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TMI Blog2006 (5) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16th May, 1997, 19th May, 1997 and 30th June, 1997. 3. The plaintiffs subsequently amended the plaint and two other Defendants were added, namely, Sajit Bakshi (Defendant No. 2) who, it is alleged, in connivance with Reeta Wahi (Defendant No. 1) attempted to take forcible possession of the suit property. Punjab National Bank (Defendant No. 3) was also added as a party because a company called Vaishali International Management and Resources Ltd. (VIMAR) of which the plaintiff is a major shareholder had mortgaged the suit property with it. The title deeds of the suit property are said to be lying with Defendant No. 3 and it is alleged that Defendant No. 1 is trying to obtain the title deeds from Defendant No. 3 so as to induct Defendant No. 2 into the suit property. 4. In view of the changed circumstances, two additional prayers were also made by the plaintiff, namely, for a permanent injunction restraining Defendant No. 3 from releasing the title deeds of the suit property and a decree of possession in favor of the plaintiff and against Defendant No. 2. 5. Defendant No. 1 has filed a detailed written statement and has also made a counter claim against the plaintiff. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These two suits (Suit No. 2140 of 1987 and Suit No. 204 of 1983) were subsequently compromised and, as prayed in the compromise application, a decree of specific performance was granted in favor of Defendant No. 1. 13. It appears that one Smt. Bharti Rani Singh had also filed a suit for specific performance of an agreement in respect of the suit property. Those proceedings were finally disposed of (in appeal) on 6th May, 1997 leaving a clear title for purchase of the leasehold rights in the suit property. 14. The plaintiff says that in the meanwhile, he transferred a sum of ₹ 1.6 lakhs to the account of Defendant No. 1 in 1996. He also says that his account in VIMAR was debited to some extent and that amount was also transferred to the account of Defendant No. 1. These amounts were utilized to pay the balance consideration to the vendors for purchase of the 3/5th portion of the suit property. Thereafter sale deeds were executed in favor of Defendant No. 1 as a nominee of the plaintiff in respect of these portions of the suit property on 16th May, 1997, 19th May, 1997 and 30th June, 1997 (whose cancellation is prayed for by the plaintiff). 15. From March, 1997 onwards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty 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. 20. The admitted position is that the entire sale consideration flowed from the plaintiff, initially as a loan to Defendant No. 1, and that was later on converted into a gift. The admitted position also is that the entire documentation, including the sale deeds, has been written up in the name of Defendant No. 1 as the vendee and that is why the plaintiff has prayed for cancellation of the sale deeds dated 16th May, 1997, 19th May, 1997 and 30th June, 1997. 21. Section 2(a) of the Act defines a benami transaction in the following words: 2. Definitions. In this Act, unless the context otherwise requires, - (a)Benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person; (b) and (c) xxx xxx xxx A simple reading of the plaint in the context of this definition leaves no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his niece, in whose favor the sale deed is to be executed and registered as transferee owner of 2/5th share of the said property. Possession of the property that is 2/5th share of No. 13, Kautilya Marg, New Delhi, was given to the said nominee on 20.10.1978. It is important to note that Defendant No. 1 is not described simply as a nominee of the plaintiff but the intention is made clear that she is to be a transferee owner. There can be no doubt that the plaintiff treated Defendant No. 1 as his nominee at least from October, 1978 onwards, if not from 1983-84. The position was the same in Suit No. 2140 of 1987 in respect of another share in the suit property. That suit was compromised on 15th December, 1987 on the same terms as Suit No. 204 of 1983. 25. The above documents clearly go to show that the actual purchaser of the suit property was the plaintiff and Defendant No. 1 was his nominee for the purpose of executing the sale deed. But, is that enough for the purposes of Section 4(3)(b) of the Act? I don't think so because the Act requires the existence of a fiduciary relationship and not merely that of a nominee. Although there is no cut and dried distinction between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was executed, Defendant No. 1 was to hold the suit property as a nominee and in a fiduciary capacity for the benefit of the plaintiffs and who were to reside in the said property Paragraph 11 of the amended plaint refers to transfer of money in 1997 to protect and pay for the suit property and transfer of money in 1999 to convert the suit property from leasehold to freehold. Paragraph 12 of the amended plaint refers to an agreement dated 15th December, 1999 between the wife of the plaintiff and Defendant No. 1 in which it is stated: As long as I and my husband are living you shall not disturb the facilities, which we have established in the premises nor shall you dispose off the house 13, Kautilya Marg, or rent it out without our concurrence. Then in paragraph 13 of the amended plaint, it is averred that Defendant No. 1 gladly accepted the condition about disposal and renting out of the suit property. Finally, in paragraph 15 of the amended plaint it is averred: That since the plaintiffs Nos. 1 and 2 have paid for the entire property, the defendant No. 1 as a nominee and by virtue of the fiduciary capacity does not have the right, title or interest to put clouds on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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