover Mesne Profits:
The trial court awarded mesne profits to the plaintiff at Rs. 5000 per month from May 1, 1999, until the defendant vacated the premises. The High Court affirmed this award for the period of three months prior to the institution of the suit, considering the location of the property in a posh area of Delhi. However, the award of mesne profits for the period after the filing of the suit was set aside due to the lack of an enquiry as mandated by Order XX Rule 12 of the Code of Civil Procedure.

5. Relief:
The High Court dismissed the appeal regarding the decree of possession and mesne profits for the three months prior to the suit. The counter-claim for partition was formally rejected, as the house was not joint family property. The decree for mesne profits post-suit filing was set aside due to procedural non-compliance. The appellant was granted three months to vacate the premises.

Conclusion:
The High Court affirmed the trial court's decision on possession and mesne profits for the pre-suit period, rejected the counter-claim for partition, and set aside the post-suit mesne profits award due to lack of mandatory enquiry. The appellant was given three months to vacate the property.