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TMI Blog2012 (1) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... . Santosh Malik could not bring any action seeking partition and possession of property bearing No.B-6, Jangpura Extension, New Delhi-110044. 3. The legal heirs of Santosh Malik, who are litigating, on the death of Santosh Malik urged at the hearing of the appeal through their counsel that in view of Clause (a) of Sub-Section (3) of Section 4 of the Benami Transactions (Prohibition) Act 1988, the suit would be maintainable. Additionally, counsel urged that the defence could not be looked into while deciding on the issue: Whether the plaint disclosed a cause of action? 4. We thus proceed our journey by noting the pleadings in the plaint. 5. The plaintiff, Santosh Malik pleaded in the plaint, that she is the daughter of late Dr. Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther assured the plaintiff that she will get her due share in the said house and she will be one of the equal co-owners of the same. 12. That the plaintiff told her mother that she can do so only after discussing the matter with her husband, who may give some money to her for this purpose. She also specifically stated that her husband may agree on the solemn assurance by the family members that the plaintiff will have her due equal share in the property being taken from the Govt. of India. Accordingly, the plaintiff and her husband discussed the entire matter with other family members and it was agreed by all the family members and solemn assurance was given that in view of substantial help by the plaintiff at that crucial time, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she will get her due share, otherwise, she will have her due share with possession of the said property. Without her contribution the house could not have been purchased in 1950. Since the financial position of the family was very weak and Shri Maharaj Krishan remained abroad for a long period of time, the plaintiff's share in the house was not given to her, though assurances were given to her that as and when Shri Maharaj Krishan came to India, she will get her due share. Besides, Shri Maharaj Krishan defendant No. 1's wife and son remained ill intermittently for a long period of time from 1960 and she had hardly any savings to settle plaintiff's share in the house by giving her one third market price of the house. Bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted to defendant No. 1 as per the decision of the family. 9. Who took the decision: All the family members or only some? Where was the decision taken? On what day, month or year was the decision taken? Nothing has been pleaded. The averments in para 9 are as vague as vagueness can be. 10. She claims, as per pleadings in para 11 of the plaint, that her mother late Smt.Parvati Devi, approached her to contribute the maximum amount which she could afford to save the family from ruin, so that a joint family house could be purchased and was assured that she i.e. Santosh Malik would get her due share in the said house and will be an equal co- owner thereof. She pleads, in para 12, that she discussed the matter with her husband and, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , since she admits that her father died on January 18, 1959 and her mother had pre-deceased her father, she could have only claimed a share through her father because as of the year 1959 she could not be a co-parcener in the joint family properties. 12. As the plaint is to be read, the foundation of the claim is that she paid ₹ 900/- at the asking of her mother and this sum was used to make the initial deposit when the house in question was purchased by her brother. As highlighted by us herein above, on what day, month or year was the decision taken, reference whereof has been made in para 9 of the plaint, have not been stated. Similarly, the decision of the family after the parents died that each child would be the co- owner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled between the parties as required by the Code of Civil Procedure. Indeed, Rule 2 of Order 6 of the Code of Civil Procedure enjoins upon a party to ensure that its pleadings contained a statement in the concise form of material facts. We do not find any material facts so pleaded. 15. That apart, the suit, as drafted is based upon title on the plea that having contributed ₹ 900/- when the property was purchased, and the contribution being on an express assurance that the plaintiff would have a right in the property and thus we concur with the reasoning of the learned Single Judge that the suit is barred by virtue of Sub-Section 1 of Section 4 of the Benami Transactions (Prohibition) Act 1988. The plea urged that the bar impose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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