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TMI Blog2009 (8) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... ura, New Delhi under Sections 406/498A IPC. Pursuant thereto an FIR was registered against the three Defendants on 3rd January 2007. 3. The Plaintiff also instituted proceedings against the Defendants under the Protection of Women from Domestic Violence Act, 2005 ( PWDVA‟) claiming inter alia maintenance and right of residence and interim orders on those terms. 4. The proceedings under the PWDVA before the learned Metropolitan Magistrate ( MM‟), New Delhi witnessed the passing of an interim order in favour of the Plaintiff on 7th December 2006 directing the Respondents not to dispose of the shared household i.e. 32, Sultanpur Farms, Mehrauli. The said interim order was continued on 11th December 2006 and again on 12th December 2006 till 18th December 2006. A perusal of the order passed by the learned MM on 18th December 2006 shows that the said interim order was not continued thereafter. 5. The present suit was filed by the Plaintiff on 14 th February 2007 under Section 18 of the Hindu Adoption Maintenance Act, 1956 ( HAMA‟) seeking the following relief: (a) pass a decree of permanent injunction restraining the Defendants, their servants, agents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in Aaya Nagar Farms, Mehrauli, New Delhi. It was claimed that there was also a flat in Gurgaon the details of which were not known to the Plaintiff. In para 31 the Plaintiff asserted that being legally wedded wife of Defendant No.1 and daughter-in-law of Defendant Nos. 2 3 is entitled to maintenance under the Hindu Adoption Maintenance Act, 1956. This Hon ble Court and the Hon ble Supreme Court of India has held that the wife was entitled to 1/3 rd of husband‟s income as maintenance. The Plaintiff is entitled to the entire hotel property as it belongs to Defendant No.1/husband. 8. Thereafter in the same paragraph the assets and business establishment of the Defendants to the best of the knowledge of the Plaintiff were set out. and the properties included Farm House at 32, Sultanpur Farms, Mehrauli, New Delhi and Hotel Clairmont in Mehrauli Gurgaon Road, Aaya Nagar, New Delhi. 9. Along with the suit the Plaintiff also filed an application being IA No.1711 of 2007 under Order XXXIX Rules 1 and 2 CPC seeking an interim injunction restraining the Defendants from disposing of or alienating the aforementioned properties during the pendency of the suit. 10. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the earlier order dated 15th February 2007 restraining the Defendants from alienating or creating third party interests in both properties i.e. Hotel Clairmont, Aaya Nagar, New Delhi and 32, of 24 Sultanpur Farms, Mehrauli, New Delhi and submitted that his clients would be bound by the order dated 15th February 2007 and undertake to comply with the orders. The case was thereafter listed on 7 th August 2007. On that date the interim order was not continued. However on 9th October 2007 it was continued. 14. On 18th January 2008 the following order was passed by this Court: It is stated by the learned Counsel for Defendants No. 1 and 4 that two applications, one on behalf of Defendant No. 1 and her on behalf of Defendant No. 4 for condonation of delay in filing WS were filed but same are not on record. Learned Counsel seeks time to check with the Registry. The matter be listed on 22nd May, 2008 Parties shall file all documents within four weeks. No further opportunity shall be given for filing documents. Interim order to continue till then. 15. The immediate next date of hearing was 22nd May 2008 when the following order was passed: It is stated by Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts/Respondents 2 and 3 that they had in fact not violated or willfully disobeyed any of the orders passed by this Court. It was submitted that the learned MM in fact did not continue the restraint orders vis- -vis the property at 32, Sultanpur Farms, Mehrauli, New Delhi beyond 18th December 2006. Therefore as on 15th February 2007 when the suit was listed before this Court an erroneous statement was made on behalf of the Defendants to this court by their counsel that the said restraint order will be continued to be obeyed by them. The other statements made from time to time including the one on 6th June 2007 are also stated to have been made under some mistaken impression that the interim order passed by the learned MM prior to 18th December 2006 was continuing. It is contended that the interim order passed by this Court was not continued in any event beyond 22nd May 2008. The sale deed was executed only thereafter on 9th June 2008 and therefore as regards the property at 32, Sultanpur Farms, Mehrauli, New Delhi the sale by Respondent/Defendant No.3 to Aarken Advisors Pvt.Ltd. was not in disobedience of the interim order dated 15th February 2007. As regards the property at Aya Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of settlement. In terms thereof a sum of ₹ 4 crores and property worth ₹ 60 lakhs was to be given to the Plaintiff. However the Respondents at the last moment backed out of the settlement leaving the Plaintiff without any option but to pursue the proceedings under the PWDVA. It is submitted that there are averments in the plaint which at this stage have to be taken at its face value, which show that the funding for the properties both at Aaya Nagar as well as Sultanpur Farms was provided by Defendant No.1. According to the Plaintiff her claim for maintenance is essentially against Defendant No.1 and in order to recover maintenance she lays claim to the properties of Defendant No.1 which are held benami. 23. It is pointed out by Mr. Narula that the bar under the Benami Transactions (Prohibition) Act, 1998 (Benami Act) would not apply in such instances because the Plaintiff is not seeking any declaration vis- -vis these properties as a rightful owner herself. The Plaintiff is only claiming that her husband Defendant No.1 is a rightful owner and that these properties should be made available for her to recover maintenance due to her from him. Likewise, the claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Sethi also distinguishes the judgment in Radhika Narang v. Kuldeep Narang 156 (2009) DLT 637 (DB) relied upon by Mr. Narula as the question whether the Plaintiff is entitled to seek maintenance at all under Section 18 HAMA against her father-in-law or mother-in-law was not decided in the said case. 27. Essentially on the same averments the Defendants 2 and 3 have filed IA No. 4037 of 2009 under Order VII Rule 11 CPC. The specific ground on which rejection of the plaint is sought is that the suit as presently formed does not disclose any cause of action vis- -vis Defendants 2 and 3. It is submitted no claim for maintenance can be made against either of them under Section 18 HAMA. The claim to the immovable properties owned either by FMPL absolutely or Defendant No.3 in her individual capacity, which was subsequently sold to Respondent No.6, would be barred under Section 4 read with Section 2 of the Benami Act. In any event there is no prayer for cancelling the title deeds by which these parties became the legal owners of the properties in question. Inasmuch there is an express bar to the in-laws to the relief being granted, the plaint be rejected as regards Defendants 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It may be true that the date was preponed to 28-7-1988, but from a bare perusal of the order passed by the learned Civil Judge, Senior Division, it is evident that the order of injunction was not extended. Even on the subsequent dates, the order of injunction was not extended. In fact, no order extending the period was passed nor any fresh order of injunction was passed by the learned Civil Judge, Senior Division, subsequent thereto. It is not possible therefore for this Court to accept the submissions of the Defendants that the execution of the sale deed dated 9 th June 2008 was in violation of an interim order passed by the court as far as the property at 32, Sultanpur Farms, Mehrauli, New Delhi is concerned. 31. As regards the property at Aya Nagar, Mehrauli, New Delhi, this Court is really not called upon to decide whether the sale deed dated 29 th March 2006 by which this property was sold to FMPL was a sham transaction. There is no prayer sought for in the suit in that regard. In any event the said transaction obviously took place long before any interim order was passed in respect thereof by any court. While the documents placed on record prima facie show that a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the Plaintiff here. In any event as already noticed, the petition filed by the Plaintiff under the PWDVA has been dismissed for default. As such, therefore, the prayer in the suit for grant of maintenance is incapable of being granted to the Plaintiff insofar as Defendants 2 and 3 are concerned. 34. The case made out in the plaint is that the property at 32, Sultanpur Farms, Mehrauli, New Delhi is being held by Defendant No.3 as benami for Defendant No.1, her son. In this context the provisions of the Benami Act require to be noticed. The expression benami‟ is defined under Section 2(a) to mean any transaction in which property is transferred to one person for a consideration paid or provided by another person. Under Section 3(1) there is a bar to any person entering into a benami transaction. The only exception carved out is under Section 3(2) which states that such a bar would not apply to the purchase of a property by any person either in the name of his wife or unmarried daughter. Clearly, the prohibition would apply if the property is purchased in the name of the mother. Section 4 of the Benami Act imposes a complete prohibition on the right to recover a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the title deeds under which the properties are held either by FMPL or at present by Respondent No.6. For all of the above reasons, this Court is of the view that prayer of Defendants 2 and 3 in the application under Order VII Rule 11 CPC should succeed. The plaint is accordingly rejected vis- -vis Defendants 2 and 3. IA No. 9739/2009 in CONT. CAS(C) No.180/2008 37. In view of the orders passed in the Contempt Petition, the application is disposed of. IA No. 12163/2008 in CONT. CAS(C) No.180/2008 38. The interim order dated 17th November 2008 in the present application will stand vacated. 39. The application is dismissed. IA No. 7940/2009 in CS (OS) No.276/2007 40. In terms of the order passed in IA No. 4037 of 2009 under Order VII Rule 11 CPC, the application is disposed of. IA No. 1711/2007 in CS (OS) No.276/2007 41. It is submitted by learned counsel for Defendants 2 and 3 that the interim order dated 12th March 2007 restraining Defendant No.1 from pursuing the proceedings in the UK courts does not survive on account of the fact that a decree of divorce has in fact been granted by that court in favour of Defendant No. 1. In that view of the matter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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