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TMI Blog2008 (8) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... /2, the Property was converted into freehold in the name of the plaintiff as the owner. 3. Mr. Prabhudayal Mahajan, husband of the plaintiff and father of defendant No. 1 expired in 1983 and the defendant No. 1 is one of their five children. 4. The plaintiff claims that she wants to sell the Property and has entered into an Agreement to Sell with a third party. She has also made allegations about ill-treatment at the hands of defendant Nos. 1 and 2. 5. The defendants in their common written statement have claimed that the Property was purchased out of funds provided by a Partnership Firm, M/s. Bhagmal Satyapal (hereinafter referred to as the Partnership Firm, for short) of which the defendant No. 1 and his father, Mr. Pradbhudayal Mahajan were partners along with some other parties who held 56% shares. It is also stated that the building on the said Property was constructed out of the funds provided from accounts of the said Partnership Firm. The defendant No. 1 also claims that he is entitled to and is owner of 72.1% share in the property on the basis that the funds were provided by the Partnership Firm in which he held 29% share, while his father had 15% share. It is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transaction by a person other than the purported owner of the property and secondly, the intention of the parties has to be such that the owner was only a facade for the real owner. Thus, the question arises whether funds for purchase of the Property and construction in 1968-70 had been paid by the defendant No. 1 and whether the transaction in question was benami. 11. The other question which arises for consideration is whether Sub section 3 to Section 4 of the Act will apply and therefore the bar and prohibition in Section 4 would not apply. The plea of benami is not available to the defendant No. 1 in view of the Act, unless conditions of subsection 3 to Section 4 are satisfied. Relevant provisions of the Act read as under: Sections 3 and 4 3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction. (2) Nothing in Sub-section (1) shall apply to - (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a - (i) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as under: (7) Seventhly, if in a suit, claim or action, a plea or defence based on benami is raised even after 19-5-1988 and the purchase is in the name of a wife or unmarried daughter, such a plea of benami is permissible and R. Rajagopal Reddy case will not come in the way merely because the plea is raised after 19- 5-1988. Such a plea if raised, will however have to be decided taking into account the statutory presumption laid down in Section 3(2). This is because the Act says that if the purchase is in the name of the wife or unmarried daughter, the prohibition in Section 3(1) will not apply. Section 3(2) is enacted as an exception to the provisions in the Act and does not depend for its interpretation on the question as to what extent Sections 4(1) and 4(2) are retrospective. (8) Eighthly, if the case falls within the exception in Section 4(3)(a) i.e. where the person in whose name the property is held is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family, or where as stated in Section 4(3)(b) the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pratima Ghosh and Ors. reported in AIR2008SC543 . In the said case there was a dispute with respect of the ownership of a property bought in the name of the wife, while the money was paid by the husband. Dispute arose between children of the said lady after the death of the lady. The son had opposed mutation in daughters' names on the ground that their father was the benami owner. The trial court rejected the said contention, but the High Court upheld the objection of the son. However the Supreme Court in appeal held the view of the trial court as the correct one. It was observed that the deceased lady had been treated as the owner of the property during the lifetime of her husband and that she had even paid a part of the consideration for the said property. Supreme Court also noted that there could be various reasons for a person to buy a property in the name of someone else and in all cases such transactions would not be in the nature of a Benami transaction. The Court further noticed that for a particular transaction to be called benami, credence has to be given to the surrounding circumstances and the intention of the parties at the time of the transaction. The Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 years old. It is an admitted case of the parties that the father of the defendant No. 1-late Mr. Pradbudayal Mahajan was originally a partner in the Partnership Firm and the defendant No. 1 joined the Partnership Firm in 1964. It is the case of the defendant no1 that he joined the business in 1964. (I may note here that, in his affidavit Mr. Shiv Nath Sharma, has stated that the defendant No. 1 had joined the partnership firm in 1966). Majority shares in the said Partnership Firm to the extent of 56% were held by outsiders who were also providing finance and raw material for carrying on business of the firm. In his affidavit in chief, the defendant No. 1 has stated as under: The property in question was acquired and built out of the funds provided by M/s. Bhagmal Satyapal, Katra Choban at Chandni Chowk, Delhi of whom the Deponent was the partner. 19. No document has been placed on record by the defendant No. 1 to establish flow of funds from the Partnership Firm and how and in what manner the payments made were treated in the books of the firm. The firm which had even outsiders as partners is not claimed to be the benami owner. The claim is made by Defendant No. 1. 20. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown as a property of the firm. In 1970s the plaintiff, being my mother, my father and I shifted to the house in question from Chandni Chowk. I shifted to the house in the capacity of the son of my parents. Vol : I was also a partner of the firm. 21. In the aforesaid statement of the defendant No. 1 has stated that the amount paid was treated as a loan by the Partnership Firm to the plaintiff. The said statement was made not once but twice in the aforesaid cross examination and has been underlined. It is also stated by the defendant No. 1 that subsequently the amount was written off, though at that time the outstanding amount was adjusted by debiting personal accounts of the partners i.e. the defendant No. 1 and his father. If it is a case of loan, claim for benami ownership, will certainly fail. If it is the case where the loan was written off subsequent to the purchase of property, the claim for benami ownership will again fail, unless it is proved that when loan was given it was with the intention to write it off and defendant-1 was the benami owner. If it is a case where capital accounts of the partners were adjusted, claim for benami ownership will depend upon the percentag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s located in a posh colony in South Delhi and the said area has seen astronomical increase in the land prices from late 1970s. The plea of the defendant No. 1, therefore, that he is unable to produce any document due to delay and time gap has to be considered with doubt and circumspection. Normal, prudence predicates that a person would have retained necessary papers of payment or adjustment from the Capital Account knowing well that he has four brothers and sisters. I also find that the Property was converted into freehold in 2001 and there is no allegation that the defendant No. 1 had made any payment at that time. No right was claimed by the defendant No. 1 at that time. 24. The plaintiff who is now in her 90s has in her affidavit by way of evidence stated that the Property was purchased out of her personal savings, deposits and money given by her husband. In her cross examination she has pointed out that she owned a property in Amritsar which was also sold. In her cross examination, even at the age of 90 years she has withstood and stuck to her original claim that the Property was not benami and was purchased out of her own funds and money given by her late husband. I may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment records. Learned Counsel for the defendants during the course of arguments had referred to handwritten letters including post cards written in and around 1992 and 1994. These letters refer to the intention and desire of the plaintiff to rent out the first floor to a suitable tenant but do not indicate whatsoever that the property was rented out to the defendant No. 1. This becomes clear from the language of the letters which are written in Hindi. Letter dated 14.9.92 (Exhb.DW-1/4) written to defendant No. 2-Sushma Mahajan. dukan ka season shuru ho gaya hoga. Upar ka kiraye par de dein. Jo jo kuch zaruri hai kara lein. Kiraya achha aa jayega. Upar verandah me kuch parah rahen hein to uppar ja sakte hein. Wahan baher hi hain. Barna sara uttar lein. Kafi jagah hein kiraya aa jaye to marammat kara sakte hein. Aage apki icha hein maine kya karna hain. Letter dated 4.5.94 (Exhb.DW-1/1) written to defendant No. 1. aasha hain makaan kirayen par char gaya hoga. Letter dated 7.11.92 (Exhb.DW-1/3) written to defendant No. 2 ...kya uppar aa gaye hain ya nahin. Kiraya diya hain ya nahin. Ab to aap free mehsus karte honge. Letter dated 18.5.1993 (Exhibit No. DW 1/5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain injunction, discretion is given to the plaintiff to value the relief and pay the court fees accordingly and a local amendment made in the law has provided that the court fees paid in such a suit shall be not less than Rs. 13. On the other hand, in suits for possession of land and houses, the court fee is to be paid on the market value as provided in Sub-clause (c) of Clause (v) of Section 7 of the Court Fees Act. In Sathapana Chettiar v. Ramanathan [1958]1SCR1021 , the Supreme Court laid down that the question of court fees must be considered in the light of the allegations made in the plaint and this decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. A Full Bench of the Circuit Bench of the Punjab High Court at Delhi in Jai Krishna Dass v. Babu Ram 1967 PLR 52, observed that it was settled law that for deciding the question relating to the amount of court fee payable on a plaint, not only have the averments in the plaint alone to be taken into account but the said allegations are to be assumed to be correct and the decision can neither depend on the maintainability of the suit as framed nor upon the assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e premises as occurred in Pooran Chand v. Malik Mukhbain Singh 1963 PLR 490. Herein, the plaintiff is itself a tenant in respect of a large godown and has shared 3/4th of the same, which the defendants deny, while the plaintiff claims that it has retained the remaining 1/4th portion exclusively with it. The plaintiff has alleged that it has revoked the license and as such the defendants are bound to restore its possession to the plaintiff. I am, Therefore, of the view that the suit of the plaintiff is not for recovery of possession, but for grant of mandatory injunction to vacate premises. In such a suit, the plaintiff cannot get a warrant for delivery of possession, as has been held by this Court in Sarup Singh's case. If the plaintiff is content to have the mandatory injunction, as prayed for by it, it is certainly open to it to pay court fees on a suit as framed for the said purpose. 31. I may note here that the plaintiff admittedly was in possession of the Property and it is an admitted case that the plaintiff and the defendant No. 1 were jointly using the Property. Therefore it cannot be said that the plaintiff must pay court fee on the market value of the entire proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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