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TMI Blog2019 (4) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... nd defendant under Order VII Rule 11 CPC is dismissed - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... r Order-7 Rule-11(3) C.P.C." 6. The appellant, being aggrieved filed SBRFA No.511 of 2016 in the High Court which appeal was dismissed by the High Court vide its judgment and order dated 18.08.2017. It was observed by the High Court as under: "From the averments made in the plaint it is clear that plaintiff is seeking declaration in his name in respect of suit property with a clear stipulation that he purchased the said property from his own funds/sources in the name of his father and his father was not real owner of the suit property, the Act of 1988 provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held, shall lie by or on behalf of a person claiming to be the real owner of such property. It is not the case of the plaintiff that property in question was held by the defendant No.1 - father, for joint benefit/joint ownership. The suit was clearly hit by section 4 of the Act of 1988 and the learned trial court rightly allowed the application under Order 7 Rule 11 CPC." 7. The decision rendered by the High Court is presently under appeal. Mr. Abhishek Gupta, learned Advocate appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 10. In Marcel Martins1a suit was filed in the year 1990 praying for declaration that the plaintiffs were co-owners of certain properties to the extent of their contribution. After a full-fledged trial, the Suit was dismissed by the Trial Court but the judgment was reversed by the High Court. While considering the question whether the case of the plaintiffs would come within the purview of Sub-Section (3) of Section 4 of the Act, the matter was dealt with by this Court as under:- "28. The critical question then is whether sub-section (3) of Section 4 saves a transaction like the one with which we are concerned. 29. Sub-section (3) to Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act primarily for another's benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate." 33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as under: "There is a technical distinction between a 'fiducial relation' which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and 'confidential relation' which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised. Generally, the term 'fiduciary' applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations." 34. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made." 37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay [2011] 8 SCC 497, wherein Raveendran, J. speaking for the Court in that case explained the terms "fiduciary" and "fiduciary relationship" in the following words: (SCC pp. 524-25, para 39) "39. The term 'fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Abhishek Gupta, learned Advocate. On the other hand, the reliance placed by Mr. R.K. Singh on the decision in Om Prakash2, in our view, is completely misplaced. The issue there was whether prohibition under Section 4 would apply in relation to actions initiated before the coming into force of the Ordinance or not? In any event of the matter, the issue whether the provisions of the Act are retrospective has already been settled R. Rajgopal Reddy through LRs. v. Padmini Chandrasekharaiah through LRs. [1995] 2 SCC 630. 13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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