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TMI Blog2015 (9) TMI 1606X X X X Extracts X X X X X X X X Extracts X X X X ..... re held in one name, the benefits or income from those assets were shared in a 23 of 27 manner inconsistent with a sole or personal holding. Sabita repeatedly refers to intentions , understandings , practices and more. Of this, there is no evidence whatever. All that I have is a surmise piled on conjecture wrapped up in speculation. - the first preliminary issue must be answered in the affirmative - The suit is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988. Time limitation - Held that: - It is a mixed question of fact and law. No facts are proved as required by Section 9A of the CPC - In any case, what appears to be material is that if according to the Plaintiff in 2005-2006 there was an agreement or understanding by which certain properties were transferred to Sandeep Raheja, and if this was in derogation of the 1995-1996 Family Arrangement, then that must surely be a starting point of limitation of this suit - it is not possible to hold in favour of the Plaintiff in the absence of necessary evidence. A mere pleading is insufficient - Without evidence, a segregation of these claims is impossible. The second issue is also answered in the affirmative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, it is a choice saddled with consequences. 3. The dispute pertains to certain assets and properties said to be held in the family of the late Gopal Raheja. During his lifetime, Gopal Raheja amassed a considerable fortune with his many enterprises in the hospitality, shopping, construction and real estate sectors. He died on 18th March 2014 following a protracted illness. His wife, Sheila, died some years earlier. Disputes began in his lifetime, in 2012. These were between him and his son, the 1st Defendant ("Sandeep"). His daughter Sonali Arora (the 5th Defendant; "Sonali") supported him. So did Sabita, his other daughter, though after a fashion; for, as the following discussion shows, her narrative is something of a departure from her father's. Gopal Raheja filed Suit No. 2363 of 2012. A few months after he died, Sabita filed this suit for partition. Sonali filed Chamber Summons No. 708 of 2014 in Gopal Raheja's suit asking to be transposed as the Plaintiff. I allowed that Chamber Summons on 30th April 2015. Sonali then filed an administration action, Suit No. 103 of 2015. Preliminary issues under Section 9A of the CPC are pending determination in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow to sue for partition. No question of limitation arises, she insists; and, since there is this element of co-ownership (the equivalent of being tenants in common), the implied unity of possession itself means that every person in that group held any particular asset or property in trust and in a fiduciary capacity for the others. Thus, in view of the provisions of Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 ("the Benami Act"), a claim of this nature is not prohibited. That is the frame of the suit; and that is the basis of prayer (A), for a declaration of an equal and undivided share in all the properties and assets, and prayer (B), for a partition of these, in the suit. 6. The factual background is this. Gopal Raheja, his parents and other family members were amongst those who migrated to India at the time of Partition in 1947. In 1956, having obtained a B.E. in civil engineering, Gopal Raheja joined his father and two uncles in the family real estate business. In time, so did his younger brothers Chandru and Suresh. Their father, Lachmandas, separated from his brothers in 1966, and continued in business with his sons, the youngest one joining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and since then has an equal and undivided share, right, title and interest in the properties, assets and businesses of the Gopal Raheja Group and its management and control. This is the basis of the claim for partition. 9. Ms. Iyer also claims that the working of the Gopal Raheja Group after the 1995-1996 Family Arrangement demonstrates inter alia that all holdings were in fact maintained in trust for the Group as a whole. I must note that there is even at this stage the unexplained contradiction to which I earlier referred: the 1995-1996 agreement includes Durga, Sandeep's wife. Yet for reasons that are not at all apparent, Sabita's claim wholly excludes Durga and is on the basis that Gopal, Sandeep, Sonali and Sabita each had and today have equal an one-fourth undivided share, right, title and interest in all properties and assets. On Gopal Raheja's demise, in terms of his Will, his share is to come, Sabita says, to her and Sonali. Ms. Iyer also attempts to show that even if any assets or holdings remained in a particular individual's name this was "for business expediency and convenience and did not in any manner affect the status of the undivided Gopal Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that there was an understanding at that time, i.e., in 2004, that the community of interest and title in the entirety of the holdings and assets was ever intended to continue. 11. The disputes, till then evidently suppurating, burst open in September 2011. Gopal Raheja was then about 78 years old. Sabita says that Sandeep for the first time did not cooperate in arriving at a family arrangement. She pegs this date at 1st September 2011. She claims that this was because Sandeep disapproved of Gopal Raheja's long-standing relations with another lady. There follow allegations of deceit, cheating and defrauding, and then finally Sabita says that Sandeep took disadvantage of his fiduciary position and claimed inter alia that there was a family arrangement much earlier in time, in 1992. He claims this for the first time, she says, in his letter dated 28th January 2012 to Gopal Raheja. There are allegations about the events of that month, but it is Sabita's case that after September 2011 and January 2012, Sandeep and Durga virtually usurped the properties, assets and businesses of the Gopal Raheja Group as also its management and control, inter alia on the basis of the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Then Sabita says this in paragraph 6.B.1.(ix) of her written submissions, referencing paragraph 108 of the Plaint: (ix) there was only one pro-tem change of ostensible and/or nominee holders of shares in the year 2005-06 as an interim measure to assuage the fears, insecurities and apprehensions of Defendant No. 1 (as per the directions of late Gopal L. Raheja) and on the reiteration of the common understanding inter se the Gopal Raheja Group that the final division and distribution of the properties, assets and businesses of the Gopal Raheja Group will be effected between the family members at the appropriate time and without in any manner affecting the share, right, title and interest of any member as crystallized and reiterated in terms of the 1995-96 Family Arrangement writings. 15. This is clearly a matter of evidence in every single aspect. Whether the change was pro tem or not, whether the holdings were ostensible, whether the holders were nominees, whether this was for the alleged purpose of assuaging Sandeep's 'fears, insecurities and apprehensions' (and even that he did indeed have any such 'fears, insecurities and apprehensions'), that there were d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclude affirmatively that the first preliminary issue must be answered in the negative. In other words, I am invited to return a finding of fact based only on allegations, sans evidence, sans proof. I must necessarily conclude that there was in fact such a trust of the kind of which Sabita speaks. Consequently, I must find as a matter of law following this finding of fact that the provisions of the Benami Act do not apply. 19. As to limitation, that is always at the very least a mixed question of law and fact. Sabita says time runs from January 2012 or 24th March 2014 or December 2011 and her suit is within time. She does not care to explain why it should not run from the 2004 or the 2005-2006 'common understanding' of which her own Plaint "throughout" and "repeatedly" speaks. 20. This is not the first time Sabita was asked if she wished to lead evidence. I sought this from her twice before, on 8th December 19 of 27 2014 and 9th April 2015. Her response, declining to lead evidence, is noted in the orders of those days. 21. Ms. Iyer attempts a submission that Sabita's evidence is unnecessary as there are important admissions allegedly made by Sand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. To the contrary: Binapani Paul was a case that was fully tried and decreed by the trial court. Finally, as regards limitation, Hari Shankar Singhania v Gaur Hari Singhania & Ors., AIR 2006 SC 2488 (1) a case on which Ms. Iyer places considerable reliance, itself says that the starting point of limitation is a question of fact. The finding as to the distribution and the onset of disputes was assessed in Singhania as a matter of commonly accepted fact. I do not believe that the generally stated principle in that case can be applied willy-nilly to every single case of a family dispute. Indeed, it seems to me to be entirely wrongly applied here. The dispute is not about the 1995-1996 Family Arrangement. Even according to Sabita, that is only the genesis of the 'common' holding, trusteeship and beneficial interest. That was an arrangement between the Chandru Raheja and Gopal Raheja families and it is not being tested in this case at all. What is in dispute in this case is something entirely different, i.e., the disputes internal to the Gopal Raheja family. Here, Sabita's case seems to be that there was a common understanding of 2004 or 2005-2006, something that is not ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court, where there was an actual admission of the property being held in trust, albeit without the necessary formality of a regular deed of settlement of an express trust. It might also arise where the law imports a fiduciary relation. Not every holding in a family is fiduciary, and not every nominee is proprio vigore a fiduciary. It is certainly not insignificant that Sabita's claim extends to equity holdings in companies. At a minimum, if these holdings were 'impressed with trust', they required a statutory declaration under Section 187C of the Companies Act, 1956 or Section 89 of the Companies Act, 2013. The 2013 Act came into force before the present suit was filed. Section 89(8) makes it clear that absent the necessary declaration, no right in relation to that shareholding is enforceable. This would have been entered on the companies' registers of members. There is no such case even made out. 24. Sabita had the opportunity to establish this fiduciary relationship, even outside the exclusions of the Benami Act, and relying on the second part of Section 4(3)(b), i.e., "other fiduciary capacity". She might have shown, say, that while assets were held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L Raheja Family Arrangement is at odds with Sabita's claim in this suit. Both cannot co-exist. The essence of the G.L. Raheja Family Arrangement of 2012 is that Gopal Raheja was the beneficial owner of all the assets and properties; and that it was he who effected a distribution in 2012. Sabita's case today is that Gopal Raheja only ever had 25% ownership; and she does not explain how she could have ever supported Gopal Raheja's case at any time. She took something akin to the present stand only in her written statement to Gopal Raheja's suit. The two stands are not just inconsistent; they are mutually destructive. 28. As regards the second issue of limitation, this can be dealt with shortly. It is a mixed question of fact and law. No facts are proved as required by Section 9A of the CPC. Ms. Iyer says that the suit is within time since it was not till 30th April 2013 that Sandeep denied Sabita her rights. Even taking the date of 28th January 2012, which is when Sandeep first claimed the 1992 oral agreement in his letter to Gopal Raheja, the present suit would nonetheless be in time. It is filed well within three years of either of these two dates. This argument u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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