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TMI Blog2013 (7) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... du Family comprising of the said Shri Leelaram Jagatrai Advani as head of the family, his wife Smt. Lachmi Advani, their two sons i.e. the plaintiff and the defendant no. 1 and their daughter i.e. defendant no. 2; (c). that a two and a half storeyed building was constructed by Shri Leelaram Jagatrai Advani thereon immediately after purchasing the plot out of his self acquired own funds ; (d). that since construction aforesaid the family has been living therein jointly; the marriage of defendant no. 2 was performed by Shri Leelaram Jagatrai Advani in 1966 out of his own funds ; thereafter the defendant no. 2 and subsequently the plaintiff were also married; (e). the ground floor was let out by Shri Leelaram Jagatrai Advani to a tenant; (f). that after the intestate death of Shri Leelaram Jagatrai Advani in 1976 the defendant no. 1 started living on the ground floor and the plaintiff on the first floor of the house along with the mother, with the barsati floor let out to a tenant by the mother of the parties; (g). barsati floor was also got vacated by the mother and was used by the children of the family for studying purpose; (h). that the mother also died i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration claimed nor has the appropriate Court fees been paid thereon; (ii). that the defendant no. 1 had sent a legal notice dated 16th September, 2003 asking the plaintiff to vacate the first floor, which was duly delivered and the suit claim is barred by time; (iii). that there was no Joint Hindu Family though the family was living jointly; (iv). the defendant no. 1 was gainfully employed in Federation of Associations of Small Industries of India in the year 1960 as a Stenographer and was in the year 1964 when the plot was acquired, drawing a salary of about ₹ 400/- per month; (v). the plot aforesaid was allotted to the defendant no. 1 by the DDA under the LIG Scheme; (vi). that the defendant no. 1 deposited ₹ 300/- in cash with the DDA on 7th October, 1963 and upon allotment vide letter dated 13th January, 1964 DDA asked the defendant no. 1 to deposit further amount of ₹ 2,590/- for execution of the Lease Deed; the defendant no. 1 deposited the said amount on 30th March, 1964 and on 3rd July, 1964 deposited ₹ 149/- towards charges for Stamp Duty and receipts for all the said amounts are in the name of defendant no. 1 and on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd pleading that it was the father of the parties who had applied to the DDA in the name of the defendant no. 1 and had paid all the amounts therefore and the challans of deposit filed by the defendant no. 1 with his written statement are in the handwriting of the father; (c) pleading that all the records are in the name of the defendant no. 1 because the application for allotment and the allotment were in the name of the defendant no. 1; (d) pleading that the defendant no. 1 had himself executed an affidavit dated 23rd December, 1974 affirming and declaring that he was a member of the Joint Hindu Family headed by father also resident of the suit property and that his father had purchased the said plot and raised construction thereon and which affidavit also bears the signature of the father of the parties and the defendant no. 1 in admission/denial has falsely denied his signature and signatures of the father thereon; (e) pleading that at the time of allotment and construction all the parties were unmarried and the decisions were taken and all the funds managed by the father only and the father may have taken loans against the LIC policies in the name of the defendant no. 1; (f) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst floor and common use of the barsati floor and of delivery of keys of the first floor lying deposited in this Court and for this Court to on its own compare the signatures purportedly of the defendant no. 1 on the affidavit dated 23rd December, 1974 and the admitted signatures of the defendant no. 1 on the Court record and for sending of the said documents to a recognized Government Forensic Science Laboratory for comparison were heard on 21st May, 2013 when the counsel for the plaintiff was asked to address also on the aspect of maintainability of the suit in view of the bar of the Benami Transactions (Prohibition) Act, 1988 (Benami Act) (though no such plea was taken by the defendant no. 1) and arguments on the said aspect also heard and order reserved. 7. I will first take up the aspect of the maintainability of the suit in view of the bar of the Benami Act in as much as if the suit were to be found to be not maintainable, the question of adjudicating the applications aforesaid would not arise. 8. The claim of the plaintiff in the suit, in a nutshell, is that the property aforesaid was acquired and built by the father of the parties from his self acquired funds but in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is held is a coparcener of the said Hindu undivided family; and, (III). that the property is held by the defendant no. 1 for the benefit of the coparceners in the family. 14. Similarly, for the claim of the plaintiff to fall in the exception provided in clause (b) supra (and invoking which the plea of benami was held to be not applicable, in Marcel Martins supra) the plaintiff has to plead/prove/establish:- (i). that the defendant no. 1 in whose name the property is held is a trustee of or was otherwise standing in a fiduciary capacity earlier of/towards the father and now of/towards the plaintiff and the defendant no. 2; and, (ii). the property was held by the defendant no. 1 earlier for the benefit of the father and now for the benefit of the plaintiff and the defendant no. 2 for whom he is the trustee or towards whom he stands in such fiduciary capacity. 15. The bar imposed by the Benami Act is invariably found to be got rid of by pleading a case to be under either of the aforesaid two exceptions. The question which arises for consideration is, whether such a plea has been made by the plaintiff and even if be so, whether a mere plea of the case fallin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hardevi Advani (daughter). (Her name prior to marriage was Hardevi Advani which was changed by her husband and in-laws after marriage to Manju Keswani). (d) Mr. Ramesh Advani (Son) Unfortunately in 1990, Smt. Lachmi Advani also died intestate, leaving behind her the following legal heirs:- (a) Mr. Hiro Advani (Son) (b) Mrs. Manju Keswani Hardevi Advani (daughter). (Her name prior to marriage was Hardevi Advani which was changed by her husband and in-laws after marriage to Manju Keswani). (c) Mr. Ramesh Advani (Son) All the parties are joint owners of the suit property, the same being their parental property, to the extent of 1/3rd undivided share in the suit property. That the suit property is a joint property of the parties wherein the plaintiff and defendant No. 1 and 2 are joint owners having one-third undivided share each. Since the suit property is a joint property purchased and constructed by the father of the parties, but purchased in the name of defendant no. 1 being the eldest son, the father of the parties had even submitted an affidavit to the authorities in this regard and the said affidavit was duly signed and verified by the defendant no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carved out in Section 4(3)(a). 19. Though it is pleaded that the family at the time of acquisition of the plot was a joint Hindu family but it is nowhere pleaded that the plot was acquired or construction raised thereon from the funds of the family. Rather the plea is of the plot having been acquired and the construction being raised from the self acquired funds of the father and the father exercising the rights over the property as owner and the plaintiff and the two defendants becoming the 1/3rd owners each of the property on the intestate demise of their father and mother and being their only class I heirs under the Hindu Succession Act. 20. Mulla's commentary on Hindu Law, 18th Edition under para 214 thereof explains the genesis of coparcenary as under:- A coparcenary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or great-grandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the self-acquired property of A during A's lifetime, but on A's death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the plaint or something illusory has been projected and that after so reading, vexatious plaints have to be thrown out. In fact during the course of hearing it was repeatedly asked from the counsel for the plaintiff whether there was anything else to show that there was a coparcenary in fact in existence at any time; whether any Income Tax returns thereof were filed; whether there was any other joint property of the parties earlier or now. The counsel candidly admitted that there is none. 24. Merely because a person at the time of acquisition of the property may be residing with his parents and siblings and merely because the sale consideration has flown from the parents or from some other siblings is not enough to bring a case within the exception aforesaid to the prohibition contained in Benami Act. It cannot be lost sight of that benami transactions prevalent earlier, generally were between family members and hardly ever in the name of absolute strangers, and if pleas as in the present case were to be held to be falling within the exception clause, would negate the legislative intent of prohibiting actions to enforce rights in respect of property held benami. 25. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et Singh Anand Vs. Sarabit Singh Anand where rejection of the plaint on the ground of claim therein being barred by the Benami Act was denied on the existence in the plaint of the plea of existence of a joint family and which was held to imply Hindu Undivided Family, observing that though the case of the plaintiff therein was weak and not likely to succeed but holding the same to be no ground for ousting the plaint under Order VII Rule 11 of the CPC. However in that case there were averments in the plaint of the property being held for the benefit of coparcerners in the family and the defendant holding the property as a trustee for the benefit of all the family members and which as aforesaid are lacking in the present case. I therefore do not consider myself bound by the said judgment. Mention in this regard may also be made of another Division Bench of this Court in Babita Pal Vs. Jagdish Bansal 196 (2013) DLT 792 where also a plea for summary dismissal of the suit for reason of the claim therein being barred by the Benami Act was rejected for the reason that the real import of the transaction and the relation between the parties could be determined only after trial. However, I do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commission issued at the instance of the plaintiff is of the first floor though containing the belongings of the plaintiff being not in use for the last several years. The Commissioner, as directed, has also taken photographs and a perusal whereof also supports the said report. In any case no objections against the said report have been filed. Moreover, once it is held that the plaintiff has no right in the property and was living therein as a licencee of the defendant no. 1 and once it is found that the plaintiff on the date of institution of the suit was not living in the property, mere finding of the goods and articles belonging to the plaintiff in the said premises would not entitle the plaintiff to be put back into possession. Reference in this regard may be made to Section 65 of the Indian Easement Act, 1882 which provides the remedy of dispossessed licensee as for compensation only and not for repossession. I have had an occasion to discuss this aspect in detail in a recent judgment in Keventer Agro Limited Vs. Kalyan Vyapar Pvt. Ltd. and need is thus not felt to reiterate the same here. The suit is accordingly dismissed as barred by the provisions of the Benami Act. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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