9911796707
TMI Blog2017 (10) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that appellant/plaintiff pleaded that the suit property was no doubt purchased by the sale deed dated 7.12.1959 in the name of defendant nos. 1 to 3 in the suit, but actually this property was owned by the father Sh. Waryam Singh because funds for the purchase of this property were given by the father Sh. Waryam Singh. It was also pleaded that the defendant nos. 1 to 3 were minors at the time when the sale deed dated 7.12.1959 was executed in their favour and that they had no source of finance for purchase of the suit property. Defendant nos. 1 to 3 filed a written statement and pleaded that they were the exclusive owners of the suit property and the father was not the owner of the suit property. It was pleaded by defendant nos. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty of late Mr. Waryam Singh? OPP 3. Whether the claim of the plaintiff is barred under the provisions of Bemani Transaction (Prohibition) Act, 1988? OPD 4. Whether the plaintiff is entitled to partition, if so, what are the shares of parties? OPP 5. Relief." 5. Trial court has held that the suit is clearly barred by the Benami Act because as per the provisions of Sections 3 and 4 of the Benami Act once the property by means of a title document is in the name of a particular person, then that particular person (defendant nos. 1 to 3 in this case) has to be taken as an owner of the property although funds/consideration for the purchase of the property came from the third person (father Sh. Waryam Singh in this case) and who claims right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. The only other way in which an HUF can be created is that after 1956 the property of a person is thrown in common hotchpotch. 7. A reading of the plaint shows that there is no cause of action pleaded of the suit property being inherited prior to passing of the Hindu Succession Act, 1956 or that the suit property was thrown into a common hotchpotch on a particular date, month and year. Also, in any case even assuming a plea was there of an existence of HUF, there is no evidence whatsoever led by the appellant/plaintiff that there existed an HUF and how that HUF came into existence and how that HUF's existence with its properties was then found recorded in various records in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant/plaintiff has again argued that since the defendant nos. 1 to 3, even assuming that they were major, were hardly of 18-20 years and consequently they would have no source of income to purchase the suit property in terms of the sale deed dated 7.12.1959 and that the sale deed shows that consideration of the property was paid by Sh. Waryam Singh and therefore the suit property is to be held as not owned by defendant nos. 1 to 3 but by Sh. Waryam Singh and consequently appellant/plaintiff as a daughter of Sh. Waryam Singh gets the share in the suit property as Sh. Waryam Singh died intestate. (ii) I cannot agree with the argument urged on behalf of the appellant/plaintiff, inasmuch as, even if father has paid the moneys for purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly held that the order dated 2.5.1997 passed in suit no. 2526/1989 by a learned single Judge of this court cannot amount to an admission by the defendant nos. 1 to 3 of the present suit that the suit property was a family property and it had to be divided among all the family members. Trial court also rightly notes that the learned Single Judge who passed the procedural day"s order in the suit on 2.5.1997 specifically recorded that a proper application was to be filed and that in fact when the order dated 2.5.1997 was passed only one brother namely Sh. Kushal Pal Singh was represented and other two bothers being the defendant nos. 2 and 3 in the present suit were not present when the order was passed on 2.5.1997. For the sake of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt number of his mother. Let a communication be issued to the Manager of the above said bank for locating the account number of defendant No. 1, Smt. Vidya Wati, widow of Shri Waryam Singh. List the matter on 29th May, 1997, in Chamber at 4:00 P.M., on which date some official of the State Bank of Patiala, Safdarjung Enclave, New Delhi branch will be present in Court. A copy of this Order be given DASTI to learned counsel for the plaintiff so that the Plaintiff could get in touch with the Manager of the above said Bank." 12. Learned counsel for the appellant/plaintiff also sought to argue that in the earlier suit there are admissions of the brothers in their written statement that the suit property is owned by the family, however, on goi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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