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TMI Blog2008 (1) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... cha Singh Anand and Plaintiff No. 3 had from their own income and funds purchased the lease hold rights in the property and premises bearing No. 6, Cavalry Lines, Mall Road, Delhi-110007 for the residence of all their family members. The entire sale consideration amounting to ₹ 2,05,000/- flowed from Late S. Sucha Singh Anand and the Plaintiff No. 3. The said property was purchased by the aforesaid persons as a joint family property and Conveyance Deed dated 1.11.1961 was executed in the name of defendant No. 1. 4. At the relevant time when the conveyance was got executed in the name of defendant No. 1, the eldest son (defendant No. 3) was in the USA and since defendant No. 1 was the second major son of Late S. Sucha Singh, the property was purchased in his name as a trustee of the entire family. This was the understanding between all members of the family up to the filing of the suit. The Plaintiff and defendants resided together in the said property and in course of time, only Late S. Sucha Singh, Plaintiffs, defendant No. 1 and defendant No. 2 were left in the physical possession of the property, though the property still remained a joint family property of all. Even up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trustee' used in the plaint is without any significance as the ingredients of the said exception have not been pleaded in the plaint. Reliance has been placed on Anil Bhasin v. Vijay Kumar Bhasin and Ors. 102 (2003) DLT 932 to emphasize the effect of the repealment of Sections 81 and 82 of the Indian Trusts Act by Section 7 of the Benami Act. It has been contended that after Section 81 and 82 of the Indian Trusts Act were repealed, the concept of trusteeship or fiduciary capacity or the transferee being deemed to be holding for the benefit of the person providing the consideration has undergone a change. Property purchased by a parent in the name of a son does not fall under the category of a fiduciary relationship and is clearly hit by the prohibition contained in the Benami Act. Therefore, the suit is not competent and is in the teeth of the prohibition contained in the Benami Act. The plea of existence of a Trust and the existence of a Joint Hindu Family are mutually distructive. It is not pleaded that there was any co-parcenary between the defendant No. 1 and Late S. Sucha Singh to make the doctrine of blending applicable. 7. The defendant states that Late Such Singh nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a female can always make a gift of her self acquired property for the benefit of joint family. All other defendants have pleaded that the suit property is a joint family property. Whether the said property is actually a joint family property or not is a matter which can be determined only after a full-fledged trial after recording of evidence by the parties. Being a question of fact it cannot form the basis for rejection of plaint under Order VII Rule 11, CPC. The averments in the plaint set up a case which is squarely covered by the exception provided under clauses (a) and (b) of Sub-section (3) of Section 4 of the Benami Act. 10. Before proceeding further with the matter it may be expedient to deal with the nature and scope of an application under Order VII Rule 11 for the rejection of a plaint. For deciding an application under Order VII Rule 11 CPC on the ground that the suit is barred by any law, the court has to only see the averments in the plaint and the accompanying documents relied upon by the plaintiff. The court is not supposed to look at the defense set up by the defendant in his written statement. At this stage the Court is only required to satisfy that if the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The bar contained in Section 4 does not operate where a transaction is of the nature as provided by Subsection (3) of Section 4 which begins with a non-obstante clause. Therefore what needs to be determined is whether the averments contained in the plaint (assuming them to be true for the purpose of the present application), would bring the case within the clause (a) and/or (b) of Sub- section (3) of Section 4 of the Benami Act. As Section 4 takes away the right of a party to either approach the civil court, or to defend an action on the basis of a benami transaction, the bar must be strictly construed. As a corollary, the exclusionary clause must be given its full play.(See S.M. Wahi and Ors. v. Ms. Reeta Wahi 2006 V AD (Del) 109). 14. The averments in the plaint along with the documents filed on record are that the property was purchased by the father and step-mother of the defendant No. 1 in his name as he was the only major son/child then available in Delhi in whose name the property could have been purchased at the relevant time. The property was purchased in his name as a nominee of the purchasers. The property was purchased for the benefit of all the members of the family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Anand, Plaintiff No. 3 and entire family members. It is submitted that entitlement of the legal heirs of Late Sardar Sucha Singh Anand as co-owners of the suit property was neither denied nor disputed at any time, by any person including defendant No. 1, either during the life time of Late Sardar Sucha Singh Anand or after his death, as also evident and clear from some subsequent events as averred hereinafter. 17. From a reading of the aforesaid averments it appears that the stand of the defendant that exception (b) to Section 4(3) of the Benami Act is not applicable on a reading of the plaint is not correct. Even though the existence of a registered trust is not pleaded by the plaintiffs, that is not the end of the enquiry. The word ?trustee? here can also imply existence of a relationship of active confidence or a fiduciary one. A particular word used in the pleadings cannot be picked up and interpreted like a statute. The entire pleading has to be read as a whole and a meaning ascribed to the words used therein. Therefore, it would not be correct to pick up the word Trustee and construe it as a Trustee stricto sensu as a registered Trust. Morever, exception (b) contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l enter into any benami transaction , was in force. However, in the present case, the transaction is of the year 1961 when there was no such prohibition. Now, Section 3 of the Benami Act is not retrospective [see R. Rajagopal Reddy dead by LRs v. C. Padmini Chadrasekharan dead by LRs ]. Para 15 of R. Rajagopal Reddy (supra), which reads as follows: 15. In the case of Garikapati Veeraya v. N. Subbiah Choudhry AIR p.553 para 25 Chief Justice S.R. Das speaking for this Court has made the following pertinent observations in this connection: The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. 20. In Anil Bhasin (supra) the Court did not say, and cannot be taken to have held that with the repeal of Sections 81 and 82 of the Indian Trusts Act, 1882, the party relying upon a benami transaction (in cases where Section 4(3)(a) and (b) is invoked) cannot be permitted to prove the said benami transaction, and the existence of conditions (a) and/or (b) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignificant. If Mr. X asks Mr. Y to purchase in his own name certain property, of which consideration has been paid by Mr. X, then that is a Benami Transaction. On the other hand if Mr. X were to ask Mr. Y to buy the property in the name of Mr. X, but for any reason Mr. Y purchases the property in his own name (viz. name of Mr.Y), then the relationship trustee and or fiduciary capacity is available in the former case, but not in the latter case. 23. The second instance given by the learned Judge in the aforesaid paragraph in fact, would be a transaction which would be fraudulent and may constitute criminal breach of trust. It would, therefore, in any event be assailable irrespective of the prohibition contained in the Benami Act. It is well-settled that an authority constitutes a binding precedent only in respect of the principles of law arising and dealt with by the Court in the facts of that particular case. In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. the Supreme Court observed: 59. A decision, as is well known, in an authority for which it is decided and not what can logically be deduced there from. It is also well settled that a little difference in facts or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by leading affirmative evidence. Reliance has been placed upon Mallesappa Bandippa Desai and Anr. v. Desai Mallappa alias Mallesappa and Anr. to contend that the doctrine of blending cannot be applied to the case of a Hindu female. Therefore, the act of plaintiff No. 3 contributing towards purchase of the suit property does not attracts the applicability of doctrine of blending so as to convert the said property into joint family property. For the same purpose reliance has been placed on AIR 1983 Bombay 495 and . 26. The stand of the defendant that the property is not a joint family property to my mind cannot also be decided at this stage without leading any evidence. In para 17 of the plaint it is stated that ?That at the time of the purchase of the suit property, Late Sardar Sucha Singh Anand and his family members was residing at Kashmiri Gate, Delhi. Defendant No. 3 has already gone to USA, for studies, in the year 1957 and subsequently settled in USA. Late Sardar Sucha Singh Anand Along with all his family members shifted in the Suit property in the year 1964.? In Para 32 it is stated that ?That the Plaintiffs submit that the parties herein have interest in the various ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to non-applicability of doctrine of blending in the said case therefore, have to be understood in the light of the above facts established on record. I do not find any averment in the plaint as filed by the plaintiff before me that there was no joint family in existence prior to purchase of the said property or that it came into existence only upon the purchase of the said property. I also do not find any averment in the plaint that the joint Hindu family of late Sardar Sucha Singh was not possessed of any other coparcenery property/joint family property at the time of purchase of the said property. The decision in Kewal Krishan Mayor (supra) was rendered after the parties had led their evidence and upon a full-fledged trial. Since the existence of joint family or joint family property or coparcenery is a question of fact, the same has to be proved by leading evidence. The defense raised by the defendant would also similarly require proof by way of evidence and even otherwise cannot be looked into at this stage. The decisions cited by the defendant on the aspect of blending are therefore of no avail at this stage. 28. As far as the decision in Pushpa Devi (supra) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or cancelled by proper declaration. The defendants contention is that a suit for cancellation has to be filed within three years from the date when the cause of action has occurred. Since in this case the challenge has been made that too without seeking the cancellation of the sale deed in the year 2006, the suit is hopelessly barred by limitation. Reliance is also placed upon judgments reported in (1996) 7 SCC 767 and JT 2000 (8) SC 140. 31. I find that the plaintiffs are not seeking a cancellation of sale deed in this case. Their claim is that the said property though in the name of one party, was purchased for the benefit of all and constituted co-parcenary property. Now a joint family property may not stand in the name of all the co- parceners as ownership in the said property is governed by law and a co-parcener acquires interest in the same by birth and independent of any document of title. So long as his title is not denied by the others i.e., a cloud is not cast on his title, there is no obligation on him to seek a declaration of his title from the court. However, the moment his title is so denied or threatened to be denied or an act detrimental to his interest is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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