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TMI Blog2021 (3) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 and 13.05.2016 respectively passed by the learned Civil Judge (Senior Division), Berhampur in C.S. No. 149 of 2012. The courts below by the above judgments and decrees have non-suited the Plaintiffs (Appellants). The suit filed by the Appellants as the Plaintiffs thus has been dismissed by the courts below. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs' case is that their predecessor-in-interest namely Padma Charan Bahinipati and one Lingaraj Bahinipati i.e. the Defendant are two brothers being son of Raghunath Bahinipati. Padma Charan Bahinipati is elder to Lingaraj Bahinipati. Upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. In the backdrop of the case projected by the Plaintiffs' the both oral and documentary evidence, as have been tendered by them being appreciated, the trial court has answered the most crucial issue as to the ownership of the property against the Plaintiffs. It has been categorically held that the provision of sub-section (1) of section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to 'the Act') stands on the way of entertaining the suit for enforcement of any right as real owners over the suit property said to be held benami against the defendant. In saying so, the trial court has thus negated the contention raised by the Plaintiffs that the transaction in hand under Ext.1 falls within the exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in upon the base of the pleadings?" 6. The case of the Plaintiffs is that Padma Charan being the elder brother had purchased the suit property in the name of his younger brother i.e. Defendant in the year 1971. At that time Padma Charan was a Govt. servant under the Department of Forest of the State of Odisha. It is their specific case that since Padma Charan Bahinipati was a Govt. servant, he did not wish to purchase the property in his own name and instead obtained the purchase in the name of his brother who was then residing in United Kingdom. Save and except the reason as above assigned nothing more is treated. The facts those are deducible from the above pleadings are that Padma Charan had paid the consideration money from his own poc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." It may be stated here that by the Amendment Act 43 of 2016 with effect from 01.11.2016, above sub-section (3) with the clauses (a) and (b) to section 4 has been omitted. The position has been well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party. It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.10.2016 is clear that normal relationship through blood or akin relationship as such have no play therein and the party in order to have his case within that saving fold has to plead all those facts and circumstances including their inter se dealings stretching over a period and also prove those by leading clear, cogent and acceptable evidence of such nature that the court would record the finding that the person in whose name the property is held stood in a fiduciary capacity. In the absence of any foundation in the pleadings as to all such facts and circumstances and their proof by clear, cogent and acceptable evidence so as to bring the transaction within the fold of the exception as it was there in clause (b) of sub-section 3 of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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