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TMI Blog2020 (11) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... at Mathura Road in 1960 cannot be connected with any compensation received as a refugee by late Yashpal Sain in the absence of any document to substantiate payment and receipt of such compensation. Nor can the purchase of the property at Mathura Road by him be accepted as a restoration of ancestral property, when the existence of any such ancestral property at Lahore, Pakistan, is itself completely doubtful in the absence of cogent and clear disclosures in the plaint in this regard. There is no reason to presume that it was this compensation that he may have received that was invested in the property that was purchased at Mathura Road. Secondly, the said plot of land at Mathura Road was acquired by the Government in 1960, thus extinguishing all rights of late Yashpal Sain in that land. Though compensation for the same amounting to ₹14,101.88 paise was also awarded to him, such compensation did not take the colour of joint family funds. Even if this compensation was thereafter ploughed back into the purchase of a plot measuring 5494 sq yds in the Society, no conclusion can be drawn that this plot was also of the nature of an HUF property in which the appellant could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during the pendency of the appeal and will be referred to for convenience as D1 ), her sister Smt.Sarita Mullick (hereinafter referred to as D2 ) and her brother Sh.Sanjeev Sain (hereinafter referred to as D3 ). Partition was sought of property bearing number E-27, Block No. B-1 Extension, Mohan Co-operative Industrial Estate, New Delhi, ad measuring 1422.81 sq. yds (for short, suit property ). BACKGROUND FACTS 3. Briefly stated the case of the appellant was that the suit property belonged to her father late Yashpal Sain and as one of his legal heirs, she was entitled to 1/4th share in the said property, upon the demise of her father. The case set out in the plaint was that late Yashpal Sain had come to India from Lahore, Pakistan on Partition of the country and had set up a business called M/s. Asiatic Syndicate from which he had made his living. At the same time, he had received some compensation for property left in Pakistan with which he, along with one Sh. Luthra, purchased a plot of land bearing Khasra No.33/16/1, measuring 5 Bighas 10 Biswas situated in village Sahibabad, Mathura Road, Delhi, thus restoring part of the ancestral property left in Pakista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled their common written statement disputing all the averments of the appellant. They claimed that the suit property was the self-acquired property of D1 and did not form part of the estate left by late Yashpal Sain. In fact, according to them, Shri Yashpal Sain had not been successful in his numerous business ventures and was in dire financial straits when he fell sick and had no estate to leave for his legal heirs at the time of his demise on 17th October, 1963 and that the suit property being the absolute property of D1 was not available for partition. Though it was admitted that late Yashpal Sain had come along with his parents and family members to India after Partition, it was claimed that there was no joint family property left at Lahore nor was a new Hindu Undivided Family (HUF) created in India owning properties. It was from his earnings from the coal business commenced by him under the name and style of Oriental Coal Corporation, that late Yashpal Sain purchased a plot of land at Mathura Road measuring 5 Bighas 10 Biswas, which was subsequently acquired by the Delhi Government for the purposes of an industrial estate. 6. It was denied that the suit property had been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid position, the plaintiff cannot claim any right, title or interest in the Suit Property as her inheritance in the estate of her late father. At the time of the demise of the plaintiff s father, he had not acquired the Suit Property. It did not form a part of his estate and, therefore, the question of the plaintiff acquiring any share in the same by survivorship does not arise. 9. With regard to the plea of the appellant that D1 was the Karta of the joint family, the learned Single Judge observed that there was neither any averment nor any material to establish that Shri Yashpal Sain (father) was carrying on any ancestral business as the Karta of an HUF and rather he had set up a proprietorship firm in the name of M/s. Asiatic Syndicate. Finding no foundation for this claim of the appellant that her mother had also acted as the Karta of the family, the learned Single Judge found it to be plainly bereft of any merit . It was also observed that in the present case, there was no positive averment as to when the HUF was formed by D1 and a mere statement that D1 had held the property for the benefit of the family led nowhere. It was observed that the pleadings are insufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the suit property. The court had wrongly accepted the version of the respondents that the property was the self-acquired property of D1. It had also overlooked the important fact that false affidavits had been placed on the record by D1 regarding the sources of finance for the purchase of the suit property as the appellant had filed another affidavit disputing the claim of the D1 along with an application under Section 340 Cr.P.C.. 13. It is further stated in the grounds of appeal that the issue as framed was never a part of the pleadings and the objection to its framing as being outside the scope of the pleadings had been raised by appellant. Therefore, both, the framing of the preliminary issue, and the decision thereon, were erroneous and liable to be set aside. In any case, this question was a mixed question of fact and law and a disputed question could not be determined as a preliminary issue. The application of the law in the impugned judgement was also wrong as it is only when a person buys property with his own money in the name of another person without any intention to benefit such a person, that the transaction would be a benami transaction. But in the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joint family property in which the appellant had an equal share. 16. He urged, that D1 in her letter to the Society, after the death of her husband who was the member, had actually sought the allotment of the very same plot that had stood allotted to her husband. In other words, the allotment to the mother (D1) was only on account of the allotment originally made to the father. The learned counsel also submitted that the Bombay Cooperative Societies Act, 1925 ( Bombay Act ) was applicable to the allotment in the instant case, whereunder Section 27(1) provides that membership and interest in the membership in a society was inheritable. As the mother (D1) had sought the allotment only of the plot that had originally been allotted to late Yashpal Sain, she got the suit property only in the capacity as legal heir of the deceased member, and to which all the other legal heirs were also equally entitled to, and so, D1 could not have exclusive title to the suit property and the right of the appellant to 1/4th share had to be recognized and given to her. 17. The learned counsel submitted that it was because 2 children were minors and the appellant herself was only 18 years of age at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of ₹22 lacs and completion of other formalities, which could not be completed by him on account of his ill health. It could not be said that any actual allotment of land had taken place and even if Yashpal Sain at the time of his death had a membership that was not heritable as held in Swayam Sidha (supra) which has been correctly followed by the learned Single Judge. In any case, the allotment of the suit property to D1 could not be traced to the allotment made to late Yashpal Sain which had been cancelled. Several documents were pointed out to submit that the allotment to D1 was an independent allotment and was not a follow-through of the original allotment to late Yashpal Sain and that the suit property was the exclusive property of D1 and the family had always accepted that position. According to the learned senior counsel, the appellant cannot now withdraw all these admissions. Thus, it was prayed that the appeal be dismissed. DISCUSSION 20. We have heard the learned counsel for both sides and have carefully considered the material on record, and shall deal with the contentions one by one. 21. The purpose of a trial is no doubt to allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle qua the suit property are only in the name of D1. There can be no clearer case of a benami transaction. Under the Benami Act, even prior to its amendment, Section 4 prohibited any suit to enforce any right in respect of a property held benami against the person in whose name such property stood. The suit of the appellant, with the facts as set out by her, is completely barred by law. There is no error in the impugned judgement in respect to the framing of and the finding on the preliminary issue. 23. In order to get over this bar, the appellant has tried hard to bring her claim within the four corners of the pre-amendment Exceptions provided in Section 4 of the Benami Act, which reads as follows: 4. (1)--------- (2)---------- (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 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 trustee or towards whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are insufficient to establish the constitution of/existence of an HUF of late Yashpal. The pleadings are sparser in respect of an alleged HUF of which D1 was supposedly the Karta. The learned Single Judge could not but have concluded that there was neither any pleading establishing the existence of an HUF nor were there any documents reflecting on the same. Clearly the case of the appellant is not covered under Section 4(3)(a) of the Benami Act, as rightly held by the learned Single Judge. 26. The appellant has sought to claim that she was not asserting her rights as flowing from an HUF, but was claiming them as the legal heir of late Yashpal Sain under the Hindu Succession Act, 1956. But for that, she had to state in the plaint the details of the assets left behind by him. Instead she has pleaded a case that the suit property was joint family property, as late Yashpal Sain had purchased a plot at Mathura Road for setting up a factory, using funds received as refugee compensation, and it was only with the money received after that plot was acquired, that the plot in the Society was purchased. Therefore, the chain so developed could only lead to the conclusion that the suit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs were minor at that time and she herself was barely 18 years old, but still contributed her share in her father s assets towards the cost of the suit property. These facts were enough to establish that D1 was holding the suit property in a fiduciary capacity. 29. However, we are unable to accept this submission. Being a mother, D1 would have naturally assumed the role of the caretaker of her children including the appellant after the death of her husband. By setting out a ground for allotment of a plot to her, it cannot be assumed that D1 had entered into a fiduciary relationship with her children. Fiduciary relationships have legal connotation and are not equivalent to filial relationships. Fiduciary relationships or capacity involve the existence of a duty or obligation that is more than parental duties or obligations. 30. What constitutes fiduciary relationship has not been defined in the statutes. Recourse has been taken by the courts to the meanings given in dictionaries to deal with specific fact situations. The Supreme Court had occasion to discuss what constituted fiduciary relationship in CBSE vs Aditya Bandopadhyay, (2011) 8 SCC 497 while considering the relations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining bodies can be said to act in a fiduciary capacity, with reference to the students who participate in an examination, as a Government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words information available to a person in his fiduciary relationship are used in Section 8(1)(e) of the RTI Act in its normal and well-recognised sense, that is, to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary-a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a Director of a company with reference to a shareholder, an executor with reference to a legatee, a Receiver with reference to the parties to a lis, an employer with reference to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rule - A fiduciary owes undivided loyalty to the beneficiary, not to place himself in a position where his duty towards one person conflicts with a duty that he owes to another customer. A consequence of this duty is that a fiduciary must make available to a customer all the information that is relevant to the customer's affairs. (iv) Duty of confidentiality - A fiduciary must only use information obtained in confidence and must not use it for his own advantage, or for the benefit of another person. 32. The facts and circumstances surrounding the acquisition of the suit property by D1 and its subsequent use do not establish any of the above elements. A parent would be in a fiduciary relationship with an offspring only when the child lacks legal capacity due to minority or disability and the relationship discloses an absolute dependency on the parent for decision making. The appellant was 18 years old and legally major when the suit property was purchased. Her very case is that she consciously allowed her mother to take the property in her own name and voluntarily, even paid for it. There are no facts pleaded to show how D1 had ever established superior control over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative of the deceased member, if duly elected as a member of the society, in either case. For this provision to be attracted, it is clear that first of all the member who has died should have a membership in his name and should have in his lifetime nominated some person to inherit his share or interest or else, the committee must recognize the heir or the legal representative. In both events, such a person has to be elected as a member under the by-laws. Moreover, the interest or a share of the deceased member has to be transferred and there is no automatic inheritance of such share or interest by the legal heirs. 36. In the present case, the appellant has not shown the share certificate or membership number of late Yashpal Sain and nor has she relied on any such by-law of the Society to point out that D1 had been nominated or recognized by the committee as a legal heir. There is no document to show that D1 had been substituted as a member in the society in place of late Yashpal Sain. Nor is there any record of a transfer of the interest or share of late Yashpal Sain to his wife D1. Even if it were to be accepted that under the Bombay Act membership of a society was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of any such ancestral property at Lahore, Pakistan, is itself completely doubtful in the absence of cogent and clear disclosures in the plaint in this regard. There is no reason to presume that it was this compensation that he may have received that was invested in the property that was purchased at Mathura Road. Secondly, the said plot of land at Mathura Road was acquired by the Government in 1960, thus extinguishing all rights of late Yashpal Sain in that land. Though compensation for the same amounting to ₹14,101.88 paise was also awarded to him, such compensation did not take the colour of joint family funds. Even if this compensation was thereafter ploughed back into the purchase of a plot measuring 5494 sq yds in the Society, no conclusion can be drawn that this plot was also of the nature of an HUF property in which the appellant could stake a claim. Most importantly, however, is the fact that Yashpal Sain failed to complete the requisite formalities as a result of which no plot of land was in fact allotted to him. At the time of his death, no plot stood in his name to which the appellant could stake a claim as his legal heir. Thus on both the threads of argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty. The tenancy agreement with M/s. Bata India Limited, (executed on 4th March, 1988) also described D1 as the absolute owner of the suit property. A loan was raised in the name of D1 against mortgage of the suit property, even if the husband of the appellant had stood guarantor. Finally, the Partnership Deed (executed on 12th July, 1988) also describes D1 as the absolute owner of the suit property even though the partnership was between D1, the appellant and her brother (D3). When the partnership was dissolved, the land was not sought to be divided in the shares of the partners in the partnership business clearly establishing that it was the asset not of the partnership but of D1. All these documents were well within the knowledge of the appellant when they were executed between 1963 and 2011 and the admissions contained explicitly in them, as also disclosed in the conduct of all family members including the appellant and her husband, cannot be permitted to be withdrawn by her merely because it is now convenient to claim otherwise, after the filing of the present suit. Through the appellant s own conduct it is well proven that D1 was the absolute owner of the property and during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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