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TMI Blog2024 (11) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... g them from dispossessing the plaintiff from the suit property and interfering/or obstructing with the plaintiff's possession, occupation and enjoyment of the suit property. 2. The plaintiff has also filed I.A. 2931/2024 seeking amendment of the plaint to incorporate an additional prayer for a decree of declaration declaring the plaintiff to be the sole and absolute owner of the suit property, which is pending adjudication. 3. The suit property comprises of a superstructure comprising ground floor, first floor, second floor and terrace on a plot admeasuring 250 sq. yds. The plaintiff asserts that he is in actual physical possession of the entire second floor along with terrace; and is in constructive possession of the remaining floors which are in the physical possession of the tenants. 4. The plaintiff is a permanent resident of Canada as well as naturalized Canadian citizen. Arguments on behalf of the plaintiff 5. Mr. Pawan Bindra, learned senior counsel for the plaintiff stated that though the title deed dated 19.03.1965 of the suit property is standing in the exclusive name of late Sh. Raghbir Singh, the father of defendant no. 1 herein; however, plaintiff claims joint own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns filed by the late Sardar Nirmal Singh. He also concedes that the property is not mutated in the name of late Sardar Nirmal Singh or his legal heirs. 5.5 He stated that though admittedly there are no documents on record to substantiate the pleas of contribution of funds by late Sardar Nirmal Singh towards purchase of the suit property or the construction thereon, he states that the averments made at paragraphs 6, 7 and 8 of the plaint are sufficient to maintain the suit and the said averments shall be proved at the stage of trial. 5.6 He fairly concedes that though in the plaint at para 7, it has been averred that there were several joint investments made in immovable properties throughout India, the plaintiff herein is not aware about the details or existence of any such other immovable properties jointly owned by late Sardar Nirmal Singh and late Sh. Raghbir Singh. He also concedes that the neither the plaintiff nor late Sardar Nirmal Singh have till date acknowledged the ownership of the legal heirs of late Sh. Raghbir Singh in any immovable property standing in the name of late Sardar Nirmal Singh. 5.7 The plaintiff has filed written submissions on 08.08.2024 and relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He relied upon the mutation letter dated 03.12.2001. He stated that the original title deed dated 19.03.1965 is in the custody of the defendant no. 1. He stated that the documents pertaining to Municipal Corporation of Delhi ('MCD') property tax department also record that late Sh. Raghbir Singh is the owner of the suit property. 6.3 He stated that the assertion in the plaint that late Sardar Nirmal Singh received share in the rentals recovered from the tenants on the ground floor and the first floor of the suit property is falsified from the income tax return of late Sardar Nirmal Singh placed on record by the plaintiff for the Assessment Year ('AY') 2001-02, wherein the declaration made by the assessee (Sh. Nirmal Singh) is that he has NIL income under the head 'Income from House Property'. He states similarly the income tax return of the plaintiff himself for AY 2005-06 declares that he as well as NIL income under the head 'Income from House Property'. 6.4 He stated that the plaintiff initially on 10.02.2022 persuaded this Court to grant an ex-parte ad-interim restraint order in his favour on the false plea that the suit property stands in the joint names of late Sardar Nirmal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 629/2023. He stated that the defendant is entitled to recover at the minimum Rs. 5 lakhs per month. He stated that defendant has placed on record registered lease deed dated 30.04.2022 of an adjoining property, qua a property constructed around the same time, wherein the ground floor has been let out at Rs. 9 lakhs per month with an annual escalation of 15%. 6.8 He relied upon Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (2020) 7 SCC 366., and Peeyush Aggarwal v. Sanjeev Bhavnani MANU/DE/1856/2013. The defendant has filed written submissions on 02.08.2024. Analysis and findings 7. This Court has considered the submissions of the learned senior counsel for the parties and perused the record. 8. The plaintiff admits that the title documents of the suit property i.e., sale deed dated 19.03.1965 records that late Sh. Raghbir Singh is the absolute owner of the suit property and that the MCD vide letter no. Tax/CZ 'A')/0l/1157 dated 03.12.2001 has mutated the said property in the names of the Class-I legal heirs of late Sh. Raghbir Singh i.e., late Smt. Har Kaur (since deceased), Smt. Neera (since deceased) and Ms. Gagan Singh (defendant no. 1 herein). 9. The plaintiff has fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tension, New Delhi. The said suit property (purchased in a fiduciary capacity in the year 1965), in the name of Mr. Raghbir Singh for the benefit of Sardar Nirmal Singh and his family with substantial contributions towards the purchase consideration by the father of the Plaintiff - Sardar Nirmal Singh. 8. As there was unbound love and mutual trust between Sardar Nirmal Singh and Mr. Raghbir Singh, there was no conflict or apprehension and the property continued to be held / maintained in the name of Mr. Raghbir Singh. All the family members of Mr. Raghbir Singh and Sardar Nirmal Singh were aware of the aforesaid arrangement and most of them are willing to testify to the said facts." (Emphasis Supplied) 12. In the afore pleaded facts, the stand of the plaintiff is that late Sh. Raghbir Singh was standing in the fiduciary capacity for the benefit of late Sardar Nirmal Singh and therefore, the plaintiff being the son of late Sardar Nirmal Singh is entitled to declaration of ownership of the suit property. Plaintiff relies upon the judgement of Supreme Court in the case of Pawan Kumar (Supra) and Marcel Martins (Supra). 13. Having considered the submissions of the Plaintiff and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so (ii) to Section 2 (9) (A) of the Benami Act. The aforesaid pleas in the plaint all read together fail to raise any presumption that late Sh. Raghbir Singh stood as a trustee qua Sardar Nirmal Singh with respect to the suit property. The said bald averments are not sufficient for invoking the said proviso of the Benami Act. The averments made in the plaint failed to show any fiduciary relationship between late Sh. Raghbir Singh and late Sardar Nirmal Singh. 17. In the absence of any material facts in the pleadings and credible documents, the plea of the plaintiff that Sh. Raghbir Singh was a person standing in the fiduciary capacity qua Sardar Nirmal Singh is bereft of particulars and it does not give rise to any cause of action in favour of the plaintiff herein so as to invoke proviso (ii) to Section 2 (9) (A) of the Benami Act. The untenability of the plea is also evident from the fact that though in the plaint, it has been pleaded that late Sardar Nirmal Singh and Sh. Raghbir Singh had similarly made several investments multiple immovable properties all over the country however, the plaintiff has been unable to place on record the details of any other immovable properties, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (iii) and (iv) requires the party asserting benami and invoking the said provisos to establish payment towards consideration from known sources. Exception (i), (iii) and (iv) as is evident pertains to individuals and the legislature expects the person, who claims to be the benami owner to show that he/she provided the fund from sources, which can be identified and attributed to the person. The expression known sources has been incorporated in the Benami Act vide amendment made to the Act in the year 2016. Prior to the amendment this expression-known sources was absent1, thus in pre-2016 litigation claims parties were permitted to lead circumstantial evidence to show that ownership rights were being exercised by the benamidar and this entire exercise was subjective. However, with the introduction with the phrase 'known sources' post 2016 in the Benami Act, the test has become objective and the party asserting benami ownership has to establish that the consideration for the immovable property was paid from known sources of the benamidar. The onus to prove that funds were provided to the title holder from known sources lies on the party asserting himself/herself to be benamidar. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing in a fiduciary capacity towards another person. This is evident from the illustrations included in the said exception. This exception (ii) in its existing form is intended to cover legal relationships such as partnership firm, a company, a trust, a depository and an executor. The exception recognizes that in these legal relationships the parties stand in a fiduciary capacity for each other. The fact that the exception is intended to apply to legal relationship is indicated from the fact that notifying any other legal relationship to be standing in a fiduciary capacity is a prerogative reserve to the Central Government alone. Thus, if the party invoking the exception cannot establish through record the existence of a legal relationship specified in this exception, it cannot invoke the said exception. It is well settled that exceptions in the statute are to be construed strictly. [CCE v. Hari Chand Shri Gopal (2011) 1 SCC 236. Para 29] 23. In the facts of this case, the plaintiff herein has not placed on record any document evidencing existence of a partnership firm between late Sardar Nirmal Singh and late Shri Raghbir Singh. The plaintiff has not proved the existence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of the mother had been paid for from the account funds of partnership firm. The sale consideration had been debited from the account of the partner. The said averment was substantiated with documents. In these facts the Single Judge at paragraph no. 55 of the said judgment held that the plaint could not be rejected under Order VII Rule 11 CPC and the matter would have to be tested at trial. The facts of Poonam Jain (Supra) are distinguishable and not applicable to the facts of the present case. 28. The legal position that follows from the judgements relied upon by the plaintiff is that, in the absence of documents evidencing the existence of a fiduciary relationship and existence of corpus of funds made available by the plaintiff from his/her known sources to defendant, the plaintiff cannot invoke proviso (ii) of Section 2 (9) (A) of the Benami Act and the claim of the plaintiff would be barred under Section 4 of the Benami Act. Plaintiff's claim of equal contribution towards construction of the suit property not established 29. The plaintiff has averred that late Sardar Nirmal Singh made investments and contributions during the raising of the construction on the plot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other property. 34. It is a matter of record that by the virtue of Section 140 of the Income Tax Act, 1961, the ITRs filed by an assessee contains a verification clause which declares that information given in the return is correct and true to their knowledge. To this effect, the verification in the ITR for AY 2001-02 of late Sardar Nirmal Singh and his declaration of 'NIL' for Income from house property is relevant and reads as under:- FORM No. 2D SARAL ITS-2D (INCOME TAX RETURN FORM FOR NON-CORPORATE ASSESSEES OTHER THAN PERSONS CLAMING EXEMPTION UNDER SECTION 11) [See Proviso to rule 12(1)(b)(iii) 1. NAME MR. NIRMAL SINGH (PROP. OF M/S DEOL INTERNATIONAL EXPORT TRADERS) 2. FATHER'S NAME LATE SHRI CHANAN SINGH 3. ADDRESS E-27, SOUTH EXTENSION, PART-11, NEW DELHI .................................................................................................... PIN110049.................TELEPHONE 4. Permanent Account Number AAZPS-5027N 5. Date Of Birth 01.05.1940 6. Individual/Hindu Undivided Family/Firm/Association of Personal/Local Authority INDIVIDUAL : 7. Resident/Non-Resident/Nor Ordinarily Resident: Resident 8. Ward Circle/Special Range WARD-27( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils of 'Bank Accounts. "Please tick (✓) the bank account, where you would like the amount of refund to be credited ..... 16. INCOME FROM HOUSE PROPERTY.............................................................................................................RS NIL ...... VERIFICATION I, PARAMJIT SINGH (name in full and in block letters) son/daughter of LATE SHRI NIRMAL SINGH solemnly declare that to the best of my acknowledge and belief the information given in this return and the annexures and statements accompanying it are correct complete and truly stated an din accordance with the provisions of Income Tax Act, 1961, in respect of income chargeable to income tax for the previous year relevant to the assessment year 2005-2006. Receipt No........................................Date................ Seal Signature of the receiving official Sd/- Date: 25.07.2005 Place: New Delhi 36. Thus, the plaintiff's claim of collecting rentals from tenants of ground floor and first floor is bogus. 37. The payment of house tax or utility bills by a party in possession is the incidence of possession and does not evidence ownership rights of the party. This obligation is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suit property and/or late Sardar Nirmal Singh ever considered the suit property as his own property. The reliance placed upon the payments of house tax receipts (w.e.f. 2005) and utility bills (w.e.f. 2000) even if admitted to be correct do not evidence any proof of ownership of late Sardar Nirmal Singh or his family members. The said payments relate to their possession, which is admitted on record. 44. In the facts of this case, upon perusal of the averments made in the plaint and the documents annexed with the plaint, this Court is of the considered opinion that the plaintiff has failed to prove that late Sh. Raghbir Singh held the suit property in a fiduciary capacity qua Sardar Nirmal Singh. 45. In light of the aforesaid facts, this Court finds that the suit lacks a cause of action. Furthermore, the plea of ownership raised through I.A. No. 2931/2024 is barred under Section 4 of the Benami Act. Therefore, the judgment of the Supreme Court in Pankaja (Supra), relied upon by the plaintiff in support of their amendment application, is misplaced. The ratio which flows form the said judgement is that an amendment of pleadings must not be disallowed merely on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istic costs. The relevant paragraph of the judgment read as under: "46. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex parte injunction orders or stay orders may not find encouragement. 47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab [(2000) 5 SCC 668 : 2001 SCC (Cri) 190] this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate to impose actual costs on the plaintiff and payable to the defendants. For the purpose of determining the actual cost incurred by the defendants to be paid by the plaintiff herein, the Taxing Officer of this Court is directed to take appropriate steps in accordance with the provisions of Delhi High Court (Original Side) Rules, 2018 ('Original Side Rules, 2018'). 52. List before the Taxing Officer/concerned Joint Registrar on 03.12.2024. CS(OS) 629/2023 and I.A. 7225/2024 53. This is a suit for possession, mesne profits, damages and permanent injunction filed by the plaintiff Ms. Gagan Singh, daughter of late Sh. Raghbir Singh against the defendant no. 1 i.e., Sh. Paramjit Singh, who is in possession of the second floor and terrace of the suit property. 54. Plaintiff has admittedly served legal notice dated 19.03.2022 upon defendant no. 1 calling upon him to vacate the portion occupied in suit property and putting him to notice that the licence granted to him to occupy the said portion stands revoked. The receipt of the notice is admitted by defendant no. 1. 55. The plaintiff has also filed I.A. No. 7225/2024 under Order XV-A CPC claiming deposit of arrears of mesne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the fact that the plaintiff in I.A. No. 7225/2024 has also sought award of mesne profits w.e.f. 01.05.2022, this Court is satisfied that the plaintiff has become entitled to award of mesne profits w.e.f. 01.05.2022. 64. With respect to the rate of mesne profits, the plaintiff has placed on record the registered lease deed dated 30.04.2022, which shows that in a similar property located in the same neighbourhood of South Extension for the ground floor admeasuring 862.5 sq. feet wherein the tenant is paying rent at Rs. 9 lakhs per month w.e.f. 01.05.2022. Since, it's a registered lease deed, the defendant no. 1 has fairly not disputed the contents of the said document. This Court has also perused the detailed reply filed by defendant no. 1 to I.A. 7225/2024 and in its para-wise reply at relevant para 19, the defendant no. 1 has failed to respond to the assertions made by the plaintiff with respect to the lease deed dated 30.04.2022 as well as the plaintiff's assessment that she is entitled to mesne profits at Rs. 5,00,000/- per month. 65. The plaintiff has placed on record with her plaint a copy of the registered lease deed dated 30.04.2022. The defendant no. 1 has failed to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y decreed. 72. The registry is directed to draw up a decree sheet in terms hereof allowing prayer clauses (a) and (b) of the present suit i.e., CS (OS) 629/2023. In view of this decree, I.A. 19910/2023 (application under Order XXXIX Rules 1 & 2 CPC) has become infructuous and is hereby disposed of. 73. It is clarified that the mesne profits awarded under I.A. 7225/2024 are an interim measure and shall remain subject to the final determination of mesne profits while deciding prayer clause (c) of the plaint during trial and the plaintiff may be entitled to higher mesne profits 01.05.2022 till 31.10.2024. 74. The present suit shall thus continue only qua prayer clause (c). 75. List before the learned Joint Registrar (J) for further proceedings on 06.12.2024. ------------------ Notes: 1. Section 4(3) of the Benami Act prior to its amendment in year 2016 read as under :- 4. Prohibition of the right to recover property held benami- (1) No 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 or against any other person shall lie by or on behalf of a person claiming to be the real ow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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