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TMI Blog2023 (6) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the plaintiff empathetically submitted that the partnership arrangement can be formed even orally and it is not necessary that it should be only by way of written documents. As rightly contended by defendants even in the plaint averments, the plea regarding the oral partnership is very vague and bereft of material particulars. The plaintiff has not pleaded the date, place etc., in which the oral agreement was entered into. There is no plea in whose presence the oral arrangement between the parties was entered into. Even during trial, the plaintiff has not examined any independent witnesses in support of the oral partnership agreement. Therefore, except the interested testimony of PW.1, there is no other acceptable evidence available on record to suggest oral partnership agreement. In such circumstances, we cannot come to a conclusion that there was an oral partnership agreement between the plaintiff and the contesting defendants . Main legal plea raised by the contesting defendants is that the plaintiff is not entitled to maintain a suit prayer that he is a co-owner of the suit property on the ground that he contributed financially for purchase of the suit pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate for Mr.E.Prabu for M/s.R.Munusamy JUDGMENT The plaintiff laid a suit for declaration as the co-owner to the extent of 21,000 Sq.ft of the suit property and for consequential relief of partition and separate possession of plaintiff's share in the suit property. The plaintiff also sought for the relief of permanent injunction restraining the defendants from encumbering the suit property or changing the physical features of the suit property by putting up construction. 2. Plaint Averments: The suit property along with larger extent of property was originally owned by one Mohamed Sahib and Syed Fathima. After their demise, one Kulsum Bi filed a suit for partition in O.S.No.2331 of 1981 on the file of the First Additional Judge, City Civil Court, Chennai, seeking preliminary decree for partition in respect of the suit property and other properties. In the said suit, a preliminary decree was passed on 31.01.1985 based on compromise between the parties thereto. Thereafter, an interim final decree was passed on 02.05.1988, wherein, the suit properties were allotted to the parties except three items of the suit property including the present suit property. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as deemed to be in joint possession of the suit property as the property was acquired out of the plaintiff's contribution for the proposed joint venture. The said property having been purchased for and on behalf of the promoters of the proposed joint venture, the plaintiff, the defendants 1, 9 and 10 were deemed to be in joint possession of the suit property. It was further averred that the proposed joint venture turned into non-viable one and hence, the plaintiff called upon the defendants 1, 9 and 10 to constitute a firm for development of the property and transfer the suit property for the future venture. The defendants delayed the constitution of the firm and attempted to sell the property behind the back of the plaintiff and consequently the proposed joint venture got frustrated. Therefore, the plaintiff is entitled to proportionate land, namely 21,000 sq.ft, out of 85,949 sq.ft acquired through the investment made by the plaintiff. Therefore, the plaintiff was constrained to file a suit for the above said relief. Averments found in the written statement of the defendants 1,9 and 10: 3.1. The defendants 1, 9 and 10 resisted the suit on the ground that even assumi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The said payment made by the plaintiff was only towards the partial discharge of his liability to the 9th defendant. 3.5. It was also averred by the plaintiff that the defendants under the pretext of helping the first defendant to enable her to purchase the shares of three left out co-owners purchased the said shares in their name. When 9th defendant demanded the return of the balance money paid to him, he invented a false story of alleged proposed joint venture and came up with this suit. The allegation in the plaint as if the plaintiff was in joint possession of the suit property with defendants 1, 9 and 10 was denied. It was also averred by the defendants that the suit claim would not fall within the purview of the commercial dispute and the plaintiff had deliberately abused the process of the Court by filing the suit before the Commercial Division. The plaintiff admittedly, is not a co-owner and he has no cause of action to maintain the present prayer. 4. Defendants 1, 9 and 10 alone filed a written statement and contested the suit. The plaintiff gave up the defendants 3 and 10 by making an endorsement to that effect on 20.08.2020 and consequently the suit was dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Counsel submitted that the defence raised by the defendants that payment made by the plaintiff were only for repayment of the loan advanced by the 9th defendant could not be believed. 7.3. The learned Senior Counsel by referring to Ex.P17 affidavit filed by the 9th defendant before the Returning Officer for election when he had contested the election in the year 2014 submitted that in the affidavit sworn by the 9th defendant, he mentioned that there was no personal loan advanced/paid to any person or entity. Therefore, the defence raised by the defendants, as if they paid loan to the plaintiff and he repaid the same by making payments on various dates got falsified. 7.4. The learned senior counsel submitted that the property was purchased in the name of first defendant out of the contribution made by the plaintiff only to facilitate quick acquisition of the shares of other co-owners. The first defendant acted for the benefit of the plaintiff in fiduciary capacity and purchased the properties in her name and therefore comes under the exception recognized by Prohibition of Benami Property Transaction Act, 1988. The learned counsel further submitted that the subject matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venture are all very vague and self serving statements. He further submitted that the plaint does not say the date of oral agreement, the place in which the oral agreement was entered into and the witnesses of the said agreement. 8.2. The learned senior counsel also submitted that PW.1 in his cross examination admitted that there was no partnership agreement with the defendants. In such circumstances, the arguments advanced on behalf of the plaintiff, as if there was an oral partnership agreement between the parties cannot be accepted. The learned Senior Counsel further submitted that the plaintiff failed to prove that he was in joint possession of the suit property by taking this Court to the admission made by PW.1 that the suit property belonged to the family of the first defendant and that he is not in possession of the same. Hence, it is the contention of the learned senior counsel that the suit prayer for declaration and partition is under valued on the basis of the false plea that the plaintiff was in joint possession of the suit property. The learned senior counsel also by taking this Court to the evidence of PW.1 submitted that PW.1 admitted that he had received Rs. 1.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) S.K. Parthasarathy Naidu And ... vs K. Rama Naidu And 7 Others reported in 2002- 1 LW 41; (iii) Dwarkadas Khetan Co., Bombay v. Commissioner Of Income Tax, Bombay City, Bombay reported in 1956 SCC Online Bom 44; 12. This Court has no quarrel over the legal submission made by the learned senior counsel appearing for the plaintiff that there can be a valid partnership by oral arrangements. In the case on hand, the plaintiff pleaded oral partnership and the same was denied by the defendants. Therefore, it is incumbent on the plaintiff to prove oral partnership arrangement. In order to prove the same, the plaintiff examined himself as PW.1. However, the plaintiff failed to examine any independent witnesses in support of the plea of oral partnership. As rightly contended by the learned senior counsel for the defendants even in the plaint averments, the plea regarding the oral partnership is very vague and bereft of material particulars. The plaintiff has not pleaded the date, place etc., in which the oral agreement was entered into. There is no plea in whose presence the oral arrangement between the parties was entered into. Even during trial, the plaintiff has not examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation. For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force, (i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts produced by the plaintiff in the name of Arifa, Zubaidha and Mumtaj for the value of Rs. 46,99,800/- are mentioned in Ex.P6. Likewise, the demand drafts produced by the plaintiff in the name of H.Maimoonakawaja, H.Balkhees Bi, H.Zainab and H.Mariyam for the value of Rs. 46,99,000/- are mentioned in Ex.P7. Therefore, there is some evidence available on record atleast to show that the plaintiff contributed to the extent of Rs. 96,38,266/- to enable the first defendant to acquire land with an extent of 9168 sq.ft. However, there is no evidence available on record to support the case of the plaintiff that he contributed Rs. 2,16,38,266/- to enable the first defendant purchased the suit property to the extent of 21,000 sq.ft. 16. In any event, even assuming the suit property was purchased by first defendant out of the contribution made by the plaintiff, it is the case of the plaintiff that it was purchased in the name of the first defendant for the benefit of future business entity to be formed by plaintiff and the defendants 1, 9 and 10. Therefore, it can only be treated as property purchased in the name of first defendant for the benefit of plaintiff and the contesting defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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