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Benami Property - Case Laws
Showing 121 to 140 of 302 Records
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2020 (8) TMI 879 - RAJASTHAN HIGH COURT
Benami Transactions - Scope of 2016 amendment Benami Transactions Act, 1988 - HELD THAT:- As in M/S. GANPATI DEALCOM PVT. LTD. THROUGH MANAGING DIRECTOR [2020 (3) TMI 899 - SUPREME COURT] has passed an interim order, whereby, the operation of the impugned order insofar as it holds that 2016 amendment of the Benami Transactions Act, 1988 was prospective in nature, was stayed.
Keeping in view the above order, it is ordered that in the meantime, operation of the impugned order passed by the learned Single Judge insofar as it holds that 2016 amendment Benami Transactions Act, 1988 was prospective in nature, shall remain stayed.
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2020 (6) TMI 791 - MADRAS HIGH COURT
Benami Transaction - Real owners of property - Whether Govindasamy Naidu alone was having half share in the land covered under the sale deed dated 05.04.1911, Ex. A1 or Govindasamy Naidu and Chinnasamy Naidu are having equal right, interest and title in the half share of the property covered under Ex. A1 dated 05.04.1911? - HELD THAT:- No hesitation to hold that Chinnamma Naidu had adequately contributed for purchasing the half share in the suit property by his elder brother Govindasamy Naidu under Ex. A1 and that is the reason why Chinnama Naidu could independently execute Exs. A5, A6 and A7, registered mortgage deeds in favour of third parties, for availing a loan. It is also to be stated that even a mortgage cannot be permitted to be executed by a person who has no title to the property covered under the mortgage. This is more so that the mortgage deeds under Exs. A5, A6 and A7 were registered mortgage deeds. In the absence of title in favour of Chinnamma Naidu, the registering authorities would not have permitted execution of Exs. A5, A6 and A7 by Chinnamma Naidu, independently. Therefore, we answer point No. 1 framed in this appeal to the effect that it was established by the appellants/plaintiffs that their grandfather Chinnamma Naidu had adequately contributed for purchasing the property covered under Ex. A1, sale deed dated 05.04.1911 along with his elder brother Govindasamy Naidu.
Whether Govindasamy Naidu was holding the share of his brother Chinnamma Naidu in his fiduciary capacity? - Whether the suit transaction is hit by the provisions of Benami Transaction Act? - HELD THAT:- Having regard to the fact that Ex. A1 in this case emanated during the year 1911 and the custom, tradition and belief practiced in those days, we are of the view that Chinnamma Naidu reposed absolute faith and trust towards his elder brother Govindasamy Naidu and Govindasamy Naidu, true to such faith and confidence reposed on him, had held the suit property in a fiduciary capacity on behalf of his brother Chinnama Naidu. Such a relationship falls within the exception to Section 4 of the Prohibition of Benami Property Transaction Act, 1988 (now Section 2(9)(ii)(iv) of The Benami Transactions (Prohibition) Amendment Act, 2016.
It is evident from Section 4 of the Act that the provisions of the Act are not applicable, if a person, in whose name the property is held, is a coparcener in a Hindu undivided family and the property is held for the benefit of such coparcener in the family. As we have held in respect of point No. 1, Chinnamma Naidu has got a share in the property covered under Ex. A1 along with his elder brother Govindasamy Naidu. Therefore, Chinnama Naidu is a coparcener in respect of the suit property and therefore, the applicability of the Act is specifically excluded. The appellants/plaintiffs also raised the plea with respect to fiduciary capacity in their reply statement before the trial court and evidence was also let in to that effect. Therefore, we hold that Govindasamy Naidu was holding the suit property in a fiduciary capacity for and on behalf of his younger brother Chinnamma Naidu and consequently, the suit transaction is not hit by the provisions of Benami Transaction Act. Accordingly, we answer point Nos. 2 and 3 also in favour of the appellants/plaintiffs.
Whether the claim of the appellants for partition and separate possession is hit by the provisions of Limitation Act? - HELD THAT:- As evident from the fact that the name of the father of the plaintiffs Ramachandran is reflected in the revenue records in respect of the suit property, indicating that the plaintiffs, who are legal heirs of Ramachandran, continue to remain in possession of the suit property. Even otherwise, in a suit for partition, the possession of one of the co-parceners is for and on behalf of the other. The cause of action for filing a suit for partition is recurring one. As long as the relationship of co-ownership subsists, the right to seek partition continues. Even if one of the co-owners files a suit and subsequently abandon it for some reason, it will not be a ground for dismissal of the suit filed by another co-owner on the same cause of action. All that it implies is that the co-owner, who abandons a legal action initiated by him without continuing it any further, can be construed as the one who has chosen to continue his ownership in common without resorting to seek for division of the property and to allot him a separate share. We therefore hold that right to bring an action for partition is a continuing right, incidental to the right of joint ownership in the property in question. Such right subsists as long as the property remains undivided. Therefore, we hold that the claim of the appellants for partition and separate possession is not hit by the provisions of Limitation Act and we answer Point No. 4 also in favour of the appellants/plaintiffs.
Whether the present suit for partition is not maintainable without a prayer for declaration of title? - HELD THAT:- In view of our conclusion with respect to point No. 1 holding that Chinnamma Naidu has jointly contributed for purchase of half share of the property covered under Ex. A1 along with his elder brother Govindasamy Naidu, we have to necessarily answer this question also in favour of the plaintiffs. Even otherwise, under Ex. A10, Patta, the name of Govindasamy Naidu and Chinnamma Naidu were mentioned as joint owners of the property in question. That apart, Ex. A11, series of Kist receipt would indicate that Chinnamma Naidu has individually paid kist in respect of his share of the property covered under Ex. A1. As long as the revenue records stood mutated in the name of grandfather of the plaintiffs Chinnama Naidu and the plea of the plaintiffs that they were in joint possession of the suit property along with the descendants of Govindasamy Naidu, coupled with the admission of Ponnusamy, tenth defendant, in his written statement admitting the title of Chinnama Naidu in the suit property, we are of the view that the suit filed by the plaintiffs for partition, even without the relief of declaration of title, is maintainable. We accordingly answer Point No. 5 also in favour of the plaintiffs.
Whether the plaintiffs are ousted from the suit property as has been claimed by the defendants 10 to 13? - HELD THAT:- The plaintiffs, in their plaint, have asserted that they are jointly in possession of the suit property along with the other legal heirs viz., defendants. The revenue records also stand in the name of their father Ramachandran. In a suit property, it is always regarded that the possession of one of the co-parceners is for and on behalf of the other co-parcener as well and the plea of ouster cannot be considered in a suit for partition on par with the plea of ouster raised in a suit for declaration. We could also see from Ex. B16 filed before the trial court that Nandakumar, son of Ponnusamy (tenth defendant) has filed a separate suit before the District Munsif Court, Coimbatore against Rajagopal, Son of Annasamy, the third defendant in the suit, and three others. The said suit was filed for a bare injunction to restrain the defendants in the suit from in any manner alienating or encumbering the suit property. The plaintiff asserts a right to portion of the suit property on the basis of the settlement deed executed in his favour by his father Ponnusamy (tenth defendant in the present suit). In the plaint, the plaintiff in O.S. has categorically refers to the present suit filed by the appellants/plaintiffs and also states that they are also in joint possession of the suit property along with other legal heirs. In such circumstances, the plea of ouster cannot be countenanced. Therefore, we answer point No. 6 also in favour of the appellants/plaintiffs in this appeal.
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2020 (6) TMI 588 - JHARKHAND HIGH COURT
Benami transaction - sale deeds standing in the name of deceased - consistent case of the defendants is that Lakhiya Devi purchased the said property from her Stridhan ornaments, gifts and valuable assistance from her two sons and married daughters and also by selling vegetables in the market and the entire lands were purchased by her from her personal income - HELD THAT:- The issue akin to this Court has already been decided by the Apex Court in the case of Nand Kishore Mehra [1995 (7) TMI 64 - SUPREME COURT]. It has been held in the said case that “Sub-Section 2 of Section 3 permits a person to enter into benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibiton contained against a person in entering into a benami transaction in sub-section (1) of Section 3, does not apply to him. The question of punishing the person concerned in the transaction under sub-section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise. Otherwise the exemption granted under Section 3 (2) would become redundant”.
The suit has been rightly dismissed by both the courts below as the plaintiff has not impleaded his other sons or daughters as party in the suit, as their interest also involved in the suit as they have also inherited the property of her mother Lakhiya Devi. They have not been impleaded party by the plaintiff even after objection raised by defendants in their written statement.
Thus, both the courts below have rightly held that suit is barred under the provisions of Benami Transaction (Prohibition) Act, 1988 as well as the suit is also barred for non-joinder of necessary parties. The sale deeds standing in the name of Lakhiya Devi (deceased), wife of plaintiff are not self-acquired property of the plaintiff and the defendant no. 1 Kamla Kuer has valid right to execute power of Attorney with regard to land of her mother Lakhiya Devi to the extent of her share.
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2020 (6) TMI 461 - JHARKHAND HIGH COURT
Benami transaction - real owners of the property - unity of title and unity of possession between the parties in respect of suit land and the structures - Some of the lands were encroached by the encroachers and some of the lands have gone into the widening of road, as such, the plaintiff has prayed before the trial court to partition the property into half -half share irrespective of the sale deeds, as the property has been purchased under the provisions of Benami Transaction (Prohibition) Act, 1988 - HELD THAT:- This second appeal is admitted on the following substantial question of law:
(i) Whether the Exhibit-10 and Exhibit-A & A/1 have been rightly considered by the learned appellate court?
(ii) Whether the property is hit by the provision of Benami Transaction (Prohibitory) Act, 1988?
(iii) Whether without any material showing the jointness of the parties, the appellate court can declare that defendant nos. 2 & 3, who are sons of defendant no.1, are not the real owner of the suit land, which was transferred to them by way of registered sale deed dated 28.07.1985 (Exhibit-A).
Call for Lower Court Records.
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2020 (5) TMI 519 - GAUHATI HIGH COURT
Benami Property Transaction - petitioner Mallika Chamua in respect of 3(three) apartment properties and some other landed properties considered to be a benamidar of Dr. Durlav Chamua being the beneficial owner of the properties within the meaning of Section 2(10) and 2 (12) of the Benami Act of 1988 - petitioner Mallika Chamua and Bisakha Chamua are the daughters of Dr. Durlav Chamua while Smti. Dipika Chamua is his wife and the properties are being held by them as family members of Dr. Durlav Chamua - HELD THAT:- Section 2(9) of the Benami Act of 1988 as amended in 2016 does not include a property held by an individual in the name of spouse or in the name of any children of such individual where a consideration thereof had been paid out of the known source of income of the individual concerned. From the meaning of the expression of benami transaction under Section 2(9) of the Benami Act of 1988 also, we have noticed that there is no conclusion arrived at by Income Tax authorities in the notice dated 06.03.2020 that the properties in question were procured by Dr. Durlav Chamua were not from his known source of income.
A prima facie case has been made out against the notice dated 06.03.2020 under Section 24(1) of the Benami Act of 1988 as amended in 2016. Further considering the balance of convenience and irreparable loss that the petitioner may suffer, the notice dated 06.03.2020 under Section 24(1) of the Benami Act of 1988 in respect of the petitioner Mallika Chamua and all other related subsequent notices be stayed until further order(s). List on 19.06.2020.
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2020 (5) TMI 477 - GAUHATI HIGH COURT
Attachment of the property under the provisions of the Prohibition of Benami Property Transactions Act, 1988 - Since the amended provisions of Section 3 and the Chapter IV of said 1988 Act, including Section 24 therein are prospective in nature, i.e., w.e.f. 01.11.2016, Mr. Choudhury, learned Senior counsel, submits that the property of the petitioner, being the wife of said Durlav Chamua, transacted in the year 2011, cannot be attached by the impugned orders - HELD THAT:- Submission of Mr. Choudhury, learned Senior counsel, has force.
Mr. Sarma, learned Standing Counsel, Income Tax, also admits that the amendments of said 1988 Act, brought into force on 01.11.2016, are prospective in nature.
Issue notice, returnable by 19.06.2020.
As Mr. Sanjay Sarma, learned Standing Counsel, Income Tax and Mr. G. Pegu, learned Government Advocate, Assam, have accepted notice on behalf of the respondent Nos. 1 & 2 and 3 respectively, no formal notices need be issued to those respondents. However, the petitioner shall serve requisite extra copies of this petition including the Annexures appended thereto to Mr. Sarma and Mr. Pegu on or before 22.05.2020.
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2020 (5) TMI 277 - ATPBPTA
Benami transactions - Provisional Attachment - Whether Single Member Bench can hear the appeals filed under the said Act and pass such orders as deem fit to meet the ends of justice? - HELD THAT:- Direction in the order dated 15-5-2019 was that no further steps shall be taken on the notice issued by the I.O. Liberty was granted to the respondent to initiate the proceedings on the basis of fresh reference, if registered and they may proceed by registering the second reference in accordance with law. In the said order dated 15-5-2019, the respondent had also undertook that if necessary the respondent shall proceed with in accordance with law after serving the notice under section 24 (1) of the said Act.
The second order dated 13-8-2019, a clear order that has been passed with the direction that "no further steps shall be taken by the respondent in view of the impugned order". Here also there is a mention of/reference to impugned order. The relevant portion of the impugned order has already been clarified in the preceding para no.39.
Not in agreement with the learned counsel for the appellants that a Single Member Bench cannot clarify the orders passed by Division Bench in the given facts and circumstances of the appeals. The appellants cannot be allowed to take the advantage of an order which does not meant to be interpreted in the way now the appellants are interpreting. If the interpretation of the orders dated 15-5-2019 & 13-8-2019 are allowed to be interpreted the way the appellants are interpreting then it would amount to stall the investigations and scuttle the power given under the statue to the statutory authority under the said Act.
In view of the discussions and after perusal of the judgments cited by both the parties it is held that the Single Member Bench can clarify the orders passed by the Division Bench under the relevant provisions of the said Act discussed above in the given facts and circumstances of the case and also by following the doctrine of necessity.
It is clarified that no bar has been imposed in the orders dated 15-5-2019 & 13-8-2019 on the respondent to proceed with investigations/calling for documents from the appellants in accordance with law. It is further clarified that for the same, the respondent has to register a fresh reference as per law provided under the said Act and to follow the procedure as directed in the order dated 15-5-2019. Accordingly clarified.
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2020 (5) TMI 104 - MADHYA PRADESH HIGH COURT
Benami transaction - Whether the plaintiff is a fictitious person? - Agreement to sale on fictitious - whether plaintiff with ulterior motive described himself differently to act as a front man / name lender? - HELD THAT:- There is no document, muchless; official document on record to indicate that plaintiff Satish Kumar Khandelwal is resident of 78A Parshanand Nagar, R.T.O.Road, Indore. For the first time, opened bank account in the Bank of Rajasthan Limited on 27/03/2006 (exhibit P/30) in the name of Satish Shankarlal Khandelwal. Besides, in his affidavit dated 24/04/2007, he has used the surname Satish Sharma (Khandelwal). Non-production of PAN card, school record or marks sheet, driving licence despite notice issued under Order 12 rule 3 CPC upon the plaintiff certainly shall lead to adverse inference against him in view of section 114(g) of the Evidence Act.
The aforesaid unnatural conduct of the plaintiff points needle of suspicion towards him and his bona fides are questionable. For want of explanation of genesis of cash flow, preparation of pay orders and bank drafts from the accounts of persons / companies, i.e., Arun Dagariya, A.R. Infrastructure & Ansal Housing and Construction Ltd., with whom there was no agreement by the plaintiff to provide consideration amount.
Those persons were not examined in the Court. Such sequence of facts suggest that the plaintiff with ulterior motive described himself differently to act as a front man / name lender for the collateral purpose to benefit them.
Finding of the trial Court that only for the purpose of agreement to sell (exhibit P/9), the plaintiff used the name of Satish Kumar Khandelwal, resident of 216, Banshi Trade Centre, Indore as prior thereto the documents placed on record admitted by plaintiff himself describe him as Satish Sharma resident of 78A Parshanand Nagar, RTO Road, Indore M.P., cannot be faulted.
Whether, the agreement to sell dated 27/04/2005 is vague, uncertain and not capable of execution? - The land falling in survey no.219/2 total area 1.40 acres of land has been jointly recorded in the names of Rajendra Jain, Rachna Jain, Palak and Subham Jain (exhibit P/94). Land falling in survey Nos.221/2 & 208/12 are recorded in the name of Shantilal (exhibit P/96 & P/99). Land falling in survey no.213/1 is recorded in the name of Surendra Dilliwal and Rajendra Jain (exhibit P/98) Land falling in survey No.216/4 is recorded in the name of Surendra Dilliwal, Sudha Dilliwal, Rajendra Jain & Rachna Jain (exhibit P/101). Therefore, the same lands were in the names of the aforesaid persons. There is no evidence that at any point of time, partition has taken place for apportionment of shares of defendants No.1, 2 and their heirs and rights conferred upon the defendants No.1 and 2 to deal with the lands of joint ownership.
Finding of the trial Court cannot be faulted that the agreement was uncertain and not enforceable.
The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, the Courts direct the party in default to do the very thing which he contracted to do. Therefore, unless; the stipulations and terms of the contract are certain and parties must have been consensus ad idem, the specific performance cannot be ordered. The burden that the stipulations and terms of contract and the minds of parties ad idem is always on the plaintiff. If such burden is not discharged and the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. [Smt. Mayawanti Vs. Smt. Kaushlyadevi, [1990 (4) TMI 304 - SUPREME COURT]. This Court is of the view that the agreement to sale (exhibit P/9) is vague, uncertain and is not capable for execution under law.
Whether the agreement to sell is hit by the prohibition under section 3 of the Benami Transactions (Prohibition) Act, 1988 and, therefore, not enforceable under law? - The facts in hand as discussed unambiguously and unequivocally lead to a conclusion that the plaintiff was not a bona fide purchaser with no financial capacity whatsoever.
Plaintiff also failed to prove genuineness of the transaction for preparation of pay orders and bank drafts from the accounts of such persons with whom plaintiff had no privity in terms of the agreement for providing the consideration and unexplained cash flow. None of the persons providing consideration amount were examined in the Court. Under such circumstances, the transaction in question in the considered opinion of this Court tantamount to benami transaction prohibited within the meaning of section 2(a) of the Act, the same cannot be termed genuine transaction.
Benami transaction defined in section 2(a) of the Act shall not only include transaction in which property is transferred to one person but, also agreement to transfer the property to one person as the intendment of the legislature is to prohibit benami transaction.
Sale and agreement to sale defined under section 54 of the Transfer of Property Act being part of the Indian Contract Act, as contemplated under section 4 of the Transfer of Property Act are subject to prohibition contained thereunder.
If an agreement to sale suffers from the vice of benami transaction within the meaning of section 2(a) of the Act, the same falls in the category of contracts forbidden by law as contemplated under section 23 of the Indian Contract Act, the object whereof is unlawful. Hence, inexecutable in an action for specific performance.
Whether the plaintiff was ready and willing to perform his part of the agreement? - Plaintiff could not be said to be ready and willing to perform his part of the contract. Due to default of payment schedule as agreed to, the agreement stands rescinded on its own.
The subsequent conduct of the plaintiff is also unnatural. He sent two telegraphs for taking the remaining amount and presence of defendants No.1 and 2 on 27/03/2006 for registration of sale deed whereas neither he had purchased the stamp paper nor handed over the draft sale deed to defendants No.1 and 2.
Plaintiff found to have not made the payment of consideration as agreed to between the parties and on the contrary, has made a factual incorrect statement discussed above regarding cash payment of ₹ 35.00 lakhs before 05/11/2005. Law is well settled that the plaintiff has to plead and prove each and every condition of the agreement right from the date of the agreement upto the date of decree (See N.P.Thirugnanam Vs. Dr. R.Jagan[1995 (7) TMI 437 - SUPREME COURT]).
Whether defendants No.4 and 4 are entitled for cost? - Defendants No.4 and 5 found to have been unjustifiably dragged into the instant litigation. Therefore, they are entitled for cost of ₹ 50,000/- (Rupees fifty thousand only) payable by the plaintiff within four weeks from the date of pronouncement of this judgment.
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2020 (5) TMI 70 - DELHI HIGH COURT
Benami transaction - Prohibition of the right to recover property held benami - Holding suit premises in a fiduciary capacity - Suit for partition and permanent injunction instituted against the respondents/defendants claiming that they are collectively entitled to 1/10th undivided share in the residential premises - three appellants/plaintiffs are the successors-in-interest (widow and children) of late Shri Anil Kumar Dhir, brother of the respondents No.1 to 7 and the deceased respondents No.8 and 9 - HELD THAT:- In the present case, the stage of evidence had not even been arrived at. In fact, only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No.1 stood in a ‘fiduciary capacity’ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act.
On a bare reading of the averments made in the plaint read in conjunction with the documents placed on record, we are of the opinion that sufficient material facts have been disclosed requiring determination only after a proper trial. At the stage of deciding an application moved by the respondents under Order VII Rule 11 CPC, there was no occasion for the court to have taken pains to interpret and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents.
In the instant case where it has been asserted that the suit premises was purchased in the name of the respondent No.1, but from the exclusive contributions made by late Shri R.P. Dhir and therefore in reality, was meant for the benefit of all the family members, the real test would be the source from which the purchase money came from, the nature and status of possession of the property after its purchase, the motive if any for giving the transaction a Benami colour, the position of the parties and their inter se relationship, between the appellants/plaintiffs and the respondent No.1, the overall conduct of the parties in dealing with the suit premises after it was acquired, etc. [Refer: Jaydayal Poddar (Deceased) through LRs and Anr. vs. Mst. Bibi Hazra and Ors. [1973 (10) TMI 55 - SUPREME COURT] - It would therefore be imperative to weigh the evidence in the instant case for the court to conclusively decide as to whether the appellants/plaintiffs can succeed in their claim that the respondent No.1 is holding the suit premises in a fiduciary capacity, for the benefit of all the family members.
Present appeal succeeds. The impugned judgment is quashed and set aside. The suit is restored to its original position for being taken further from the stage at which the impugned judgment was passed.
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2020 (5) TMI 11 - TELANGANA HIGH COURT
Benami transactions - Prohibition of the right to recover property held benami - family dispute between spouses causes collateral damage on others related to them leading to even financial institutions acting arbitrarily and causes hardship to them - HELD THAT:- A very large amount of money for the purchase of the subject property was supplied by the petitioner and his wife, the close relationship between the petitioner, petitioner’s wife, her sister (the 8th respondent) and the 5th respondent whom she married, created a position of confidence and trust on the first three persons and of good faith in the 5th respondent; and the ostensible title of the 5th respondent is being held by him in a fiduciary capacity for the benefit of petitioner and his wife. Also the possession of the property is with the petitioner admittedly. Admittedly the petitioner attended the registration of the sale of the subject property as a proxy for the 5th respondent.
Therefore the instant case falls within Sec.4 (3) (b) of the Benami Transactions (Prohibitions) Act,1988 and is not hit by Sec.3 thereof.
It is settled law that Section 54 of the Transfer of Property Act does not lay down a law as to whether in all situations an apparent state of affairs as contained in a deed of sale would be treated to be the real state of affairs. It does not bar a benami transaction. There is no embargo in getting a property registered in the name of one person; although the real beneficiary thereof would be another. [see Jai Narain Parasrampuria v. Pushpa Devi Saraf - 2006 (8) TMI 527 - SUPREME COURT]
Though the regd. sale deed dt.5.3.2016 stands in the name of the 5th respondent, he has no title to it and the actual owner is the petitioner and his wife.
Petition is disposed of declaring that the 5th respondent was only the ostensible owner of the subject property and the real owner was the petitioner who financed the purchase of the subject property; and respondent nos.1 to 4 and 7 are directed to transfer the subject property to the petitioner by private treaty invoking Rule 8(5)(d) of the Security Interest Enforcement Rules, 2002 subject to the petitioner mortgaging the said property to the Bank to repay the balance payable to it and continuing to pay the installments fixed by it without fail.
Interlocutory Application Nos.2 and 3 of 2019 are dismissed, and Interlocutory Application Nos.4, 5, 6 of 2019 and 1 of 2020 are allowed. No order as to costs.
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2020 (3) TMI 1108 - MADHYA PRADESH HIGH COURT
Benami transactions - Pleadings of the respondents is that the money was provided by the father - HELD THAT:- From para 2 of the plaint, it is clear that the respondents/plaintiffs have merely mentioned that the money was provided by the father of the respondent no.1, i.e. Late Govind Singh Tomar. It is nowhere mentioned by the plaintiffs that Govind Singh Tomar had entered into an agreement to purchase the property in the name of plaintiff no.1. Under these circumstances, at the most it can be said that Late Govind Singh Tomar had provided the money to respondent no.1 for entering into an agreement to sell.
In the present case also the pleadings of the respondents is that the money was provided by the father. Thus, it is held that merely because the respondent no.1 had taken financial help from his father for making the sale consideration, it would not make the agreement to sell a Benami transaction, so as to push it into the forbidden area of the provisions envisaged under Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. Under these circumstances, this Court is of the considered opinion that the trial court did not commit any mistake by rejecting the application filed under Order VII Rule 11 CPC.
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2020 (3) TMI 1107 - MADHYA PRADESH HIGH COURT
Benami Transactions - Whether the sale consideration was paid by the respondent alone? - respondent was father-in-law of the applicant. Applicant and son of the respondent namely Neeraj Kumar were husband and wife. Due to some dispute between them, decree of divorce has been granted in favour of the applicant. Before passing of the decree of divorce a sale deed was executed in favour of the applicant and respondent by which they purchased suit property - HELD THAT:- Since issue whether the property in dispute was purchased as benami transactions and at the time of said purchase what was intention of buyers actual or name lender, can be decided only after considering merits of respective claims of parties on the basis of their evidence. Hence only on basis of Section 4 of Act, entire suit cannot be allowed to fall at preliminary stage. [See also Mridula Singh vs. Brahmdeo Pd. Singh [2005 (9) TMI 684 - PATNA HIGH COURT]
Whether the provisions of Section 4(3)(a) of the Benami Transactions (Prohibition Act), 1988 would be applicable to daughter-in-law, since she is not coparcener in Hindu undivided family? - As observed that while considering exemption under Section 4 in respect of Benami Transactions, the existence of fiduciary capacity has to be determined in circumstances of individual cases. In the aforesaid case, it has also been observed that since the daughter-in-law was not holding the property in fiduciary capacity, the prohibition enshrined under Section 4 would apply and the suit for possession at the instance of daughter-in-law would be maintainable.
In juxtaposition with the law laid down in the case of Mridula Singh (Supra), there cannot be any iota of doubt that issue regarding maintainability of the counter claim can be well adjudicated by the trial Court by framing an issue on the basis of the evidence led by the parties in respect of Benami Transactions.
Thus, this Court comes to the conclusion that there is no illegality or perversity in the impugned order warranting interference of this Court in exercise of its revisional jurisdiction.
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2020 (3) TMI 1106 - CALCUTTA HIGH COURT
Benami transaction - the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1 - As urged that the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1. - maintainability of the suit - HELD THAT:- In the instant case when the defendant abandoned the issue of maintainability of the suit on the point of inconsistent plea of title by the plaintiff and again right of tenancy over the self same property, the defendant cannot challenge the maintainability of the suit at the stage of first appeal. Mr. Saha also refers to the decision of this Court in Smt. Minati Sen @ D.P. Sen vs. Kalipada Ganguly [1997 (6) TMI 366 - CALCUTTA HIGH COURT] in the said report the respondent raised an issue that both the Courts below did not consider as to whether the defendant/appellant was guilty for damaging the suit property by addition and alteration. This Court found that the said issue was not pressed by the plaintiff/respondent in the trial court and held that when the issue was not pressed by the plaintiff/respondent in the trial court, there was no justification for the appellate court to go into this question and decide the same in favour of plaintiff/respondent. When a party has raised an issue in the trial court and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage.
Order VII Rule 7 of the Code of Civil Procedure authorizes the appellant to claim a relief in the alternative on the facts stated in the plaint and it is open to him to pray even for inconsistent relief. But it must be shown by the plaintiff that each of such pleas is maintainable.
In the instant case, as gone through the plaint time and again. In paragraph 8 of the plaint, the plaintiff/respondent stated as to how the consideration money was paid to purchase the suit property in the name of defendant No.1. In paragraph 12 of the plaint the plaintiff stated that since the suit property stood in the name of the defendant No.1 and in order to avoid future complications the defendant No.1 settled 2/3rd share of the suit property in favour of plaintiff and proforma defendant No.2 at yearly settlement of ₹ 9/- by executing a registered deed of settlement on 10th January, 1955. Thus agreement with the learned Advocate for the respondent that the respondent claimed title in respect of 1/3rd share of the suit property on the basis of the said registered deed of settlement executed by the defendant No.1.
Whether finally published Record of Rights in respect of the suit property would disentitle the plaintiff to institute a suit for declaration of title? - In Jharna Ghosal vs. Satyendra Prosad Dhar [1978 (1) TMI 178 - CALCUTTA HIGH COURT] held that Section 57B of the said Act did not either expressly or by necessary implication exclude the jurisdiction of civil courts to decide questions of title.
No substantial question of law involved in the instant appeal and this appeal is liable to be dismissed on contest, however without cost.
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2020 (3) TMI 932 - CHATTISGARH HIGH COURT
Prohibition of Benami Property Transaction - provisional attachment of the immovable property - Ld. Single judge observed that it is not a fit case to call for interference as the provisional attachment is only an arrangement to preserve the property until the authority completes the proceedings under the Act - HELD THAT:- No further proceedings have been filed from the part of the Appellant disputing the correctness or otherwise of Annexures R/4 and R/5. On going through the above documents, it is seen that the version of the Respondents that, the proceedings were pursued after getting approval in terms of sub-Section 3 of Section 24 is established by the Respondents and as such, this Court does not find any merit in the appeal. It stands dismissed.
Respondents referred to the wild allegations levelled against the authorities/department, particularly, under paragraph 9.6 of the writ petition alleging 'corruption', without producing any material to substantiate it - no materials have been produced from the part of the Appellant in support of the allegations levelled against the Respondents therein. Reckless allegations, when raised without testing the correctness, are liable to be acted upon seriously. However, because of the magnanimity expressed on the part of the learned Standing counsel, alerting the writ Petitioner/Appellant of the consequences and to be careful in future. We leave it there and no further order is being passed in this regard.
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2020 (3) TMI 931 - CALCUTTA HIGH COURT
Benami transaction - right of the plaintiff to sue - Whether a registered Kobala executed by one Kusum Kumari Gupta, original plaintiff No.3, since deceased in favour of one Maya Gupta is a Benami transaction or not? - even assuming that the said transaction was a Benami transaction, whether a suit for declaration to such effect is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 - HELD THAT:- In the instant case, it is specifically pleaded by the plaintiffs/appellants that the original defendant Smt. Maya Gupta made an application in the local Municipality in the year 1970 to mutate her name in respect of the suit property. The said application was rejected by the Municipality on 22nd January, 1970. Immediately thereafter, the plaintiffs filed the suit. Thus, the Trial Court correctly held that right of the plaintiff to sue accrued only when the defendant tried to infringe the plaintiffs’ title over the suit property on the basis of the said two deeds.
As already held that this Court cannot re-appreciate the evidence on the factual aspect of motive of the parties to execute such deeds, accumulation of consideration price and payment of the same and other relevant factors necessary to hold a transaction Benami or not. Suffice it to say that the learned Trial Judge in great detail held that though the purported deeds of sale were executed on 11th June, 1957, all along the said deeds were in custody of the vendor.
The suit property was recorded in the record of Kanchrapara Municipality in the name of the vendor. The vendor used to collect rent from the tenants. The electricity in the suit property stood in the name of the vendor. The vendor performed all acts incidental to ownership of the suit property in spite of execution of the said two deeds of sale dated 11th June, 1957. All such factual circumstances are recorded by me only to show that the learned Trial Judge had dealt with the issues of fact raised by the respondents and again such finding, the respondents have not filed any cross-objection before the learned First Appellate Court.
The plaintiffs filed the suit for declaration that the deeds of sale dated 11th June, 1957 are Benami transaction. They pleaded in the plaint that they are in possession of the suit property. The defendant No.1 Smt. Maya Gupta is in possession of one room of the suit property as a licensee. It is, of course, an executive decision of the appellants as to whether they would allow the respondents to occupy one room in the suit property as a licensee or they would recover possession of the suit property by revocation of license. Under such circumstances, the suit cannot be said to be barred under the Proviso of Section 34 of the Specific Relief Act. Moreover, no such question was raised as the substantial question of law by the respondents in the instant appeal. So this Court has no scope to decide such question in the instant appeal.
On the question of law formulated in the instant appeal, have no other alternative but to hold that the Hon’ble Supreme court in R. Rajagopal Reddy [1995 (1) TMI 67 - SUPREME COURT] held that Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is not retrospective in operation and does not apply to pending suits already filed and entertained prior to coming into force in Section 4.
Substantial question of law is necessary in favour of the appellants. Accordingly, the appeal is allowed on contest without costs.
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2020 (3) TMI 930 - DELHI HIGH COURT
Benami transaction - suit for injunction simpliciter - only argument of the counsel for the defendant No.3/counter-claimant Ravinder Khanna is that on filing of the present suit, a fresh cause of action has accrued to the defendant No.3/counter-claimant Ravinder Khanna to file the Counter-Claim and that the suit in which recording of evidence stands concluded, be called to this Court - HELD THAT:- Benami transaction' in the Act, prior to its amendment, was described as 'any transaction in which property is transferred to one person for a consideration paid or provided by any another person'.
The amended Act defines 'benami property' as meaning any property which is the subject matter of a benami transaction and describes a 'benami transaction' as meaning a transaction or an arrangement "where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.
Defendant No.3/counter-claimant Ravinder Khanna is prohibited by law from enforcing any right in respect of the subject property held benami, against defendant Nos. 1&2 in whose names the said property is held as well as against other parties who are the heirs of defendant No.1 Prem Prakash Khanna, who has since died.
As far as the plea, of the defendant Nos. 1&2 holding the property in trust or for the benefit of the defendant No.3/counter-claimant Ravinder Khanna is concerned, it has been held in that though the parent may be a trustee of a minor son but not of a major son and thus the question of the transaction being within the exception to benami does not arise. Even otherwise, no particulars of the defendant Nos. 1&2 standing in any fiduciary capacity to the defendant No.3/counter-claimant Ravinder Khanna are disclosed.
Counter-Claim, on the averments therein, does not disclose any cause of action or entitlement of the defendant No.3/counter-claimant Ravinder Khanna to obtain a declaration of being the real and/or benami owner of the property for partition of which the suit is filed.
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2020 (3) TMI 899 - SUPREME COURT
Benami Transaction - acquired property - as alleged that the said property was benami under Section 2(8) of the said Act of 1988, as amended - alleged violation of Section 2(9)(D) thereof - alleged that the consideration for this transaction was provided by “non-traceable fictitious/shell entities having no real business”, rendering the transaction benami - HELD THAT:- Mr. Ankit Anandraj Shah, learned counsel accepts notice on behalf of respondent.
In the meantime, the operation of the impugned order insofar as it holds that 2016 amendment of the Benami Transactions Act, 1988 was prospective in nature, shall remain stayed.
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2020 (3) TMI 589 - RAJASTHAN HIGH COURT
Benami transactions - application was filed for summoning of the documents before leading rebuttal evidence - application filed by the petitioner under Order XVI Rule 6 CPC read with Section 151 CPC for summoning documents/record from the Deputy Commissioner, Income Tax Department - HELD THAT:- The conclusion of the trial court pertaining to the irrelevance of the documents is apparently against the record inasmuch as, as already noticed, the plaint is inter alia based on the allegation pertaining to transaction being Benami and irrespective of the fact as to whether the same would have any implication ultimately qua the relief claimed in the suit, the petitioner essentially is entitled to lead evidence qua the said fact and once the documents sought to be summoned pertain to the said aspect, the rejection by indicating the same as irrelevant cannot be sustained.
The other finding based on the provisions of Section 4 of the Act, 1988 also has no substance in view of the fact that the provision restricts the right of those seeking enforcement or defend an action based on same being Benami, however, the third parties are not prevented from alleging and/or proving the said aspect and, therefore, the rejection on this count also cannot be sustained.
Various submissions made by learned counsel for the respondent pertaining to delay in the suit, the fact that the plaintiff is not entitled to lead rebuttal evidence and that provisions of Order VII Rule 14 and Order XI CPC were not followed, apparently have no substance inasmuch as once the court has permitted leading of rebuttal evidence, the defendant cannot preempt the fact as to what evidence can be or would be led by the plaintiff.
The provisions of Order VII Rule 14 and Order XI CPC also have no application inasmuch as neither the documents are available with the plaintiff nor the same are claimed to be available with the defendants and, therefore, the fact that no application under the provisions of Order VII Rule 14 and Order XI CPC was filed, would have no implication whatsoever.
So far as the observations made by the trial court, though the same has not been made basis for rejection of the application, that the particulars of the documents have not been indicated, suffice it to observe that once the requisition as prayed by the petitioner is issued, the department has to respond on the said aspect and same also in view of submission that record is maintained property wise, cannot be preempted at this stage.
In view of the above discussion, the writ petition is allowed.
The order dated 3/2/2020 passed by the trial court is quashed and set aside. The application filed by the petitioner under Order XVI Rule 6 CPC is allowed. The trial court is directed to summon the documents/record as prayed by the petitioner in its application under Order XVI Rule 6 CPC from the office of Deputy Commissioner, Income Tax Department, Jaipur.
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2020 (3) TMI 588 - CHATTISGARH HIGH COURT
Benami Property Transactions - Prohibition of the right to recover property held benami - trial Court while rejecting the alleged application filed under Order 7 Rule 11 of CPC has held that the suit as framed is not barred by the provision prescribed under Section 4 of the Act, 1988 - Whether the property in question has been purchased by the Plaintiff from her Stridhan, i.e., known source of income, or not ? - HELD THAT:- What has been observed by the trial Court by rejecting the application filed under Order 7 Rule 11 of CPC that the suit property appears to have been purchased by the Plaintiff for the benefit of the family members, and therefore, the suit as framed is not barred by virtue of Section 4 of the Act, 1988. The trial Court has, thus, virtually given his finding that the alleged transaction does not come within the purview of benami transaction. It, however, appears that such an observation has been made without considering the fact as to whether it was purchased by the Plaintiff from her known source of income, i.e., Stridhan in order to arrive at such a conclusion. It is, therefore, rather premature to hold that the suit is not barred by the provision prescribed under Section 4 of the Act, 1988.
Question whether a particular sale is a benami or not is largely one of fact and that cannot be decided in absence of evidence and in order to get the exclusive ownership, the Plaintiff has to establish the said fact by way of cogent and reliable evidence that it was acquired from her Stridhan and the alleged transaction does not fall within the ambit of benami transaction defined under Section 2(9) of the Act, 1988 and only after its establishment, it could be held that the suit is not barred under Section 4 (1) of the Act, 1988. However, without considering all these facts, the trial Court in a cursory manner has opined that the suit is not barred by the said provision. The finding of the trial Court, therefore, in so far as the suit cannot be held to be hit or barred by Section 4 of the Act, 1988 in such a pre-matured stage, is liable to be and is hereby set aside.
From perusal of the aforesaid provision, it is clear that the Court is vested with the discretion under this Order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck, i.e., after written statement is filed and this is the principle which has been laid down by the Supreme Court in the matter of Kuldeep Singh Pathania vs. Bikram Singh Jaryal [2017 (1) TMI 1708 - SUPREME COURT] whereby while dealing with the aforesaid provision - Revision petition is disposed of with the aforesaid observations
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2020 (2) TMI 1172 - DELHI HIGH COURT
Benami transaction - petition sued for partition of immoveable properties and dissolution of partnership firms in terms of the Agreement/Family Settlement dated 11th March, 2014 between the plaintiffs and the defendants - HELD THAT:- Plaintiffs are required to take a categorical stand, whether are bound by the partition affected vide the Agreement/Family Settlement dated 11th March, 2014 or are proceeding on the premise that there has been no partition and if are proceeding on the latter premise, to satisfy that they have a share in accordance with law in the properties, title to which is held by others and/or right in the partnership firms, notwithstanding being not a partner thereof.
The law recognises jointness only in the event of existence of a coparcenary and no coparcenary is pleaded. In relation to partnership also, the law distinguishes between partnership firm under the Partnership Act, 1932 and a Joint Hindu Family Business Firm to which the Partnership Act is not applicable.
Though the Benami Law also admits of exceptions but no case of the title holders or the partners being trustees or having held property for the benefit of others, has been pleaded.
The counsel for the plaintiffs seeks time to consider. - Matter adjourned.
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