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TMI Blog2019 (3) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the defendant. The present application under Order 6 Rule 12 CPC is liable to be allowed. Whether the claim of the defendant would be barred under the Prohibition of Benami Property Transaction Act, 1988? - Held that:- A suit would not lie to enforce any right in respect of the property held benami against the person in whose name the property is held. No defence can also be based on any right in regard to any properties held benami. What the defendant had sought to plead is that the present suit property has been bought by the plaintiffs in the name of the plaintiffs out of the funds generated from the family business/funds generated after disposing of the joint family property - The plaintiff has failed to aver the basic requirements to show or plead about existence of any Hindu undivided family or joint family property. The pleas raised by the defendant are vague, unsubstantiated and frivolous. The defence raised by the defendant is clearly barred by Section 4 of the Prohibition of Benami Property Transaction Act. The exception to the Act as stated in section 2(9)(A)(i) or (iv) are not applicable. There is a clear averment made in the plaint that the defendant was ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d floor was purchased in the name of plaintiff No. 1 vide sale deed dated 14.06.2001. Similarly, plaintiff No. 2 became the owner of the first and second floor along with roof rights of the suit property vide sale deed dated 14.06.2001. In 2005, the defendant due to various problems in her marriage came back and started living in the one room on the ground floor. The plaintiffs allowed the defendant to reside in the said suit property on gratuitous basis. Litigation was filed by the defendant against her ex-husband. Subsequently, a settlement was arrived at on 26.11.2009 before the Delhi High Court Mediation and Conciliation Centre wherein the defendant received an alimony of ₹ 36,50,0000/- from her ex-husband and whereby, divorce by mutual consent was effected. 4. It is pleaded that the defendant is a chronic litigant, well versed with the court procedures and is aware of the rigors of law to extort and blackmail people. It is pleaded that the plaintiffs allowed the defendant to reside in one room on the ground floor being the brother and the entire expenses for running the household, electricity dues, house tax, etc. were taken care of by plaintiff No. 1. It is pleaded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atra v. Mr.Y.P.Batra Ors., 2014 (1) AD Delhi 156 to submit that where property is bought from the funds obtained from other sources, the said other sources are barred to claim title to the property under the Prohibition of Benami Property Transaction Act, 1988 and the present suit would accordingly be barred. It is pleaded that there was no joint family property or HUF in existence as has been vaguely alleged. 9. Learned counsel appearing for the defendant has however pleaded that the present application prays passing of a decree based on admissions only. He submits that there are no admissions whatsoever in the written statement or documents to warrant passing of such a decree. It has been pointed out that the defendant herself has filed a suit being CS(OS) 16/2017 where she has sought a decree of partition in respect of 10 properties including the present suit property. In the said plaint which is pending adjudication before this court, it has clearly been stated that the present suit property was purchased by the plaintiffs from the proceeds of the sale of the property being H-336, New Rajinder Nagar, New Delhi and also by usurping the movable properties left behind by La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reatening to use confidential and privileged communication, to subserve the false cause of action, being raised herein, he has violated the confidentiality of the lawyer/ client relation and it is for the reason he is contradicting the statements made by his client who he represented in the divorce and related matter(s). It is pertinent to mention herein that the alimony money of ₹ 36.5 Lakhs paid to the defendant was also mischievously siphoned off by the plaintiffs who deposited that the same in a joint bank account and thereafter mis-appropriate the same for which the defendant is trying to ascertain from the record and the present counsel of the Defendant has in violation of his professional duties, refused to even return back the file pertaining to the case in furtherance to the conspiracy of the plaintiff(s) and he is guilty of professional misconduct. 13. Reference may also be had to paragraphs 5 and 15 of the plaint and the corresponding response in the written statement which read as follows:- 5. That however out of love and affection the plaintiffs allowed defendant to reside in one room of the ground floor of the suit property, whereas the mother of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinue to reside in the suit property. The corresponding response in the written statement is vague. There is no categorical denial of the fact that the status of the defendant is that of a licensee. However, to ascertain the complete defence of the defendant, I may also look at some of the other paras of the written statement. 15. In para 1 of the written statement, the defendant states that the plaintiffs have illegally and scrupulously got the property registered in their name which was purchased from the funds of the joint family business belonging to the father of the parties-Late Sh. Ravi Shanker Tandon. It is pleaded that the property is a benami property in which the defendant has also a right. In para 2 of the written statement, the defendant has stated that the suit property as per the desire of the late father was to be in the joint names of the plaintiffs, defendant and the mother. However, the plaintiffs taking the advantage of the death of late Sh. Ravi Shankar Tandon siphoned huge sum of money from the family business. Hence it is pleaded that the sale deeds ought to have been registered in the joint names and are liable to be declared as null and void for whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t she was induced to enter into under the promise of being given her due share. It is denied that the defendant has no legal right to stay in the premises, it is submitted that the suit is liable to be dismissed, the same being without any cause of action and a concoction of lies, suit is based on falsehood, fabrication and made up imaginary allegations with a view to coerce the defendant to give up her legitimate claims rights and entitlements, the same is thus liable to be dismissed at the very threshold. 16. That the contents of Para no. 19 are wrong and denied. It is submitted that the defendant is in legal, lawful occupation of the ground floor in view of her right title and entitlements especially in view of the fact that even the present suit premises has been purchased from the funds generated after disposing of the joint family property in which the defendant has an equal right share and entitlement. The plaintiffs are blowing both hot and cold at one point they are calling the defendant a trespasser, illegal occupant whereas on the other hand they are offering to provide for alternative accommodation for her living (which surprisingly is nothing but a ploy to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e after she will initiate the requisite legal proceeding she was advised. The plaintiff by manipulating those documents even trying to disentitle the defendant for her legitimate claims and using the present proceeding as a coarse tactic. The defendant hereby categorically declares such black signed documents, deeds, attorneys etc as null and void which were scrupulously, illegally obtained by deceit by the plaintiff by exercising his clout, inducement, coercion and enjoying domination over the defendant taking advantage of her pitiable circumstances brought around on account of untimely death of her father with whom the defendant was extremely attached and her matrimonial discord which was orchestrated by the plaintiffs as such no such further order are called for rather the dated 19.10.2016 needs to be modified in view in the interest of Justice. Essentially what the written statement seeks to plead is somewhat contradictory and jumbled up. It is stated that the father desired that the property would be bought in the joint names of the plaintiff, defendant and the mother. It is also pleaded that the defendant is entitled to reside in the premises in view of the family arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family property, and (iii) joint ancestral family property are not the same. In all the three things there is no doubt a common subject, property, but this is qualified in three different ways. The joint property of the English law is property held by two or more person jointly, it characteristic is survivorship. Analogies drawn from it to joint family property are false or likely to be false for various reasons. The essential qualification of the second class mentioned above is not joints merely, but a good deal more. Two complete strangers may be joint tenants according to English law; but in no conceivable circumstances except by adoption could they constitute a joint Hindu family, or in that capacity, hold property. In the third case, property is qualified in a two-fold manner, that it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence, because the word ancestral connotes descent and hence pre-existence. But because it is true that there can be no joint ancestral family property without pre-existing nucleus of joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being CS(OS) 683/2007 titled Mrs. Saroj Salkan Vs. Mrs. Huma Singh Anothers quoted from the said judgment as follows: 8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 and which paras read as under:- . 7(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being ancestral properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created i.e. whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter. . 11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e whether because of pre 1956 position or because of the post 1956 position on account of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready reproduced above paras 2 and 3 of the plaint. As per Order VI Rule 4 of the Code of Civil Procedure, 1908 (CPC) and the ratios of the judgments in the cases of Surender Kumar (supra), Sunny (Minor) Anr. (supra) and Mrs. Saroj Salkan (supra), it was necessary for the plaintiff to state as to how HUF exists specifically either because of the pre 1956 or the post 1956 position. If HUF and its properties are stated to exist because of the pre 1956 position, then, what are the specific properties with their details which were inherited by defendant no.1 had to be mentioned and only on inheritance by the defendant no.1 of such ancestral properties prior to 1956 would defendant no.1 have HUF properties and its funds in his hands. This aspect is conspicuously silent in the plaint. I may note that it is not the case of the plaintiff in the plaint that HUF and its properties were created post 1956 by the defendant no.1 by throwing the properties into a common hotchpotch. Also, at this stage, it is relevant to refer to the observations made in the judgment in the case of Surender CS(OS) No.1862/2010 Page 13 of 16 Kumar (supra) wherein reference is made to passing of the Benami Transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the requirement to read pleadings meaningfully in view of the relied upon documents and see whether the same are not illusory or vexatious. 21. The observations of the coordinate Bench and the Division Bench are squarely applicable to the facts of the present case. Except for a bald plea in the written statement that the suit property has been purchased from funds siphoned off from the family business and another plea raised namely that the suit property was purchased after disposal of the joint family property, there is no other plea raised in the written statement to explain what right the defendant has to reside in the suit property. There is no averment in pleadings as to when the HUF joint family property came into existence especially whether the HUF came into existence prior to 1956 or post 1956 on account of throwing of properties into a common hotch-potch. There is no reference to any Income Tax returns filed by any of the ancestors whereby the properties were shown as HUF/joint family properties. I may also note that the suit property was bought by a registered conveyance deed on 14.06.2001. The defendant came back from her matrimonial home in 2005. She has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored. 24. Similarly, reference may also be had to the judgment of the Division Bench of this court in Delhi Jal Board v. Surendra P. Malik, 104 (2003) DLT 151 wherein this court had laid down the following tests:- 9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any right exists in favour of the defendant to enable her to continue to occupy the suit property. 27. In my opinion, the defence taken by the defendant is vague and unsubstantiated and a mere attempt to prolong the present litigation. Accordingly, no defence is available to the defendant. The present application under Order 6 Rule 12 CPC is liable to be allowed. 28. I may also note that the written statement herein was filed on 02.11.2016. On or around 11.01.2017, defendant filed a suit being CS(OS) 16/2017 titled as Rashmi Tandon vs. Rajeev Tandon Ors. In the plaint of that suit, she states that she is occupying a portion of the present suit property being a coparcener of the estate of late Sh. Rikhi Ram Tandon along with late Sh. Ravi Shankar Tandon. Late Sh. Rekhi Ram Tandon, the grandfather of the defendant is said to have died on 03.04.2011. In para 8 of the said plaint being CS(OS) 16/2017, the said defendant who is the plaintiff there states as follows:- 8. That the Defendant No.1 and his wife, namely, Jagriti Tandon i.e. defendant No. 2 purchased the property and premises at D-404, Defence Colony, New Delhi from the proceeds of the sale of the property H-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 03.04.2011. I may only note that for the purpose of adjudication of the present suit I may take into consideration the pleadings raised in the present suit only. Reference in this context may be had to the judgment of the Supreme Court in the case of Ram Sarup Gupta (Dead) By Lrs. V. Bishun Narain Inter College Ors., (1987) 2 SCC 55 , where the court held as follows: 6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. 31. Reference may also be had to the judgment of the Supreme Court in Bachhaj Nahar v. Nilima Mandal Anr., (2008) 17 SCC 491 where the Supreme Court reiterated the above position. Hence for the purpose of adjudication for the present application and the suit, I confine myself to the defence taken by the defendant in the written statement filed in this suit. 32. I may note, that apart from the above ground for allowing the present application, there are two more grounds why this application be allowed. The first issue is whether the claim of the defendant would be barred under the Prohibition of Benami Property Transaction Act, 1988. I may look into the said plea. 33. Section 2(9) defines a benami transaction as follows: 2. In this Act, unless the context otherwise requires,- . (9) benami transaction means,- (A) a transaction or an arrangement- a. where a property is transferred to, or is held by, a person, and the consideration f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enami. What the defendant had sought to plead is that the present suit property has been bought by the plaintiffs in the name of the plaintiffs out of the funds generated from the family business/funds generated after disposing of the joint family property. 35. Reference may be had to the judgments of this court in Ajay Batra Ors. vs. Y.P.Batra and Ors.(supra). That was a case in which the plaintiff had argued that one of the properties in Defence Colony being HUF property the same be partitioned declaring share of each parties in accordance with law. As there was a plea that the rent of the property was being credited in the account of Y.P.Batra, HUF, the court held as follows:- 15. I have wondered as to how the plaintiff/s can maintain the suit for declaration and partition of properties which are in the name of either Mrs. Geeta Batra or Mrs. Jaya Batra or Ms. Deeksha Laxmi Wadhera Batra and the title whereof is in their names, even if it is the admitted position that the sale consideration thereof flowed from Mr. Y.P. Batra. .. 18. The Benami Transactions (Prohibition) Act 1988 vide Section 4(1) thereof prohibits such a suit. Though section 4(3)(a) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , held that the plaint has to be read meaningfully and not formally and it is the duty of the Court to see whether a real cause of action has been made out in the plaint or something illusory has been projected and that after so reading, vexatious plaints have to be thrown out. In fact during the course of hearing it was repeatedly asked from the counsel for the plaintiff whether there was anything else to show that there was a coparcenary in fact in existence at any time; whether any Income Tax returns thereof were filed; whether there was any other joint property of the parties earlier or now. The counsel candidly admitted that there is none. 24. Merely because a person at the time of acquisition of the property may be residing with his parents and siblings and merely because the sale consideration has flown from the parents or from some other siblings is not enough to bring a case within the exception aforesaid to the prohibition contained in Benami Act. It cannot be lost sight of that benami transactions prevalent earlier, generally were between family members and hardly ever in the name of absolute strangers, and if pleas as in the present case were to be held to be falli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given. 41. In Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006 SC 3569 , the Hon ble Supreme Court in paragraphs 14 and 15 held as under:- 14. The possession in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given. 15. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppels has been incorporated by the legislature in the said section. 42. In Vishal Builders Pvt. Ltd. vs. Delhi Development Authority Ors., 2006 (130) DLT 667 , this court held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estic Violence Act. Other than this one sentence there is no attempt to plead application of the said Act. In the course of arguments, no submissions to this effect were also made. 46. I may only add that this court has not taken any view on the merits or demerits of the plea raised by the defendant in her suit that has been filed being CS(OS) 16/2017. Present adjudication is confined to the plaint herein and the defence raised in the written statement filed by the defendant and the documents thereof. Hence, the findings recorded herein would not prejudice the defendant in her adjudication of the said afore-noted suit. 47. Accordingly, the present application is allowed. CS(OS) 501/2016 Accordingly, a decree of permanent injunction is passed in favour of the plaintiffs and against the defendant restraining the defendant, her agents, servants, etc. from entering the suit property or occupying the suit property or causing any nuisance or interference in any manner with the possession of the plaintiffs. A decree of mandatory injunction is also passed in favour of the plaintiffs and against the defendant directing the defendant, her agents, associates, etc. to remove an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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