Valmiki J. Mehta, J. (Oral) - I.A. No. 20104/2014 (under Order 12, Rule 6 CPC by the plaintiff)
1. This is an application under Order 12, Rule 6 of the Code of Civil Procedure, 1908 (CPC) filed by the plaintiff in this suit for partition etc. The suit for partition is filed for the property of Smt. Gobind Kaur Sabharwal namely 12, Kohat Enclave, Pitampura, Delhi-34. Plaintiff is the daughter of Smt. Gobind Kaur Sabharwal. Defendant nos. 1 and 3 are the brothers of the plaintiff and also the children of Smt. Gobind Kaur Sabharwal. Defendant nos. 2 and 4 are also the sister and brother of the plaintiff and again children of Smt. Gobind Kaur Sabharwal.
2. In the plaint, it is pleaded that the mother Smt. Gobind Kaur Sabharwal died on 4.11.2002 and that the mother died leaving behind the registered Will dated 16.4.2001 whereby ⅕th share in the suit property at Kohat Enclave was given to each of the plaintiff and the four defendants who are the children of Smt. Gobind Kaur Sabharwal. The alternative case which is set up in the plaint vide para 8 is that even if there is no Will of the mother, the parties to the suit, being the children of late Smt. Gobind Kaur Sabharwal, they will inherit ⅕th right in the suit property at Kohat Enclave, Delhi.
3. The suit is essentially contested by defendant no. 3 who pleads that the suit property was purchased in the name of the mother from the funds which were provide by the defendant no. 3 on account of love and affection of the defendant no. 3 towards the mother. This aspect inter alia is stated in para 3 of the preliminary objections as also para 1 of the reply on merits of the written statement of defendant no. 3 and these paras read as under:-
Para 3 of preliminary objections"3
"3. That the plaintiff has not come to the Hon''ble Court with clean hands and has suppressed material facts while instituting the instant suit as such the plaintiff is not entitled to any relief either in equity or in law and the suit instituted by the plaintiff merits dismissal. As a matter of fact the suit property was acquired by answering defendant with funds contributed by him which out of love, affection and regard towards her and deceased mother of the answering defendant had no independent financial source to own and acquire the property in dispute. It is humbly submitted that thus the plaintiff has deliberately concealed the fact that since the plaintiff and defendant no. 2 had been well settled in their family life with their husbands and further, there has been substantial contribution made by defendant no. 3, in assisting the defendant no. 4 to acquire assets in his name at Indore, late Smt. Gobind Kaur Sabharwal and father of the parties had expressly communicated their desire to the legal heirs, the suit property shall remain in exclusive domain of defendant no. 3 who had been even taking care of their well and was extending support to Sardar Surjeet Singh Sabharwal arrayed as defendant no. 1 herein. Thus, the instant suit instituted by the plaintiff is a gross abuse of process of law and the plaintiff is not entitled to claim any right in the suit property.
Para 1 of reply on merits
1. That the contents of para 1 of the Plaint are not disputed to the extent that the suit property was acquired in the name of Smt. Gobind Kaur Sabharwal, mother of the parties to the instant suit. However, it is clarified that the aforesaid plot was purchased and further developed from the funds contributed by the defendant no. 3, which had been purchased in the name of his mother out of share respect and his life and affection. Since, the mother of the plaintiff was a house wife had no source of income to own and acquire the aforesaid plot and to raise construction thereon. But, since the answering defendant was into business, the funds were being raised and contributed by him to acquire the said property and to develop it as desired by his parents, in the name of Smt. Gobind Kaur Sabharwal, mother of the answering defendant. Thus, the averments made in para under reply are partly correct and substantially incorrect. It is vehemently denied that aforesaid Smt. Gobind Kaur Sabharwal, was in exclusive possession of the suit property. As submitted above, since the property was acquired by the answering defendant in the name of his mother thus, she had been residing in suit property along with family of the answering defendant. Further, since the defendant no. 1 was unmarried and was not keeping well as such, answering defendant had been shouldering responsibility to take care defendant no. 1 while residing in the said property."
(underlining added)
4. In this suit issues were framed on 12.12.2012 and which issues read as under:-
"1. Whether the suit is properly valued for the purpose of Court fee and jurisdiction?-OPP
2. Whether the suit property was purchased by defendant No. 3 in the name of late Smt. Govind Kaur, mother of the parties?- OPD-3
3. Whether the plaintiff is entitled to partition of the suit property?- OPP
4. Relief."
5. Evidence of the plaintiff was being recorded when the present application was filed. In the present application, it is pleaded that plea taken by the defendant no. 3, covered under issue no. 2, is barred under Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 (in short ''the Benami Act''), and with the aspect that there are no facts pleaded to bring the case within any one of the exceptions of existence of an HUF or mother being a trustee for the defendant no. 3 found in Section 4(3) of the Benami Act.
6. It is trite that the object of Order 12, Rule 6 CPC is to prevent parties to go through unnecessary trial if the suit can be disposed of on the basis of pleadings as they stand. No doubt powers under Order 12, Rule 6 CPC are discretionary, however, it has also been repeatedly held by the courts that unnecessary trial just because issues are framed causes harassment to the parties. Once the suit can be disposed of on the basis of admitted pleadings and other admissions, the suit ought to be disposed of by not putting the parties to the burden of a trial.
7. I have already reproduced above the pleadings of the defendant no. 3. All that these pleadings say is that defendant no. 3 contributed funds for the property which was purchased in the name of the mother on account of natural love and affection for the mother. A pleading of purchasing a property in the name of the mother on account of natural love and affection for the mother is not the pleading which can be taken as a plea of the suit property having been purchased in the name of the mother Smt. Gobind Kaur Sabharwal on account of fiduciary relationship of defendant no. 3 with the mother Smt. Gobind Kaur Sabharwal. The requirement of Section 4(3)(b) of the Benami Act is that there must be a specific pleading of the property being purchased in the name of a person as a trustee or the property being purchased on account of fiduciary relationship. Section 4 of the Benami Act reads as under:-
Section 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 owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply, -
(a) 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 coparcener''s 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."
8. Admittedly, in the present case, there is no plea which is set up of the existence of an HUF and this Court only has to examine as to whether the pleading of defendant no. 3 falls within the scope of Section 4(3)(b) of the Benami Act. In my opinion, mere pleading of love and affection towards the mother cannot be taken as a pleading of the property being purchased by the defendant no. 3 in the name of his mother as a trustee once Sections 81, 82 and 94 of the Indian Trusts Act, 1882 stand repealed by Section 7 of the Benami Act. Natural relationships no doubt have an element of trust, however, this natural element of trust on account of natural relationship is not what is the subject matter of Section 4(3)(b) of the Benami Act because this sub-Section specifically requires an averment/pleading with respect to the property being purchased as a trustee. Natural love and affection is not equivalent to possession of the property having been purchased as a trustee, and which is the only exception under Section 4(3)(b) of the Benami Act. The effect of repeal of certain provisions of the Indian Trusts Act for understating the meaning of trustee as found in Section 4(3)(b) of the Benami Act has been dealt by me in the judgment in the case of J.M. Kohli v. Madan Mohan Sahni and Anr in RFA No. 207/2012 decided on 07.05.2012, and the same applies to the issue at hand and the relevant paras 6 to 10 of the said judgment are reproduced as under:-
"6. The consequences of the Benami Transactions (Prohibition) Act, 1988 were harsh as they brought to an end the ownership rights of an actual owner against the benami owner. Before passing of the Benami Act, a de jure owner could also file a suit against de facto owner and thereby claim ownership of the property on the ground that ostensible owner was only a benamidar. The legal provisions which helped the plaintiff in such a suit prior to passing of the Benami Act were inter-alia the provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 and as per which provisions a benami owner was actually a trustee for the real owner. Section 7 of the Benami Act specifically repeals the aforesaid sections of the Indian Trusts Act, 1882 and also Section 66 of the CPC which had similar substance.
7. Section 4(3)(b) of the Benami Act, however, protected rights of a real owner where the person in whose name the property is held is a trustee or other person standing in the fiduciary capacity and the property is held for the benefit of other person, for whom the person in whose name the property is held is a trustee. Section 4(3)(b) of the Benami Act reads as under:-
"4. Prohibition of the right to recover property held benami. -
(3) Nothing in this section shall apply �
(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."
8. In a way, therefore, there may be some ostensible conflict between the provision of Section 4(3)(b) of the Benami Act and Section 7 of the same Act which repeals the provisions of the Indian Trusts Act, 1882, however, one has to read and interpret Section 4(3)(b) in a manner which is in accord with the legislative intention to bar claims against properties held as benami. The concept of trust was always inbuilt once a transaction was a benami transaction as the benamidar was the trustee for the real owner. But in spite of the concept of trust being inbuilt in benami transactions, the Benami Act provided that no rights could be asserted in a benami property by the actual/de jure owner.
Putting it differently, once Sections 81, 82 and 94 of the India Trusts Act, 1882 have been repealed, they cannot be brought in from the back door, so to say, by giving the same content contained in the repealed provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 to Section 4(3)(b) of the Benami Act. If we give such an interpretation, the entire Benami Act will fall and it will be as if the same has not been enacted. Therefore, Section 4(3)(b) which provides that the property which is held as a trustee or in a fiduciary capacity must be interpreted in the sense that the trustee or a person who is holding the property in a fiduciary capacity has either committed a fraud and got the property title in his name or is in furtherance of law holding property in his name however in the capacity of a trustee or in fiduciary capacity, although the real owner is somebody else. Repealed Sections 81, 82 and 94 of the Indian Trusts Act, 1882 read as under:-
"81. Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that the intend to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative.
82. Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.
Nothing in this session shall be deemed to affect the Code of Civil Procedure, section 317, or Act No. XI of 1859 (to improve the law relating to sales of land for arrears of revenue in the Lower Provinces under the Bengal Presidency), section 36.
94. In any case not coming within the scope of any of the proceeding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands."
9. Two of the examples where the Supreme Court has held the property to be held as a trustee in terms of Section 4(3)(b) of the Benami Act are the judgments in the cases of C. Gangacharan v. C. Narayanan, 2000 (1) SCC 459 and P.V. Sankara Kurup v. Leelavathy Nambiar, 1994(6) SCC 68. In the case of C. Gangacharan (supra), the Supreme Court has held that the property was held as a trustee as per Section 4(3)(b) of the Benami Act, and the person in whose name the property stood cannot take up a plea of the bar of Benami Act, inasmuch as, actually the owner had given moneys for the property to be purchased under his name, however, the moneys were in fraud utilised to get the property purchased in the name of defendants in that suit. In the case of P.V. Sankara Kurup (supra) also the obvious fraud which was perpetrated was that the property was to be purchased in the name of the plaintiff by his attorney holder and which the defendants did not do and instead got the property purchased directly in their name. In the case of P.V. Sankara Kurup (supra), the Supreme Court was dealing with Section 66 of CPC as it existed before its repeal by Section 7 of the Benami Act and in the facts of the case as stated above it was held that the purchaser had acted in fiduciary capacity as an agent and consequently the bar of the Benami Act would not apply. In the said judgment, the Supreme Court held that when the agent was employed to purchase the property on behalf of his principal, however does so in his own name, i.e. the agent?s name then upon conveyance or transfer of the property to the agent, he stands as a trustee for the principal.
10. Therefore, in certain cases where there is obvious breach of trust in purchasing the property in the name of a person, whereas it ought to have been purchased in the name of the principal or the real owner, Supreme Court has, to that limited extent, held that such actions are covered under Section 4(3)(b) of the Benami Act and such transactions are not hit by the Benami Act."
(underlining added)
9. Learned counsel for the defendant no. 3, and who is supported by defendant no. 1B has placed reliance upon the judgment of a learned Single Judge of this Court in the case of Shri Mahinder Singh v. Pardaman Singh AIR 1992 Delhi 357. The said judgment is squarely distinguishable on the facts because in the said case there was a specific pleading of existence of an HUF, and therefore, it was held that though the property was in the name of the mother Smt. Sahib Kaur, it was a disputed question of fact which required trial as to whether the property was or was not purchased from the HUF funds once pleadings with respect to existence of HUF were stated in detail and which pleadings in that suit are given in detail in paras 3 to 5 of the said judgment. The facts of each case are dependent on the pleadings of that case, and in the facts of the present case, when the pleading of the defendant no. 3 is seen, it is found that defendant no. 3 has not made the requisite pleading for the defence of the defendant no. 3 to fall within the exception of Section 4(3)(b) of the Benami Act.
10. Counsel for the defendant no. 3 sought to argue that during the course of trial defendant no. 3 will lead evidence to show that the property was purchased in the name of the mother as a trustee, however, no amount of evidence can be looked into on a plea which is not put forth in the pleading, and therefore, once the plea of the mother Smt. Gobind Kaur Sabharwal having the property purchased in the name of trustee is not found in the pleading, then no amount of evidence can be led by the defendant no. 3 or looked into by the Court of the property being in the name of the mother Smt. Gobind Kaur Sabharwal as a trustee.
11. In view of the above, I exercise my powers under Order 12, Rule 6 CPC. Since the defence of the defendant no. 3 does not fall within the exception of Section 4(3)(b) of the Benami Act, the defence will be a defence which will be barred by law as per Section 4(2) of the Benami Act. Once the defence is barred by law, there is no need to go into trial on this aspect because there cannot be a trial with respect to a plea/pleading which the law bars for being taken up.
12. In view of the above discussion, this application is allowed and the suit of the plaintiff for partition is decreed. Each of the plaintiff and the defendants will have ⅕th right in the suit property bearing no. 12, Kohat Enclave, Pitampura, Delhi-34. Since the defendant no. 1 had died during the pendency of the suit, the share of the branch of defendant no. 1 will fall to the legal heirs of defendant no. 1 in equal shares i.e ⅕th in the suit property falling to the share of Sh. S.Surjeet Singh Sabharwal/defendant no. 1 will fall equally to his legal heirs subject of course to any decision of any civil court which would decide if the share of defendant no. 1 has not to be divided equally between the legal heirs and will fall only to some or one of the legal heirs on account of any testamentary instrument or any other document etc as a result of which the share of defendant no. 1 would not be equally divided between the legal heirs and which issue is left open.
13. Let a preliminary decree accordingly be drawn up.
I.A is allowed and disposed of accordingly.
CS(OS) No. 2113/2010
14. Parties will now give their suggestions with respect to partitioning of the suit property or if the property is not capable for being partitioned, how the property is to be disposed of for the shares of the parties in the suit property to be divided among the parties.
15. List for further proceedings on 11th August, 2016.
