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2018 (9) TMI 1939 - HC - Indian LawsShare in ancestral property - suit property - Prohibition of Benami Property Transactions Act, 1988 has been amended vide the Benami Transaction (Prohibition) Amendment Act, 2016 - HELD THAT:- Under the amended Act, the definition of a benami transaction has been changed and the new definition is contained in Section 2(9) of the amended Act and the present case does not fall under the ambit of the definition of a "benami transaction", as prescribed under Section 2(9) of the Act and is squarely covered by proviso (iii) to the said definition - The present case thus is not that of a "benami transaction" and hence bar of Section 4 of the Act is not attracted in the present case. There is no legal impediment which can non-suit the plaintiff at the threshold, as sought by the defendants, and the plaintiff may lead evidence to prove Late Sh.Joginder Nath Kapur was the de facto owner of the suit property. Qua limitation the learned counsel for the defendants pleaded that Mr.Joginder Nath Kapur expired on 15.12.1987; the plaintiff got married in 1976 and para 8 of the plaint reveal the plaintiff was well aware the property which Mr.Joginder Nath Kapur purchased in the name of his wife was for the benefit of all the children and was in fact the property of late Mr.Joginder Nath Kapur. Admittedly late Mr.Joginder Nath Kapur during his lifetime did not file any suit against his wife seeking a declaration the property belongs to him. Admittedly the plaintiff also did not file such suit till after three years of the death of Mr.Joginder Nath Kapur. Merely by assertion of possession the Plaintiff cannot avoid payment of Court fee in a suit for partition. The married daughter once moves to her matrimonial home after marriage cannot claim that contrary to the customs she is keeping possession of the suit property owned by her mother - In the present case the Plaintiff herself in para no.11 of the plaint has averred the defendant no.1 and 2 live in the suit property and are currently in possession of the title documents. It is also averred defendant no.2 continuous to derive income from the suit property and has acquired other properties from the proceeds and earnings of the said income from the suit property. As per Section 7 (iv) (c) of the Court fee Act, 1870 where the plaintiff filed a suit for declaratory decree with consequential relief, advalorem Court fee is payable. Thus for above prayers of declaration, the plaintiff is liable to pay advalorem Court fee as per Section 7 (iv) (c) of the Court fee Act - the present suit is a suit for declaration with consequential relief and the judgment of the Apex Court would be of no help to the plaintiff as incase the suit would have been only qua the declaration of a document as illegal without any further relief viz. possession, the said judgment would have been applicable. Application disposed off.
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