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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 ..... ealthy family. In her cross-examination, she states that her father used to deal in shares, had rental income and was a very wealthy man. She had five brothers, who looked after her even after the demise of her father. She was married to Mr. Maheshwar Dayal in 1939, and they were living together in 1876, Haveli Jugal Kishore, Chandni Chowk, Delhi. The transfer letter written by Shri Balbir Singh Goel to the DDA in the name of Smt. Sudha Dayal gives her address as the address of the mother-in-law. The said letter, in original, which bears the extract mentioned above, as receipt of part sale consideration, is clear evidence of the fact that Smt. Shakuntala Devi had paid money to purchase the plot. Smt. Sudha Dayal had authorised her father-in-law Mr. Maheshwar Dayal to deal with the municipal authorities. 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. 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein below: A. Suit No.1640/2014 3. This suit filed by Smt. Shakuntala Devi was the first suit in point of time seeking declaration and possession as also mesne profits 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 Coop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Pass a decree of declaration in favour of the plaintiff and against the defendants thereby declaring the plaintiff to be the sole and exclusive owner of the suit property no.C-216, Sarvodaya 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 ₹ 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which time he had in fact, given a no objection certificate, which itself establishes that the Plaintiff was the owner of the property. When he received the summons in Suit No.1, efforts were made to resolve the disputes. However, since no resolution 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 alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued the matter on the question of law in respect of the Benami Transaction Act, being the only question, as most facts are not disputes between the parties. Since the finding on Issue no.4 extracted above in respect of the fiduciary relationship would result in a finality insofar as most of 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sought to evict her from the house. g) That Mr. Mayank Dayal got the conveyance deed executed in his favour after filing of the first suit. Second suit by Mr. Mayank Dayal is filed seeking possession and mesne profits. Third suit is thereafter filed by Smt. Shakuntala Devi seeking cancellation of all the documents which vested title in Mr. Mayank Dayal. 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 Cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non-construction charges upon Shri Balbir Singh Goel vide letter dated 14th December, 1972; Ex.D1W1/24 Letter written by DDA dated 19th September, 1972, to Shri Balbir Singh Goel asking him to show cause as to why the lease in his favour should not be cancelled on account of his lapse of non-construction over the plot. Ex.D1W1/25 Envelope containing letter dated 19th September, 1972; Ex. D1W1/26 letter written by Shri Balbir Singh Goel to the Additional Secretary (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 lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went from the joint bank account of Smt. Shakuntala Devi and Smt. Sudha Dayal. 24. Ex.D1W1/20, shows that various payments were being made to the DDA from this joint bank account. Thereafter, there are several receipts issued by the Sarvodaya Cooperative Housing Society Ltd., wherein the lease money has also been paid from the joint bank account. Moreover, Smt. Sudha Dayal had authorised her father in law to deal with the various governmental authorities in the 1970s. The letters signed by Shri Maheshwar Dayal i.e. Ex.D1W1/28, Ex.D1W1/29 Ex.D1W1/32, establish the same. Smt. Shakuntala 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 effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers, who looked after her even after the demise of her father. She was married to Mr. Maheshwar Dayal in 1939, and they were living together in 1876, Haveli Jugal Kishore, Chandni Chowk, Delhi. The transfer letter written by Shri Balbir Singh Goel to the DDA in the name of Smt. Sudha Dayal gives her address as the address of the mother-in-law. The said letter, in original, which bears the extract mentioned above, as receipt of part sale consideration, is clear evidence of the fact that Smt. Shakuntala Devi had paid money to purchase the plot. Smt. Sudha Dayal had authorised her father-in-law Mr. Maheshwar Dayal to deal with the municipal authorities. 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 pointin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was constructed in 1966, the plaintiff was not having enough earning so as to invest in the house or to purchase the plot in 1963. He was not even in a position to say his salary was ₹ 400 or not. It was obviously owing to the marriage of Kumari Sneh Lata that the plot was transferred in the name of Dharampal, who happens to be the elder son of Kashmiri Lal. Thus, apparently no money was paid by Dharampal for allotment of the land to the DDA and obviously, it was paid in 1963 by Kashmiri Lal. The money was also spent in construction by the father Kashmiri Lal. Occupation and enjoyment of the house were with the entire family right from the 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The said case is clearly distinguishable as the plea of fiduciary relationship itself was rejected. 29. In Snehlata v. Priti Tandon Anr [Counter claim No.12/2014 decision dated 11th April, 2018], it was held that a married daughter was not in a fiduciary capacity qua her father. In the present case however Smt. Sudha Dayal is the daughter in law and hence part of the same family and can be in a fiduciary relationship with her mother in law. 30. In Kusum Sanghi and Ors v. Raj Kishan Das 2015 VIII AD (Delhi) 198, a Division Bench of this Court, held: 35. As regards the plea of Benami Transaction sought to be raised by learned counsel for the Respondents, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being gone into by the Court. The Will dated 9th September, 2015 would have to be independently proved and established, in accordance with law. The parties are left to their remedies. The rights of Mr. Mayank Dayal and his family are left open to seek their own prayers objecting to the enforcement of the Will. Until then, neither party is entitled to the relief of possession. RELIEFS IN THE THREE SUITS: A. Suit no. 2441/14 : Mayank Dayal v. Shakuntala Devi Ors. 36. Issue no.4 framed in this suit is accordingly answered as under: Whether the defendant No. 1 is the actual owner of the property which was held by Smt. Sudha Dayal as trustee of defendant No. 1? It is held that Smt. Sudha 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. ..... 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