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2018 (7) TMI 2104 - HC - Benami PropertyBenami transaction - plea of mutual family settlement and agreement to partition and divide - whether sale deed of the property was executed in the name of the husband of the plaintiff for certain internal family reasons? - HELD THAT - Plea is however premised on the husband of the plaintiff being the benami owner of the property and the father of the defendant/ counter claimant and the father-in-law of the plaintiff being the real owner of the property and/or on the defendant/ counter claimant also having a share in the property by reason of having contributed towards purchase of land underneath the same and cost of construction thereof. I have already hereinabove held that the plea of benami is barred by benami law and not required to be put to trial. Question which thus further arises is, when the plea of benami, on which the plea of mutual family settlement and agreement to partition and divide is premised, is unsustainable in law, whether there is any need to put the plea of mutual family settlement and agreement to partition and divide to trial. For a partition to take place, both the parties amongst whom oral partition is pleaded must be the owners or must have a share in the property which is claimed to have been partitioned. Title in one, who earlier did not have any share in the property, cannot for the first time be created in the guise of partition. The same is the position with respect to a family settlement. Here, the mutual family settlement and agreement to partition and divide alleged is with respect to one property only and in which, the pleas of the defendant/ counter claimant of antecedent title thereto, have been found to be barred by law. Supreme Court, recently in Theiry Santhanamal Vs. Viswanathan 2018 (1) TMI 1577 - SUPREME COURT held that partition deed can be entered into between the parties who are joint owners of the property; a father, as an absolute owner of the property, could not give away portions of the property to his sons by entering into partition deed; in case the father wanted to give the property of which he was the absolute owner, to his sons, it could be done by Will or by means of a gift deed/donation etc.; however the claim of the plaintiff in that case was not on that basis; it was not stated anywhere whether the necessary formalities, conditions or rules laid down for donation inter vivos or gift, so as to enforce a document, were complied with; in the absence of pleadings, no evidence also to that effect was produced; similarly, under a Family Settlement, pre-existing rights only can be apportioned and no new rights can be created. Once it has been found that the defendant/counter claimant here had no pre-existing right in the property, no right could be created in favour of the defendant/counter claimant under the mutual family settlement and agreement to partition and divide. Thus the Counter Claim on the said basis also is not tenable and there is no need to put the same to evidence. The Counter Claim No.69/2016 is thus rejected as barred by and untenable in law and a decree is passed in favour of the plaintiff and against the defendant, of recovery of possession of the entire portion in possession of the plaintiff of property No. C-425, Defence Colony, New Delhi. Though the plaintiff has not claimed mesne profits as aforesaid, but as observed in the order dated 28th May, 2018, the Court is required, in a suit for recovery of possession of immovable property, to order enquiry into mesne profits. In the facts, it is deemed appropriate to order that if the defendant, in compliance of the decree, vacates the property within three months of today, he will not be liable for any mesne profits. However, if the defendant, for any reason whatsoever, including of having preferred an appeal, does not comply with the decree for possession, it will be open to the plaintiff to, at that stage, seek appointment of a Commissioner for holding an enquiry into mesne profits. The counsel for the plaintiff having not raised the aforesaid plea, no costs. Decree sheet be prepared.
Issues involved:
1. Ownership of the suit property. 2. Entitlement to possession of the suit property. 3. Rejection of the suit under Order VII Rule 11(a) CPC. 4. Alleged partition by mutual family settlement. 5. Ownership claims of the defendant. 6. Joint ownership of the suit property. 7. Validity of the Gift Deed. 8. Validity of the Conveyance Deed. 9. Validity of the mutation in favor of the plaintiff. 10. Relief. Detailed Analysis: 1. Ownership of the Suit Property: The plaintiff claimed ownership of the property at C-425, Defence Colony, New Delhi, based on a registered Gift Deed dated 17th November 2009, executed by her husband. The defendant, the brother of the plaintiff’s husband, contested this claim, asserting that the property was purchased using funds largely contributed by their father and that the sale deed was executed in the name of the plaintiff’s husband for internal family reasons. The court held that the plaintiff is the sole owner of the suit property, as the defendant’s claims were barred by the Prohibition of Benami Property Transactions Act, 1988. 2. Entitlement to Possession of the Suit Property: The plaintiff sought recovery of possession of the basement and ground floor of the property, which the defendant occupied. The court found in favor of the plaintiff, granting a decree for recovery of possession, as the defendant’s counter-claims were barred by the Benami law and lacked legal standing. 3. Rejection of the Suit under Order VII Rule 11(a) CPC: The defendant argued that the suit should be rejected under Order VII Rule 11(a) CPC. The court did not find merit in this argument and proceeded with the case, ultimately ruling in favor of the plaintiff. 4. Alleged Partition by Mutual Family Settlement: The defendant claimed an oral family settlement in 1996, partitioning the property between him and the plaintiff’s husband. The court held that the plea of mutual family settlement was premised on the benami nature of the property, which was unsustainable in law. Therefore, the alleged partition was not recognized. 5. Ownership Claims of the Defendant: The defendant claimed ownership of the ground floor, basement, garage, and other areas of the property based on contributions to the purchase and construction costs. The court rejected these claims, citing the Benami Transactions (Prohibition) Act, 1988, which bars such claims unless the entire consideration was paid by the claimant, which was not the case here. 6. Joint Ownership of the Suit Property: The defendant argued that he and the plaintiff were joint owners of the property. The court found no legal basis for this claim, as the property was legally transferred to the plaintiff through a registered Gift Deed, and the defendant’s contributions did not establish joint ownership. 7. Validity of the Gift Deed: The defendant challenged the validity of the Gift Deed executed by the plaintiff’s husband. The court upheld the Gift Deed, noting that the defendant’s counter-claim for declaration of the Gift Deed as null and void was barred by the limitation period and lacked merit. 8. Validity of the Conveyance Deed: The defendant also challenged the Conveyance Deed executed in favor of the plaintiff. The court found no grounds to invalidate the Conveyance Deed, as the defendant’s claims were barred by the Benami law. 9. Validity of the Mutation in Favor of the Plaintiff: The defendant contested the mutation of the property in the plaintiff’s name. The court upheld the mutation, as the defendant’s arguments were based on the rejected claims of benami ownership and oral family settlement. 10. Relief: The court decreed in favor of the plaintiff, granting recovery of possession of the property. The court also addressed the issue of mesne profits, stating that if the defendant vacates the property within three months, he will not be liable for mesne profits. If the defendant fails to vacate, the plaintiff may seek an enquiry into mesne profits at that stage. Conclusion: The court ruled comprehensively in favor of the plaintiff, rejecting the defendant’s counter-claims based on the Benami Transactions (Prohibition) Act, 1988, and the lack of legal standing for the alleged oral family settlement. The plaintiff was granted possession of the property, and provisions for mesne profits were outlined.
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