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TMI Blog2018 (9) TMI 1939X X X X Extracts X X X X X X X X Extracts X X X X ..... ll aware the property which Mr.Joginder Nath Kapur purchased in the name of his wife was for the benefit of all the children and was in fact the property of late Mr.Joginder Nath Kapur. Admittedly late Mr.Joginder Nath Kapur during his lifetime did not file any suit against his wife seeking a declaration the property belongs to him. Admittedly the plaintiff also did not file such suit till after three years of the death of Mr.Joginder Nath Kapur. Merely by assertion of possession the Plaintiff cannot avoid payment of Court fee in a suit for partition. The married daughter once moves to her matrimonial home after marriage cannot claim that contrary to the customs she is keeping possession of the suit property owned by her mother - In the present case the Plaintiff herself in para no.11 of the plaint has averred the defendant no.1 and 2 live in the suit property and are currently in possession of the title documents. It is also averred defendant no.2 continuous to derive income from the suit property and has acquired other properties from the proceeds and earnings of the said income from the suit property. As per Section 7 (iv) (c) of the Court fee Act, 1870 where the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was got published by the plaintiff claiming the property to be joint and ancestral one; (ii) the plaintiff claims her right in this ancestral property per Section 6 of the Hindu Succession (Amendment) Act, 2005 and she cannot claim such right since her father was not alive on the date of the amendment, as is held in Prakash vs. Phulavati (2016) 2 SCC 36; (iii) further it is alleged the suit is barred by Section 3 of the Benami Transaction Act; (iv) per Section 14 of the Hindu Succession Act the defendant No.1 became an absolute owner of the entire property and; (v) the suit is beyond limitation as the suit for declaration ought to have been filed by Late J.N. Kapoor within his lifetime or within 3 years after his death to claim the subject property belong to him; (vi) the advalorem court fees has not been paid; hence the plaint is liable to the rejected. 4. In support of his contention (i) and (ii) the defendant refers to paras 3 and 5 of the plaint : 3. That in 1956, Sh. Chiranjeet Lai Kapur, father of Sh. Joginder Nath Kapur, was allotted a plot of land admeasuring 200 sq. yards, bearing No. 18/17, West Patel Nagar, New Delhi- 110008, by the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-- the daughter is allotted the same share as is allotted to a son; the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed to be an ancestral one and consequently Section 6 of the Hindu Succession Act, 1956 shall have no applicability. The suit property is a coparcenary property has not even been pleaded by the plaintiff. It is, even otherwise, a settled position of law after passing of the Hindu Succession Act, 1956, the traditional concept of ancestral property has undergone a change. If a person after 1956 inherits a property from his paternal ancestors, the said property shall not be HUF property in his hands but shall be taken to be a self-acquired property of the person who inherits the same. 10. Even otherwise, in Sunny (Minor) Others vs Raj Singh and Others 225 (2015) DLT 211 this Court held:- (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressions fiduciary relationship and trustee, yet these expressions of fiduciary relationship and trustee are not those expressions which will cause the transaction to fall under the exception of Section 4(3)(b) of the Benami Act, but these expressions are those expressions which fall under Sections 81, 82, and 94 of the Trusts Act and which have been repealed by Section 7 of the Benami Act. 19. In view of the above, I hold that the suit is barred by the provision of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. 14. Hence, it is argued per section 4 (3) (b) read with section 7 of the Prohibition of Benami Transactions Act and read with sections 81, 82 and 94 of The Trust Act the claim of the plaintiff is barred. 15. I disagree. The defendant rather has failed to look into the effect of Section 2(9)(A)(b)(iii) of The Prohibition of Benami Property Transaction Act which read as under:- 2. Definition: In this Act, unless the context otherwise requires,-- (1) to (8) xxxxx (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 for such proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /averments, in the present case the existence of the properties in the name of the respondent/defendant/wife will fall as an Exception to the prohibited benami transaction in view of Section 2(9)(A)(b) Exception (iii) inasmuch as it is legally permissible for a person to purchase an immovable property in the name of his spouse from his known sources, and in which position, the property purchased will not be a benami property but the property will be of the de jure owner/plaintiff/husband and not of the de facto owner (in whose name title deeds exist), being the respondent/defendant/wife in the present case. 5. By the impugned judgment since the suit has been held to be barred at the threshold by applying Order VII Rule 11 CPC, and the plaint has been rejected by applying the repealed provision of Section 3(2) of the Act which was no longer applicable, and by ignoring the provision of Section 2(9)(A)(b) Exception (iii) which was applicable, the impugned judgment is hence illegal and is set aside. Whether or not the appellant/plaintiff/husband will or will not have the benefit of Section 2(9)(A)(b) Exception (iii) is a matter of fact which requires trial and such a suit cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the defendant also relied Jupudy Pardha Sarthy vs Pentapati Rama Krishna Others (2016)2 SCC 56 wherein the Court noted:- 18. Lastly, His Lordship after elaborate consideration of the law and different authorities came to the following conclusions:- We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus: (1) The Hindu female‟s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2). (6) The words possessed by‟ used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words restricted estate‟ used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee. 22. However, I may refer to para 10 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties had become the absolute owner of the suit property when the same was purchased in her name by virtue of Section 14 of the Hindu Succession Act, 1956 would be subject to trial. 25. Admittedly no charge ever was created on the property in favour of defendant no.1 in lieu of maintenance, hence Jupudy Pardha‟s case (supra) even otherwise, shall not be applicable. 26. Qua contention (v) the learned counsel for defendant relied upon Leena Mehta vs Vijaya Myne Ors, CS (OS) No.2118/2006 decided on 09.11.2009 wherein it was held:- 5. A perusal of suit shows that the plaintiff sought a declaration that the property standing in the name of her mother, did not belong to her and actually belonged to her father. The property was registered in the name of her mother defendant no.1 in 1975. The husband of defendant no.1 remained alive for 22 long years after 1975 and died in 1997. He did not file a suit against his wife seeking a declaration that the property was actually his benami property in the name of his wife and he was the real owner. If he had not considered defendant no.1 (wife) as owner of the property and he considered the property as his property, he was at libe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession. 29. Qua limitation the learned counsel for the defendants pleaded that Mr.Joginder Nath Kapur expired on 15.12.1987; the plaintiff got married in 1976 and para 8 of the plaint reveal the plaintiff was well aware the property which Mr.Joginder Nath Kapur purchased in the name of his wife was for the benefit of all the children and was in fact the property of late Mr.Joginder Nath Kapur. Admittedly late Mr.Joginder Nath Kapur during his lifetime did not file any suit against his wife seeking a declaration the property belongs to him. Admittedly the plaintiff also did not file such suit till after three years of the death of Mr.Joginder Nath Kapur. 30. Hence, it was argued this suit is primarily a case of declaration and not of partition and the limitation for such a relief would start on 15.12.1987 from the death of Joginder Nath Kapur. It is submitted the claim raised by the plaintiff would only succeed if she gets a declaration that Joginder Nath Kapur is the real owner of this property and she could have got such declaration either during the lifetime of her father or within 3 years of his death and now this suit is barred by limitation. In fact it is argued the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ift deed valued at ₹ 5.93 Crores, to be void but whereas the Court-fee of ₹ 200 only has been paid and hence the plaintiff be directed to pay the actual Court fee. 34. I agree to these submissions. Though the plaintiff claims to be in constructive possession of the property but she herself alleges all documents concerning the property are with defendant no.2 who is even enjoying the rental income, and even per allegations in the plaint she claims her ouster in July, 2014, she need to pay Court fee to the extent of her share in the property to seek partition. 35. In Suresh Kapoor versus Shashi Krishan Lal Khanna Ors. 2015 (2016) DLT 273 the Court held: 15. The learned Single Judge culled out para 7 of the plaint in the judgment and observed that there is unambiguous ouster or exclusion from possession in the suit property and the facts situation being akin to Prakash wati, the Plaintiff will be required to pay court fee on the market value of his share. It would be expedient to extract para 7 of the plaint in that suit which led the learned Single Judge to held that the Plaintiff was ousted from possession: .. That though the Plaintiffs are co-owners and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , business of the said property. 40. A meaningful reading of averments in the plaint shows the plaintiff admits her ouster by the defendants and the ouster is premised on the plaintiff right, title or interest in the property being denied, the plaintiff has to pay advalorem Court fee. In para no.14D of the plaint she has averred the defendant no.2 was conducting commercial business of tuition centre at the suit property. 41. Clever nature of pleadings in the plaint which is of ambiguous nature will not save the plaintiff from her liability to pay Court fee if the exclusion from possession is being established from the pleadings. 42. All the above facts, clearly establishes complete ouster of the plaintiff from the suit property. Moreover as per Section 8 of the Suit Valuation Act, 1887, the value of the suit for the purpose of jurisdiction and Court fee has to be same. The plaintiff has not paid advalorem Court fee on the relief of partition on her share. The plaintiff is liable to pay the same. 43. Qua (b) of contention (vi) the learned counsel for the plaintiff has relied upon Suhrid Singh vs Randhir Singh Others AIR 2010 SC 2807 the Court held otherwise:- 7. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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