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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 ..... that the property will be vacated by the family member when called upon by the owner. To permit late Sardar Nirmal Singh or his family member to contend that the evidence of their possession in the suit property without payment of rent or licence fee would entitle them to raise a claim of ownership would be putting premium on a dishonest plea and would also be an abuse of the exception provided in proviso 2(ii) to Section 2 (9) (A) of the Benami Act. 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. This Court finds that the suit lacks a cause of action. Furthermore, the plea of ownership raised is barred under Section 4 of the Benami Act. The judgment of the Supreme Court in Pankaja [ 2004 (8) TMI 716 - SUPREME COURT] 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 that the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein, 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 ). List before the Taxing Officer/concerned Joint Registrar on 03.12.2024. - HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA For the Plaintiff Through: Mr. P.S. Bindra, Sr. Adv. with Mr. Asutosh Lohia, Mr. Rohit Saraswat, Mr. Gaurav Anand, Mr. Sharan Mehta and Mr. Karan Sharma, Advs. Ms. Deepanshi and Mr. Priyank Chauhan, Advocates for D-2 to D-5. Mr. Rajat Sharma and Mr. R.P.S. Rana, Advs. for D-6 For the Defendants Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Rakesh Kumar, Mr. Sunil, Advs. JUDGMENT MANMEET PRITAM SINGH ARORA, J: CS(OS) 77/2022 1. The captioned suit has been filed by the plaintiff seeking a mandatory injunction in respect of property bearing no. E-27, South Extension, Part-II, New Delhi ( suit property ) in favour of the plaintiff restraining the defendants from creating any third-party interest qua the suit property. The plaintiff further seeks a permanent injunction against the defendants restraining them from dispossessing the plaintiff from the suit property and interferi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiduciary capacity. He stated that in view of this averment the claim of the plaintiff of joint ownership is saved under Proviso (ii) to Section 2 (9) (A)(ii) of the Prohibition of Benami Property Transactions Act, 1988 ( Benami Act ). 5.3 He stated that the evidence of the aforesaid joint ownership is the fact that late Sardar Nirmal Singh and after him the plaintiff herein have remained in settled possession of the entire second floor alongwith terrace of the suit property. He stated that the house tax in respect of the second floor of the suit property was regularly paid by late Sardar Nirmal Singh and after his demise plaintiff has been clearing of all the dues. He stated that apart from the statutory taxes payment towards utilities including electricity and water bills have been regularly paid by the plaintiff. 5.4 He concedes that though in the plaint it is averred that rentals from the tenants on the ground floor and first floor of the suit property were being shared equally between plaintiff and defendant no. 1, however, no disclosure of the said income has been made in the Income Tax Returns filed by the late Sardar Nirmal Singh. He also concedes that the property is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mother, his widow and his daughter-defendant no. 1 herein. He stated that the plaintiff and his father late Sardar Nirmal Singh were aware of the said litigation at all times and never staked a claim in the suit property. 6.1 He stated that after the death of late Sh. Raghbir Singh and, the passing of the order of the High Court of Punjab and Haryana and the Supreme Court, the tenants in the suit property on ground floor and first floor attorned their tenancy in the favour of Smt. Har Kaur, the mother of late Sh. Raghbir Singh and filed their affidavits stating so before the High Court of Punjab and Haryana in RSA No. 1285/1982. He stated that in the said affidavits none of the tenants stated that late Sardar Nirmal Singh was their landlord or that they were paying any rentals to late Sardar Nirmal Singh. 6.2 He stated that in the year 2001 consequent upon the aforesaid judgments of the High Court of Punjab and Haryana and Supreme Court, the suit property stands mutated in the names of Smt. Har Kaur, Mrs. Neera and defendant no. 1, the three Class-I legal heirs of late Sh. Raghbir Singh. He relied upon the mutation letter dated 03.12.2001. He stated that the original title deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as of joint ownership of late Sardar Nirmal Singh and late Sh. Raghbir Singh. He stated that the amendment proposed shows the fraudulent nature of the claim and I.A. No. 2931/2024 deserves to be dismissed on this ground alone. 6.6 He stated that the plea in the plaint that late Sardar Nirmal Singh provided substantial funds for the sale consideration in 1965 towards the sale consideration of the suit property is a bald plea. He stated that no document in support of the said averment has been placed on record. 6.7 He stated that plaintiff is a licensee in the property and the said license has been duly cancelled by issuing a legal notice on 19.03.2022. He stated that the plaintiff has been called upon to vacate the second floor as well as terrace on or before 01.05.2022. He stated that since the plaintiff has failed to vacate the property the defendant no. 1 is entitled to seek his eviction and mesne profits w.e.f. 01.05.2022. He stated that defendant no. 1 has filed a separate suit for recovery of possession and mesne profits before this Court which is registered and numbered as CS(OS) 629/2023. He stated that the defendant is entitled to recover at the minimum Rs. 5 lakhs per mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness relationship with Mr. Raghbir Singh (s/ o. Shri Lachman Singh and Mrs. Har Kaur), who was also his first cousin. [Raghbir Singh was the cousin of the Nirmal Singh (chacha's son), and Lachman Singh and Har Kaur were Uncle Aunt] 6. That as stated above, Sardar Nirmal Singh and Mr. Raghbir Singh together carried on successful businesses in various countries including India, Philippine, Hong Kong etc. (lumber, fishing, money exchange) and made several investments together which gave good returns. Over a period of time they made a small fortune together leading to investments made jointly/in trust, in a fiduciary capacity with each other. 7. That in the collective wisdom of Sardar Nirrnal Singh and Mr. Raghbir Singh, investments were made in immoveable properties in India, including the suit property i.e. E-27, South Extension, Part-2, New Delhi besides some other investments in Jalandhar while some other investments were liquidated and divided during the lifetime of Raghbir and Nirmal Singh. The present action only concerns the suit property at South Extension, New Delhi. The said suit property (purchased in a fiduciary capacity in the year 1965), in the name of Mr. Raghbir Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of funds from plaintiff therein to defendant as well as existence of a fiduciary relationship, which evidence could be tested at the stage of trial. However, in the facts of the present case, there is no iota of evidence. 15. The plaintiff by merely parroting words of the statute and stringing vague sentences in the plaint cannot overcome the absolute bar of Section 4 of Benami Act. The plaint fails to give any material particulars of the joint business or joint funds or investments held by late Sh. Raghbir Singh and late Sardar Nirmal Singh and its utilization for the purchase of the suit property. The facts pleaded in the captioned plaint, if real, would necessarily be capable of evidencing through documents. The absence of documents and material particulars to support the vague averments in the plaint shows that no such facts exist. 16. In the opinion of this Court, the aforesaid paragraphs of the plaint are nothing but a clever drafting to create an illusion of a legal plea of fiduciary capacity for dishonestly invoking the exception of proviso (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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or . (Emphasis Supplied) 19. A perusal of the exceptions recognized under Section 2 (9) (A) of the Benami Act shows that the intent of the legislation is that whenever a party invokes the said four exceptions, the source of funds which the party asserting benami relies upon have to be documented in records so as to be capable of verification. For instance, exception (i) requires the party asserting benami to show that the consideration was paid by such a party out of the known sources. The phrase known sources would mean bank account and/or declared funds shown in the balance sheet of such a party which are documented with the authorities. Similarly, exception (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 (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recommends, the matter shall be examined in consultation with Ministry of Law and Justice. Although the intention of the provision is that the source of funds should be explained, ambiguity may arise on account of the present language of the provision. The matter will be examined further and, if necessary, an amendment will be moved with the approval of the competent authority. (Emphasis Supplied) 21. The proviso to Section 2 (9) (A) of the Benami Act which carves out an exception qua and between individuals has been clearly defined and is limited to the relationships recognized in exception (i), (iii) and (iv). The said exceptions cannot be invoked by individuals who are not related by kinship; for instance, between two friends. The intention of the legislature is to make these exceptions available within limited relations of an individual. 22. Exception (ii) under Section 2 (9) (A) of the Benami Act is intended to apply to transactions where one party is recognized under the law to be 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case as noted above there is absolutely no document to support the bald averment made in the plaint and therefore the reliance placed by the plaintiff on this judgment of Neeru Dhir in inapplicable. 26. Similarly, in Babita Pal (Supra) relied upon by the plaintiff, the Division Bench was considering a challenge to an order of the Single Judge allowing an application under Order VI Rule 17 CPC as well as dismissal of an application rejecting the application under Order VII Rule 11 CPC. In the facts of the said case, the Court was satisfied that the plaintiff therein had placed on record sufficient documentary evidence to invoke the exceptions to Section 4(3) of the unamended Benami Act and thus the suit could not be rejected under Order VII Rule 11 CPC. However, this is not the case in the present suit which is bereft of any particulars and documents. 27. In Poonam Jain (Supra), the plaintiff therein averred in the plaint that the subject property purchased in 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff and the late Sardar Nirmal Singh, which bear the address of the suit property. 32. In the considered opinion of this Court reliance placed by the plaintiff on the payment of property tax, utility bills and other documents to claim ownership of the suit property is misconceived. These documents are the proof of possession not of ownership. 33. Moreover, the ITRs of late Sardar Nirmal Singh placed on record does not declare any ownership rights in the suit property. Though, the plaintiff has averred in the plaint that a share in the rental income from the tenants of the suit property were received by late Sardar Nirmal Singh during his life time and by the plaintiff thereafter, however, the ITRs of late Sardar Nirmal Singh and the plaintiff placed on record categorically declared that they had NIL income under the head Income from House Property which shows that plaintiff and late Sardar Nirmal Singh were not deriving any rental income from the suit property or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.05.1940 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 W-32940 9. Sex: Male/Female : Male 10. Income for the previous year i.e. 1 4.2004 to 31.03.2005 11. Assessment Year : 2005-2006 12. Return Original or Revised : Original 13. Details 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession on the record and even if all the documents are admitted to be correct, the same do not evidence that late Sardar Nirmal Singh contributed any funds towards the purchase 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 suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in Ramrameshwari Devi Others v. Nirmala Devi (2011) 8 SCC 249 has opined that uncalled for litigation gets encouragement because Courts do not impose realistic 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court (Original Side) Rules, 2018 and the judgment of the Supreme Court in Ramrameshwari Devi (Supra), this Court deems it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter service of the notice dated 19.03.2022 by the plaintiff herein, the occupation is illegal and unauthorised. 63. In view 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) of the present suit is liable to be allowed. 71. Accordingly, the suit qua prayer clause (a) and (b) are hereby 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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