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TMI Blog2020 (3) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... . Defendant No.3/counter-claimant Ravinder Khanna is prohibited by law from enforcing any right in respect of the subject property held benami, against defendant Nos. 1 2 in whose names the said property is held as well as against other parties who are the heirs of defendant No.1 Prem Prakash Khanna, who has since died. As far as the plea, of the defendant Nos. 1 2 holding the property in trust or for the benefit of the defendant No.3/counter-claimant Ravinder Khanna is concerned, it has been held in that though the parent may be a trustee of a minor son but not of a major son and thus the question of the transaction being within the exception to benami does not arise. Even otherwise, no particulars of the defendant Nos. 1 2 standing in any fiduciary capacity to the defendant No.3/counter-claimant Ravinder Khanna are disclosed. Counter-Claim, on the averments therein, does not disclose any cause of action or entitlement of the defendant No.3/counter-claimant Ravinder Khanna to obtain a declaration of being the real and/or benami owner of the property for partition of which the suit is filed. - CS(OS) 210 OF 2016, IA NO. 1167 OF 2019, CC NO. 10 OF 2018 - - - Dated:- 15-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsels were heard on 10th January, 2020 and in the order of the said date, inter alia the following was recorded: 2. What has emerged is, (i) that property no.M-174, Greater Kailash Part-II, New Delhi is recorded in the name of Prem Prakash Khanna and Krishna Kumari Khanna, who have three sons namely Vinay Khanna, Anil Kumar Khanna and Ravinder Khanna and four daughters namely Shashi Bala Wasdev, Sudha Gupta, Savita Mathur and Anu Narula; (ii) Vinay Khanna and Anil Kumar Khanna instituted this suit against their parents, Ravinder Khanna and their four sisters, for declaration that the property though recorded in the name of the parents, is of the Joint Hindu Family (HUF) and along with the parents, the three sons and four daughters also have a share; (iii) the father Prem Prakash Khanna has died during the pendency of the suit; (iv) the father Prem Prakash Khanna in his lifetime had appointed the mother Krishna Kumari Khanna as his attorney; and, (v) Krishna Kumari Khanna, for herself and as attorney of her husband Prem Prakash Khanna has executed a Gift Deed of the entire property in favour of one of her daughter Anu Narula. 3. Hence in this suit the relief of declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound of the parents not having the mental capacity to execute the same and not on the ground of HUF. 8. The counsels state that they will have to take instructions. 9. I have also enquired from the counsel for Ravinder Khanna that since Ravinder Khanna has already filed the suit for injunction before the Civil Judge and in which evidence on the question of title has been recorded, though in a suit for injunction simplicitor title is not to be adjudicated, how can Ravinder Khanna maintain a Counter Claim for the same relief in this suit. 10. The counsel for Ravinder Khanna states that the Transfer Petition be also called before this Bench. 11. The counsel for Ravinder Khanna has been made aware that if the application for rejection of Counter Claim is heard and the Counter Claim is rejected, the same will also sound a death knell for the civil suit, if at all a finding as to title can be given therein. 12. The counsel for Ravinder Khanna today also seeks adjournment. 13. List on 15th January, 2020. No further opportunity shall be given. 5. The counsel for the defendant No.3 Ravinder Khanna has today in Court, without any Index, handed over a bunch of documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3/counter-claimant Ravinder Khanna, in the order dated 10th January, 2020 had been cautioned in this regard, but since the defendant No.3/counter-claimant Ravinder Khanna has persisted, this Court has no option but to proceed. 11. It is the plea of the defendant No.3/counter-claimant Ravinder Khanna in the Counter-Claim, (a) that the defendants No.1 2 migrated from Lahore, Pakistan along with defendant No.3/counter-claimant Ravinder Khanna, who was about one year and four months old and the defendant No.1 Prem Prakash Khanna joined the Punjab Government (Finance) as Lower Divisional Clerk (LDC); (b) that after partition, five more children were borne to the defendants No.1 2; (c) that the defendant No.3/counter-claimant Ravinder Khanna, in the year 1967 went to Canada and suggested to his parents defendants No.1 2 to establish an independent home in Delhi; (d) that in furtherance thereto, the defendant No.3/counter-claimant Ravinder Khanna started sending money to his parents defendants No.1 2 and sent a total sum of ₹ 1,39,250/- from 2nd March, 1972 to 28th December, 1973; (e) that the plot of land underneath the aforesaid property No.M-174, Greater Kailash Part-II, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as therein is not found to be disclosing any cause of action. 16. Merely because the money for purchase of plot underneath the property and/or for making construction thereon may have flowed from the defendant No.3/counter-claimant Ravinder Khanna to the defendant Nos.1 2, does not make the property of the defendant No.3/counter-claimant Ravinder Khanna in law and the right, if any of the defendant No.3/counter-claimant Ravinder Khanna was only for recovery of the amounts so paid by him to defendants No.1 2 with interest, if entitlement thereto is proved. The said question is no longer res integra. Reference in this respect may be made to K.L. Garg v. Rajesh Garg 2013 SCC OnLine Del 323, Kalpana Balupuri Butta v. Pritendra Kumar Butta 2018 SCC OnLine Del 10716, Satya Prakash v. Natho Devi 2018 SCC OnLine Del 10263 and Satish Kumar Gupta v. Shanti Swaroop Gupta 2018 SCC OnLine Del 9651. 17. Even otherwise, the claim in the Counter-Claim is in the teeth of the bar contained in the Benami Transactions (Prohibition) Act, 1988, since known as the Prohibition of Benami Property Transactions Act, 1988. The Act, prior to its amendment and now, bars a suit, claim or action, to enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is held as well as against other parties who are the heirs of defendant No.1 Prem Prakash Khanna, who has since died. 21. As far as the plea, of the defendant Nos. 1 2 holding the property in trust or for the benefit of the defendant No.3/counter-claimant Ravinder Khanna is concerned, it has been held in Mahesh Karwal v. Satya Devi 2018 SCC OnLine Del 12090 and Amar N. Gugnani v. Naresh Kumar Gugnani 2015 SCC OnLine Del 11248 that though the parent may be a trustee of a minor son but not of a major son and thus the question of the transaction being within the exception to benami does not arise. Even otherwise, no particulars of the defendant Nos. 1 2 standing in any fiduciary capacity to the defendant No.3/counter-claimant Ravinder Khanna are disclosed. 22. I am thus of the opinion that the Counter-Claim, on the averments therein, does not disclose any cause of action or entitlement of the defendant No.3/counter-claimant Ravinder Khanna to obtain a declaration of being the real and/or benami owner of the property for partition of which the suit is filed. 23. IA No.1167/2019 is thus allowed. 24. Counter-Claim No.10/2018 is dismissed. - - TaxTMI - TMITax - B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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