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TMI Blog2015 (2) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the matter is required. In the present case, as the defendant is merely a licensee, the suit filed by the plaintiff for mandatory injunction is maintainable in view of peculiar facts and circumstances. Thus, the objection of the defendant is rejected. It is a rule of law of evidence, which is also known as the best evidence rule that in case a written document is available, no oral evidence can be lead in that regard. In the present case, in the face of a document in writing, the pleas of the defendant cannot be permitted to be taken and are barred by the provision of Section 92 of the Evidence Act. As defendant has no right or interest in the suit property. It appears to the Court that the contention raised by the defendant is an afterthought and the defence raised by the defendant is moonshine. Therefore, trial in the matter is not required in view of registered titles in favour of the plaintiff for the last thirty years which are unchallenged by the defendant. On the contrary, the defendant has failed to enforce an alleged oral family settlement which is denied by the plaintiff and the materials placed on record do not give any indication to establish the pleas ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the suit property bearing No.205, AGCR Enclave, Delhi-110092 by virtue of various title documents such as Gift Deed dated 3rd September, 1984 duly registered at the office of the Registrar executed by late Sh. K.B. Midha son of late Sh. Hans Raj, who was residing at 65/74, Rohtak Road, New Delhi-110005. 3. The suit property is in possession of the plaintiff which consists of ground floor, first floor, second floor and open terrace. The plaintiff is regularly paying the house tax of the said property to the local authority and under the record of the mutation the name of the plaintiff is recorded. The site plan of the built up property is annexed with the present plaint. 4. The defendant is the brother of the husband of the plaintiff (who is the sister-in-law of the defendant). The defendant is under the possession of first, second and mezzanine floor which is located between first and second floor of the said property. The defendant used the said property for his residential purpose. The plaintiff says that due to relation she has allowed the defendant to use the said portion for residential purposes without any consideration and the status of the defendant in the said prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, D.B.G. Market, in the name of Sh. Ashok Gulati and Sh. Amrit Gulati from the funds of the partnership firm. Later on as the business flourished one more firm was opened in the year 1984-85 by the name of Sunshine Footwear which started functioning from 6, D.B. Gupta Market, locality as Sunshine Footwears. While Sunshine Sandle Works continued to be run by Mr. Krishan Lal Gulati and Ashok Kumar Gulati, the day to day affairs of Sunshine Footwears was being looked after by Amrit Gulati and Anil Gulati. The creation of new firm and retirement of aforesaid partners namely Amrit Gulati and Anil Gulati from M/s Sunshine Sandle Works was an internal arrangement and family continued to remain joint and the business was also joint. The power of total control and important decisions however remained with late Krishan Lal Gulati in respect of both the firms, being the head of family and founder of both the firms. Ashok Gulati and Amrit Gulati were married prior to 1984 and Anil Gulati got married in 1998. Krishan Lal Gulati with his wife, all his children two daughters in law and grand children used to live at Subhash Nagar in Delhi House No.1/60 in a joint family arrangement, being owned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Sun Shine Sales Corpn. and mezzanine floor remained with the defendant from where the defendant started his own business in the name and style of Like Shoes. At the same time understanding was reached among the family members and it was decided and agreed that Amrit Gulati through his wife shall remain the owner of the ground floor of the suit property apart from the plot at Rohini and defendant shall be the owner of the first floor and second floor of the suit property. It was decided that eldest son Sh. Ashok Gulati will be the owner of the flat at Mayapuri. It was also decided that after the demise of the parents of the defendant the property at Subhash Nagar shall go to Ashok Gulati and it was the fair distribution of the properties created and earned from joint funds, amongst the three sons and as such the defendant is the owner of the property bearing No.205, AGCR Enclave, Delhi except the ground floor. The plaintiff is under obligation to honour the agreement. It is worthwhile to note that the plaintiff is a house wife with having no independent source of income and could not have paid the consideration amount to her father for getting the Gift Deed in her favour nor di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine Footwears was being looked after by Amrit Gulati and Anil Gulati. It is further denied that the creation of new firm and retirement of aforesaid partners namely Amrit Gulati and Anil Gulati from M/s. Sunshine Sandle Works was an internal arrangement and family continued to remain joint and the business was also joint. It is denied that the power of total control and important decisions however, remained with Late Krishan Lal Gulati in respect of both the firms, be being the head of family and founder of both the firms. It is also denied that Ashok Gulati and Amrit Gulati were married prior to 1984 and Anil Gulati got married in 1998. It is denied that Krishan Lal Gulati with his wife, all his children two daughters-in-law and grand children used to live at Subhash Nagar in Delhi House No. 1/60 in a Joint Family arrangement, house being owned by Krishan Lal Gulati. It is also denied that exactly at about this time it came to be known that the father of the plaintiff herein Late K.B Midha, who was also the father in law of the elder brother of the defendant herein, was looking for a buyer to sell a plot which he had acquired in the AGCR Enclave, Delhi. It is denied that according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also denied that in the year 1991 division of business took place in the family and by virtue of which the defendant and Amrit Gulati started their business and created their own separate firm under the sole proprietorship firm from the same premises i.e. 6, D.B.G. Market, Karol Bagh, New Delhi. It is also denied that the ground floor was retained by Sh. Amrit Gulati who started his firm in the name and style of Sun Shine Sales Corporation and mezzanine floor was remained with the defendant from where the defendant started his own business in the name and style of Like Shoes. It is also denied that at the same time understanding was reached among the family members and it was decided and agreed that Amrit Gulati through his wife Shall remain the owner of the ground floor of the suit property spare from the plot at Rohini and defendant shall be the owner of the first floor and second floor of the suit property. It is also denied that it was decided that eldest son Shri Ashok Gulati will be the owner of the flat at Mayapuri. It is also denied that after the demise of the parents of the defendant the property of Subhash Nagar shall go to Ashok Gulati and it was the fair distributio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication or its own motion without determination of any other question between the parties make such order or give such judgment as it may think fit having regard to such admission. 10. It is apparent that the said defence taken by the defendant is barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. The operative part of the law reads as under : 4. Prohibition of the right to recover property held benami - (1) ... (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. 11. In the case of Peeyush Aggarwal vs. Sanjeev Bhavnani 2014 (140) DRJ 511, it was observed that: 27. The defendant as Managing Director of VIL cannot be said to have been standing in a fiduciary capacity to the plaintiff who was the Chairman of the said company and could at best be said to be standing in a fiduciary capacity to the company i.e. VIL. Similarly, I am unable to see as to how the defendant can be said to be a trustee of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82, there cannot be the same concept of trusteeship or fiduciary capacity as was the position prior to 1988; and v) that after the repeal of Sections 81 and 82, it is only those instances of fiduciary capacity, such as property of a partnership firm held in the name of one of the partners or property which Mr. X wanted Mr. Y to buy in the name of Mr. X but in violation of that instruction, Mr. Y buying the property in his own name can Y be said to be standing in a fiduciary capacity and as a trustee of X, that the exemption under Section 4(3)(b) of the Benami Act would apply. 30. I find the aforesaid view to have been followed in D.N. Kalia Vs. R.N. Kalia 178 (2011) DLT 294 where also, the defence of the plaintiff being only the Benami owner and holding the property in trust for the defendant and other family members, was held to be not tenable in view of the Benami Act and the exception contained in Section 4(3)(b) held to be not available. 31. I yet further find another Single Judge in Pushpa Kanwar Vs. Urmil Wadhawan MANU/DE/2993/2009 to have also followed the dicta aforesaid in Anil Bhasin and held that upon repeal by the Benami Act of Sections 81 and 82 of the Trus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, the Supreme Court in the said judgment held that in determining whether a relationship is based on trust or confidence relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence of a fiduciary relationship can be deduced in a given case. 35. In the present case, the pleas of the plaintiff fall in the genre of fantastic . The prevalent market practice is of giving stock options to the employees and not of parking‟ the stocks with the employees. 36. Some other obvious inconsistencies going to the root of the matter are also found in the case of the plaintiff. Though the plaintiff has approached this Court with himself being the beneficial owner of the shares, with the shares in the name of Omkam and BGR being transferred in the name of the defendant for consideration paid by the plaintiff and on which plea it should be the plaintiff who should have been entitled to the dividend with respect to the said shares, but the plea of the plaintiff in para 17 of the plaint is of the defendant having agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to be not maintainable, the question of adjudicating the applications aforesaid would not arise. 9. 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 the name of the defendant no.1 and the family then was a Joint Hindu Family. 10. The Benami Act was enacted to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto. Section 2(a) thereof defines benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 4 thereof bars any suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held and at the instance of a person claiming to be the real owner of such property. 11. In the light of the aforesaid provisions, it was enquired from the counsel for the plaintiff whether not the claim of the plaintiff, of the subject property being transferred by the DDA to the name of the defendant no.1 for consideration paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 falling in exceptions aforesaid is enough for the case to be set down for trial and which, experience of life shows generally drags on for several years, putting a clog on the property and thereby depriving the recorded owner thereof from exercising rights with respect thereto and often compelling him/her to settle with the claimants, negating the enactment of Benami Act and allowing litigation before the Courts to be used as a tool of coercion or oppression. x x x 19 The exception in Section 4(3)(a) to the applicability of the Benami Act uses the term Hindu Undivided Family‟ as well as coparcener‟. The Supreme Court in State of Maharashtra Vs. Narayan Rao (1985) 2 SCC 321 has held that a joint family may consist of female members also but a Hindu coparcenary is however a narrower body than the joint family; only male members who acquire by birth interest in the joint or coparcenary pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or greatgrandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the selfacquired 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 in the property by reason of his birth, and the property inherited by B from his father A becomes ancestral property in his (B's) hands, and B and C are coparceners as regards the property. If B and C continue joint, and a son D is born to C, he enters the coparcenary by the mere fact of his birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener. 22. The Supreme Court in Makhan Singh Vs. Kulwant Singh (2007) 10 SCC 602 held that there is no presumption of a property, being joint family property, only on account of existence of a joint Hindu family and the person who asserts so has to prove that there was a nucleus with which joint family property could be acquired. Thus from the mere plea of existence of a joint Hindu family at the time of acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 26. I have considered whether the long admitted possession at least from the year 1967 till 2006-2007 i.e. of nearly 40 years of plaintiff of the premises can be said to raise any presumption of jointness or of the intent but I am unable to hold so. Such possession has to be seen in the context of Indian conditions where siblings especially brothers living together, even after their marriages, in a house belonging to one of them, is not uncommon. 27. As far exception (b) supra is concerned, it was imperative for the plaintiff to plead a relationship of trust between the defendant no.1 and earlier the father and/or that of defendant no.1 was standing in a fiduciary capacity and holding the property for the benefit of the father. There are no such pleas i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore 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 not consider myself bound thereby also for the reason discussed in detail in my recent pronouncement dated 04.07.2013 in CS(OS) No.1026/2010 titled Peeyush Aggarwal Vs. Sanjeev Bhavnani and for which reason it is not deemed necessary to burden this judgment therewith. 30. That brings me to the only document in this regard filed by the defendant no.1 and qua which application aforesaid has also been filed by the plaintiff for examination of the signatures by this Court and/or for reference of the signatures to an expert. The counsel for the plaintiff in this regard has also relied on paras 36 to 39 of Ajit Savant Majagavi Vs. State of Karnataka AIR 1997 SC 3255. 31. In the said affidavit purportedly of the defendant n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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. MANU/DE/1479/2013 and need is thus not felt to reiterate the same here. 38. The suit is accordingly dismissed as barred by the provisions of the Benami Act. Resultantly all pending applications are also dismissed; however in the circumstances no costs. Decree sheet be drawn up. 13. In the case of P.E. Lyall vs. Balwant Singh, 187 (2012) DLT 164, the Court held as under : Though, the impugned judgment of the trial Court is a detailed judgment running into 26 pages and deciding all the issues in the two suits, I need not go into the details on any of these aspects inasmuch as the only issue which is required to be determined in this appeal, and as argued before me, was with respect to the plea of benami i.e the appellant claimed that respondent/plaintiff was not a real owner of the property because the funds for the purchase of prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a benamidar and not the real owner and that the father-late Sh. Jiven Singh was the owner of the property are hit by provision of Section 4(2) of the Act. Since the defence itself is barred, nothing else is required to be looked into. 14. Having gone through the pleadings of the parties and the entire gamut of the case, it is admitted position that the father of the plaintiff has gifted the suit property in favour of the plaintiff. The defendant has not disputed the fact that it is a registered document. In nutshell, the case of the defendant is that there was an oral family settlement by virtue of which the suit property has come into the favour of the defendant. Admittedly, the Gift Deed is registered Gift Deed which is dated 3rd September, 1984. On the basis of the registered Gift Deed, a conveyance deed dated 12th October, 2000 was also registered in favour of the plaintiff undisputedly. Defendant did not take any steps for cancellation of the said documents neither any proceedings are pending in this regard. 15. Defendant has not initiated any proceedings i.e. suit for implementation of an oral family settlement or any other claim raised by the defendant in the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the contract required by law to be reduced in the form of a document have been proved according to Section 91, no evidence of any oral agreement between the parties for the purpose of contradicting, varying, adding to, or subtracting from its terms shall be admitted; though there are exceptions to both the said provisions but the same have not been invoked by the respondents/plaintiffs or their counsel and the case is not found to be falling in any of the exceptions; (d) it is also the settled position in law (See Chandrakant Shankarrao Machale Vs. Parubai Bhairu Mohite (2008) 6 SCC 745 and S. Saktivel Vs. M. Venugopal Pillai (2000) 7 SCC 104) that the terms of a registered document can be varied/altered by a registered document only; in Raval Co. Vs. K.G. Ramachandran (1974) 1 SCC 424 it was specifically held that any variation of rent reserved by a registered lease deed must be made by another registered instrument; (b) In the case of Roop Kumar v. Mohan Thedani (2003) 6 SCC 595, it was held as follows: Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Order 12 Rule 6 CPC : (a) In Rameshwar Prasad Gupta Vs. Rajinder Kumar Gupta and Ors., IAs 6852/2011 and 13665/2009 in CS (OS) No. 2362/2008, Decided On: 18.07.2011, it was observed that: The law on admission is well settled by this Court in various decisions, some of them are as under: (a) Umang Puri v. Lt. Col. Pramode Chandra Puri 165 (2009) DLT 245 wherein it was held that the admissions need not be made expressly in the pleadings and even on constructive admissions, the Court can proceed to pass a decree in favour of the Plaintiff under Order 12 Rule 6, CPC. (b) National Textile Corporation Ltd. and Anr. v. Ashval Vaderaa 167 (2010) DLT 602 wherein it was held that admission can be found even in the statement of parties recorded in the court and admissions may also be gleaned from vague and unspecific denials. (c) Madan Lal Kaushik v. Shree Yog mayaji Temple and Ors. 178 (2011) DLT 398 wherein it was held that if the defense is irreconcilable rendering it impossible well nigh (almost) impossible for the Defendant to succeed, suit out to be decreed which was the objective of amendment of Code of Civil Procedure brought in 1976. (b) In Uttam Singh Duggal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved. If a plea is not valid and tenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable court time. 18. In view of the aforesaid reasons, it is clear that defendant has no right or interest in the suit property. It appears to the Court that the contention raised by the defendant is an afterthought and the defence raised by the defendant is moonshine. Therefore, trial in the matter is not required in view of registered titles in favour of the plaintiff for the last thirty years which are unchallenged by the defendant. On the contrary, the defendant has failed to enforce an alleged oral family settlement which is denied by the plaintiff and the materials placed on record do not give any indication to establish the pleas raised by the defendant. Therefore, a decree is liable to be passed in favour of the plaintiff and against the defendant in view of the settle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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