2020 (2) TMI 543 - HC - Benami Property

Benami property - relief sought by the applicant under Order XII Rule 6 of the CPC - application filed by Smt.Indu Kamboj defendant no.9 for a direction upon the plaintiff to delete certain properties from the schedule of properties in this partition suit - applicant s contention is that the property is her self-acquired property and is not susceptible to partition at the instance of the plaintiff - whether character of the properties in question as self-acquired properties of the applicant? - HELD THAT - Plaintiff joined the business, commenced by his father in the year 1975, in which the defendant nos. 1 and 2 and late Sh.Narender Kumar Kamboj also participated. The expansion of the business resulted in the acquisition of various properties. According to the plaintiff, the brothers did not maintain separate accounts and the properties were purchased by their father in the names of his aforesaid sons. Properties were purchased in the names of one or the other member of the family, for the benefit of the entire family. Although Mr. Srivastava is right in saying that the plea with regard to the fiduciary capacity in paragraph 27 of the plaint is in respect of the brothers of the plaintiff, paragraph 40 of the plaint clearly indicates that the properties were purchased inter alia in the name of the applicant, who is the wife of defendant no.1. The averment in paragraph 38 of the plaint that the parties are holding the properties in trust of each other, is also relevant in this regard. Whether the applicant is entitled to the relief claimed in terms of Order XII Rule 6 of the CPC must be decided on a meaningful and holistic reading of the pleadings, or other documents in which the plaintiff is alleged to have admitted the applicant s defence. To entitle a party to a decree in terms of Order XII Rule 6 of the CPC, the admission must be categorical, unconditional and unequivocal. Pleading in respect of a joint Hindu family, where property is held as a trustee for all family members, could not be decided at the stage of an application for rejection of plaint and ought to be taken to trial. The relief of declaration sought in prayers A and B are questions that would in any effect fall for consideration while adjudicating the question of partition. It therefore cannot be held that, on the admitted facts, the plaintiff s claims are barred by virtue of Article 58 to the Schedule of the Limitation Act, 1963. Limitation being a mixed question of law and fact, the point is therefore reserved for final adjudication in the suit. Conclusion - We do not consider this to be an appropriate case for grant of the discretionary relief sought by the applicant under Order XII Rule 6 of the CPC. The application is therefore dismissed. However, it is made clear that the observations contained in this order are not intended to prejudice the case of the parties at the final adjudication of the suit.

Issues Involved:
1. Whether certain properties should be deleted from the schedule of properties in a partition suit.
2. Whether the properties in question are self-acquired properties of the applicant.
3. Applicability of the Benami Transactions (Prohibition) Act, 1988.
4. Whether the suit is barred by limitation.

Issue-wise Detailed Analysis:

1. Deletion of Properties from the Schedule:
The application was filed by the defendant no.9, seeking a direction to delete certain properties from the schedule of properties in the partition suit, claiming them as her self-acquired properties. The plaintiff contends that these properties were purchased using joint family funds.

2. Self-Acquired Properties:
The applicant argued that the properties in question are her self-acquired properties and not subject to partition. She cited documents admitted by the plaintiff to support her claim. However, the plaintiff argued that these properties were purchased from joint family funds and held in trust for the family. The court noted that the pleadings indicate that the properties were purchased in the names of family members for the benefit of the entire family, thus making them joint family properties.

3. Applicability of the Benami Transactions (Prohibition) Act, 1988:
The applicant argued that the plaintiff's claim is untenable under Section 4 of the Benami Act, which prohibits benami transactions. The plaintiff countered that the properties were held in a fiduciary capacity for the benefit of the family, falling under the exception in Section 2(9) of the Benami Act. The court found that the plaintiff's pleadings regarding the fiduciary capacity and joint family nature of the properties were sufficient to take the matter to trial.

4. Limitation:
The applicant argued that the suit is barred by limitation under Article 58 of the Limitation Act, 1963, as the properties were purchased long before the suit was filed. The plaintiff argued that the limitation period starts from the date of discovery of exclusion from the joint family property, making the suit timely under Article 110 of the Limitation Act, which provides a 12-year period. The court held that the issue of limitation is a mixed question of law and fact, which should be decided at trial.

Conclusion:
The court dismissed the application, stating that the case involves complex issues that require a full trial. The court emphasized that the pleadings indicate the properties were purchased for the benefit of the entire family and held in a fiduciary capacity. The court also noted that the issue of limitation requires a detailed examination of facts and cannot be decided at this stage. The observations made in the order are not intended to prejudice the final adjudication of the suit.

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