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TMI Blog2018 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... fits and injunction in respect of the property bearing No.C-216, Sarvodaya Cooperative Housing Society, Sarvodaya Enclave, New Delhi admeasuring 498 Sq. Yards (hereinafter, 'suit property'). The daughter in law of the Plaintiff Smt. Shakuntala Devi was Late Smt. Sudha Dayal, wife of Shri Vinod K. Dayal. Smt. Shakuntala Devi was married to Shri Maheshwar Dayal. They had three children i.e. Shri Vinay Dayal, Smt. Veena Aggarwal and Shri Vinod Dayal. 4. During the pendency of the suit, Smt. Shakuntala Devi has passed away and her second son and sole daughter are impleaded as her legal heirs and hence are the Plaintiffs in the present suit. 5. The case pleaded by Smt. Shakuntala Devi is that the suit property was allotted to one Shri Balbir Singh Goel, brother of Smt. Sudha Dayal. She wanted to purchase the property for herself and for the benefit of her family members. On the suggestion of Shri Balbir Singh Goel, she decided to purchase the suit property from him. Since, as per the norms of the Sarvodaya Cooperative Housing Society, the transfer of a property was only permitted amongst blood relations, it is her case that a decision was taken to purchase the plot from Shri Balbir Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aya Cooperative Housing Society, Sarvodaya Enclave, New Delhi measuring 498 sq.yards. b. Pass a decree of possession in favour of the plaintiffand against the defendants in respect of the first floor of the suit property as shown in red color in the site plan. c. Pass a decree at the rate of Rs. 50,000/- p.m. from1st May 2014 towards the use and occupation charges of the first floor of the suit property till its handing over the possession of the suit property . d. Pass a decree of permanent injunction in favour ofthe plaintiff and against the defendants thereby restraining them to sell, transfer or create third party interest in respect of the suit property." 7. The suit was initially filed in this Court and then transferred to the District Court. An amendment was then sought to increase the valuation of the suit. Same was allowed vide order dated 22nd September, 2016. I.A. 10611/2014 was filed seeking interim injunction. 8. The Defendants filed an application being I.A. 20927/2014 under Order VII Rule 11 CPC, seeking rejection of the Plaint. The broad grounds taken are- i) That the suit property was transferred by Smt. Sudha Dayal's brother in her favour out of the natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution was possible, this suit has been filed. The Plaintiff has moved an application under Order XII Rule 6 CPC in the present suit seeking a decree on admission. The ground pleaded in the application under Order XII Rule 6 CPC is that the conduct of the Defendants shows that they admit the ownership of the Plaintiff. Further, in the written statement, the Defendant admits that the property was purchased in the name of Smt. Sudha Dayal. Since most of the facts are admitted and the only question is about interpretation of the Benami Transaction Act, the Plaintiff submits that the issues do not require any formal evidence or trial. In the said application, I.A. No.6501/2017, the following prayer is made. "(a) Pass a Decree of Possession in respect of the Ground Floor of the property bearing no. C-216, Sarvodaya Cooperative Housing Society, Sarvodaya Enclave, New Delhi under the provisions of Order 12 Rule 6 CPC; Or in the alternative, treat the issue no. 4 framed vide order dated 14.10.2015 as a Preliminary Issue under Order 14 rule 2 of the Code of Civil Procedure 1905 and decide the same ; and" 11. Issue no.4 framed in the suit on 14th October, 2015, reads as under: "4. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reliefs prayed in the 3 suits are concerned, submissions have been made by counsels finally on the said issue. 17. Issue no.4 framed in the suit No. 2441/2014 is, thus, treated as a preliminary issue. The pleadings in all the applications have been completed. The decision in the application under Order VII Rule 11 CPC would be the first step in leading to a conclusion. In the said suit, Smt. Shakuntla Dayal had been permitted to file the evidence by way of affidavit and was also partly cross-examined. Unfortunately, before her cross-examination could be completed, she had passed away at the ripe age of 95 years. However, the documents that Smt. Shakuntala Devi submitted with her affidavit in evidence can still be considered, inasmuch as, the same are in original and they establish a large number of facts. 18. A brief perusal of the facts narrated above reveals that the only issue in all three suits is the question as to whether Smt. Sudha Dayal was holding the property in trust for or on behalf of her mother in law Smt. Shakuntla Devi and whether she was a person standing in the fiduciary capacity. Smt. Shakuntla Devi and Smt. Sudha Dayal are no more. So, the actual trustee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. In this background, the fundamental question that arises is as to whether the property was actually purchased by Smt. Shakuntala Devi in the name of her daughter in law Smt. Sudha Dayal. Smt. Shakuntala Devi has placed on record a large number of original documents, in support of the plea that the property was actually purchased by her. The documents, which are placed on record by Smt Shakuntala Devi in CS(OS) 2441/2014, are described hereinafter: * Ex. D1W1/1 - Savings Bank pass book, Bank of India Ltd; * Ex. D1W1/2 - Gift deed in favour of Smt. Shakuntala Devi from her mother Smt. Tara Devi for silver ingot; * Ex. D1W1/3 - Certificate issued by Smt. Tara Devi certifying that she had gifted another silver ingot and certain shares to her daughter, Smt. Shakuntala Devi; * Ex. D1W1/4 - Cheque Book Foil for the period from January, 1980 to December, 1984 of account no.6648 with Bank of India; * Ex. D1W1/5 - Cheque Book Foil for the period from December, 1980 to March, 1986 of account no.6648 with Bank of India; * Ex. D1W1/6 - Cheque Book Foil for the period from December, 1969 to November, 1972 of account no.6648 with Bank of India; * Ex. D1W1/7 - Pay-in slips for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary (Lease Admin.), DDA dated 2nd January, 1973; * Ex.D1W1/27 - Letter dated 2nd January, 1973 from Shri Balbir Singh Goel to DDA requesting transfer of plot in favour of his sister; * Ex.D1W1/28 - Letter dated 15th February, 1980 written by Shri Maheshwar Dayal and Smt. Sudha Dayal to MCD; * Ex.D1W1/29 - Letter dated 5th April, 1976 written by Shri Maheshwar Dayal and Smt. Sudha Dayal to MCD; * Ex.D1W1/30 - Cheque Book Foil for the period from December, 1988 to April, 1991 of account no.535 with UCO Bank; * Ex.D1W1/31 - Cheque Book Foil for the period from November, 1991 to December, 1992 of account no.535 with UCO Bank; * Ex.D1W1/32 - undated letter written by Smt. Sudha Dayal to MCD authorising Shri Maheshwar Dayal to deal with all matters relating to the suit property; * Ex.D1W1/33 - Income tax return of Smt. Shakuntala Devi for the financial year ending on 31st March, 1983; * Ex.D1W1/34 - Certificate dated 21st August, 1975 issued by Shri Bishambar Nath Ram Swarup, Proprietor, to the income tax authorities for the Assessment Year 1972-73; * Ex.D1W1/35 & Ex.D1W1/36 - Rent receipts issued by the society in the name of both Smt. Sudha Dayal and Shri Maheshwar Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Devi has also placed on record, all the chequebooks of the joint bank account including her statement of accounts, which shows that she has been claiming income from property and reflecting the suit property in her balance sheets - (Ex.D1W1/33 & Ex.D1W1/34). The various cheque books of 1980s show that payments being made for hardware, steel, electricity, construction. Even the counterfoils of the pay-in-slips for the relevant period have been placed on record. However, the most clinching evidence Ex.D1W1/38 is the letter dated 30th June, 1976 written by Smt. Sudha Dayal to the following effect: "Dated 30.6.76. 1876, Haveli Jugal Kishore, Chandni Chowk, Delhi-110006 THE ADDITIONAL SECRETARY, Land Sales Section, D.D.A. Vikas Bhawan, New Delhi. Ref: Plot No.C-216, Sarvodaya Enclave, New Delhi110017. Dear Sir, This is to inform you that I intend to gift the above mentioned Plot to Smt. Shakuntala Devi (Mother-inLaw) out of mutual love and affection and as such I shall request you to please let me know the formalities which I have to complete there off. Thanking You, Yours faithfully, Sudha Dayal." 25. Smt. Sudha Dayal is no more and neither is Smt. Shakuntala Devi. The fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. Various charges have been paid by Smt. Shakuntala Devi including the lease charges in the society. Finally, the letter written by Smt. Sudha Dayal, that she wishes to transfer the property in her mother-in-law's name completely clinches the issue. As against all these documents, the mutation and the conveyance deed by the DDA etc. are in favour of Smt. Sudha Dayal and thereafter, in favour of Mr. Mayank Dayal. Conveyance deed and other such documents have their own consequences in law. However, the evidence is overwhelming and pointing to the fact that Smt. Sudha Dayal always had trust in her mother in law. Thus, Smt. Shakuntala Devi is entitled to seek a declaration that the property actually belongs to her. Such a view is also expressed by the Supreme Court recently in Vinod Kumar Dhall v. Dharampal Dhall [Civil Appeals No.4534-4535/2018 decision dated 16th April, 2018] wherein the Supreme Court declared the property to be a family property and not an exclusive property of the Plaintiff who was one of the coparceners. The extracts from the said judgement are set out below: "15. The bare reading of the aforesaid provision contained in Section 4(3) of the Act makes it clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beginning and till today the family is residing in the house. Apart from that, the plaintiff has admitted that when he came to Delhi on posting at All India Institute of Medical Sciences, he started living in the rented accommodation, as there was a paucity of accommodation for his stay in the house in question. Thus, all the facts and circumstances indicate that it was a family property and not the exclusive property of the plaintiff - Dharampal. Thus, the Courts below have acted not only perversely but in a most arbitrary and illegal manner, while accepting the ipse dixit of the plaintiff and in decreeing the suit. Such finding of facts which are impermissible and perverse cannot be said to be binding. The legal inferences from admitted facts have not been correctly drawn. 21. Merely the fact that house tax receipt, electricity and water bills and other documents are in the name of Dharampal would carry the case no further, as it was the father who got the name changed of Kumari Sneh Lata in question in the name of Dharampal. The receipts were only to be issued in the name of the recorded owner, but Dharampal never resided in the house as he was in service out of Delhi, obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, it is well settled that Section 4 of the Benami Transactions (Prohibition) Act, 1988 is not attracted in cases where property is held by the person standing in a "fiduciary" capacity for the benefit of another. It is equally well settled that existence of fiduciary relationship has to be determined in the fact situation of a particular case [See Marcel Martins Vs. M. Printers & Ors., (2012) 5 SCC 342 and P.V. Sankara Kurup Vs. Leelavathy Nambiar, (1994) 6 SCC 68]." 31. Going by the letters written by Smt. Sudha Dayal, which are on record, it cannot be held that she did not trust her mother-in-law or that she could not have been in a fiduciary relationship. Since it is stated that there was a legal impediment in the transfer of her brother's property, in the name of anyone except the blood relations, it is not unimaginable for an understanding to be arrived at that though the money is being paid by the mother-in-law, the property would remain in the daughter-in-law's name. 32. The bar under Section 4(1) of the Benami Transaction Act, which is the basis of the application under Order VII Rule 11 CPC would, therefore, not apply in the present case, as it is protected by Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udha Dayal being the daughter in law of Smt. Shakuntala Devi was in a fiduciary relationship with her mother in law and held the property in trust on her behalf for the benefit of the entire family. 37. Upon the decision of Issue no.4, Suit no. 2441/14 is liable to be dismissed, in the light of the findings above. The relief of possession sought for in I.A.6501/17 is rejected. The issue no.4 is taken up as a preliminary issue and decided against the Plaintiff, Shri Mayank Dayal. I.A. 15281/14, under Order XXXIX Rule 1&2 CPC is dismissed. I.A. 20821/14 under Order XXXIX Rule 4 CPC is disposed of as infructuous. B. Suit no. 1640/14: Smt. Shakuntala Devi v. Vinod K. Dayal & Ors. 38. The decision of Issue no.4 in Suit no.2441/14 in favour of Smt. Shakuntala Devi, results in a declaration being granted in her favour that she was the sole owner of the suit property. However, the said declaration would enure to all her legal heirs and not only to Mr. Vinay Dayal. The disputes inter se the legal heirs is not the subject matter of the present litigations as Shri Vinay Dayal relies upon a will of Smt. Shakuntala Devi dated 9th September 2015. All questions as to the legality, validity and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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