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TMI Blog2002 (8) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... le benefit of Smt. Raj Rani Bhasin. The same also devolved upon the parties here to and are liable to be partitioned. It is submitted that Smt. Raj Rani Bhasin purchased property No. 2-R, Second Floor, DCM Building, 16-Barakhamba Road, new Delhi, in the name of defendant No. 3. She also purchased office bearing No. 1110, Ashoka Estate, Barakhamba Road, New Delhi, in the name of defendant No. 3. She also purchased office bearing No. 1110, Ashoka Estate, Barakhamba Road, New Delhi, admeasuring 640 sq.feet in the name of defendant No. 3. It is submitted that the defendant No. 3 held the said property as trustee to Smt. Raj Rani Bhasin and for her benefit. The said property was purchased in the name of defendant No. 3 in fiduciary capacity and the same also devolved upon the parties hereto after the demise of Smt. Raj Rani Bhasin. Smt. Raj Rani Bhasin also purchased three flats on second, third and fourth floors of DCM Building, Barakhamba Road, New Delhi, a Farm House of Ansal Properties situated at Mehrauli-Guargaon Road, and plot No. 918-A, DLF City, Gurgaon, from the sale proceeds of the property bearing No. E-205, Greater Kailash-II, New Delhi, and the fixed deposits which devol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction being prohibited under law cannot be put to an issue. This Court in Smt. Nirmala Devi v. Shri Karam Chand Civil Revision No. 45 of 1992 decided on 1-5-1992 held that: ".....The plea which is sought to be raised, namely, that it was a Benami transaction in the name of the defendant is clearly prohibited by the Benami Transaction (Prohibition) Act, 1988 (Act No. 45 of 1988). May be that it is an additional approach for getting the same relief but no amendment can be allowed having the effect of allowing an additional plea to be raised which is prohibited by law. As such, it is not permissible for the plaintiff to take up such a plea which is prohibited by virtue of Section 4 of the said Act." 4. The plaintiff/applicant on the other hand, has relied upon the proviso to Section 4 of the Benami Act, which excludes from the prohibition of the said Section, the situation 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 a capacity. 5. It may be pertinent at this stage to discuss some basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the learned counsel for the plaintiff/applicant, is that defendant No. 3 being the son of Smt. Raj Rani Bhasin (mother of both plaintiff and Defendant No. 3), therefore the property was held by the said son/Defendant No. 3 as a trustee, or as a person standing in fiduciary capacity qua the mother, and therefore was falling within the scope of Section 4(3) of the Benami Act, and as such not hit by the prohibition contained in Section 4. 12. On the other hand, the contention of Shri Vijay Kishan, learned counsel appearing for defendants, is that the transaction referred to in the amendment application (viz of mother paying the consideration for the property which was transferred in the name of son (Defendant No. 3), is clearly a "benami" transaction under Section 2(a) of the Act, and therefore prohibited by Section 3 thereof, as also under Section 4. According to Shri Vijay Kishan, no suit, claim or action to enforce any right in respect of any property held benami, would be maintainable. Furthermore, on the admitted averments made regarding the property being benami, the related plea with respect to the purchase of the plot being a benami transaction being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of the person buying or providing the consideration as was the position prior to the amendment of 1988. 16. At the same time, there exists the provisions of Section 4(3)(b) of the Benami Transactions Act 1988, being in the nature of a proviso excluding from the prohibition, the right to recover property held benami, in such situations where the person in whose name the property is held, is a trustee or other persons standing in a fiduciary capacity. 17. To my mind, the only interpretation which can reconcile all the provisions, is to hold that after the repeal of Sections 81 and 82 of the Indian Trusts Act 1882, it is only those instances of fiduciary capacity such as property of partnership firm held in the name of one of the partners, or property which Mr. X wanted Mr. Y to buy in the name of Mr. X, but in violation of that instruction, Mr. Y has bought the property in his (Y's) own name. In such a case mr. Y being in fiduciary capacity and a trustee of Mr. X, the provisions of Section 4(3)(b) will ensure that prohibition of Benami Transaction does not stand in the way of a legal proceeding by Mr. X to enforce any right in respect of the said property. 18. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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