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TMI Blog2018 (10) TMI 1823X X X X Extracts X X X X X X X X Extracts X X X X ..... perty. Resultantly, the First Appellate Court passed the decree in favour of the respondent / plaintiff and against the appellant / defendant as sought. 2. This appeal came up first before this Court on 28th September, 2016 when, on the contention of the counsel for the appellant / defendant that the defence of the appellant / defendant was of the appellant / defendant having bought the property from his own monies and in the name of the respondent / plaintiff on account of the respondent / plaintiff being the mother of the appellant / defendant and that the case was covered by Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988, notice of the appeal was ordered to be issued, execution of the judgment and decree stayed and the trial court record requisitioned. The appeal was thereafter adjourned from time to time, mostly on the request of the counsel for the appellant / defendant. The appeal was listed last before this Court on 27th September, 2018 when the advocate for the appellant / defendant again did not appear and sent a request for passover. Observing, that the appellant / defendant, after taking ex parte stay of judgment and decree impugned and without even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,-- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) 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 capacity. 7. The counsel for the appellant / defendant contends that the present case falls under Section 4(3)(b) of the Act because the respondent / plaintiff, in whose name the property is held, is a trustee or other person standing in a fiduciary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry states that he has not studied any precedents in this regard and is unable to cite any. 14. I am unable to agree. A mother is not a trustee of her major son and does not stand in a fiduciary capacity to her major son. Such notions, held by the appellant / defendant or his counsel, are not supported by any law. Merely because a major son chooses to purchase the property in the name of his mother would not allow him to seek exemption from the societal malice which was sought to be curbed by enactment of the Benami Law and Section 4 whereof was intended to curb such litigation which consumes a lot of time of the Courts. An inkling in this regard can be had from Section 3(2)(a) and 3(2)(b) of the Act as enacted in 1988 as under: 3. Prohibition of benami transactions. (2) Nothing in sub-section (1) shall apply to (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a (i) depository as registered owner under sub-section (1) of section 10 of the Depositories Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is only the purchase of property in the name of wife or unmarried daughter which is exempted from the prohibition and even purchase in the name of son or married daughter has not been given that status and that once the legislature has expressly conferred exemption in the name of the wife or unmarried daughter, it is to be deemed that such restricted exclusion cannot be extended or made applicable to others. Reliance was also placed on Pushpa Kanwar Vs. Urmil Wadhawan 2009 SCC OnLine Del 3761 and on D.N. Kalia Vs. R.N. Kalia (2011) 178 DLT 294 wherein the plea, of the plaintiff therein being only the Benami owner and holding the property in trust for the defendant and other family members, was held to be not tenable. 16. The matter is placed beyond any pale of doubt by Aarti Sabharwal Vs. Jitender Singh Chopra (2009) 162 DLT 38 holding that prohibition of the Benami Law will apply, if the property is purchased in the name of the mother and by Ram Prakash Kathuria Vs. Ved Prakash Kathuria (2007) 5 AD (Del) 694 where the plea of the son, that property was purchased by him out of his own funds, though in the name of the mother, was held to be hit by prohibition contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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