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2018 (10) TMI 1823 - HC - Benami PropertyBenami Transactions - whether mother is a trustee of her major son ? - appellant / defendant contends that the present case falls under Section 4(3)(b) of the Act because the respondent / plaintiff, in whose name the property is held, is a trustee or other person standing in a fiduciary capacity vis--vis the appellant / defendant and the property is held by the respondent / plaintiff for the benefit of another person for whom she is a trustee or towards whom she stands in such fiduciary capacity i.e. the appellant / defendant - HELD THAT:- A mother is not a trustee of her major son and does not stand in a fiduciary capacity to her major son. Such notions, held by the appellant / defendant or his counsel, are not supported by any law. Merely because a major son chooses to purchase the property in the name of his mother would not allow him to seek exemption from the societal malice which was sought to be curbed by enactment of the Benami Law and Section 4 whereof was intended to curb such litigation which consumes a lot of time of the Courts. Section 4(3)(b) of the Benami Act provides that nothing contained in Sections 4(1) and 4(2) shall apply where the person, in whose name the property is held, is a trustee or other person standing in a fiduciary capacity. The question, whether mother is a trustee of her major son or stands in a fiduciary capacity to her son, is no longer res integra. It has been held in Anil Bhasin Vs. Vijay Kumar Bhasin . [2002 (8) TMI 878 - DELHI HIGH COURT] that property purchased by a parent in the name of a son does not fall under the category of a fiduciary relationship and is clearly hit by the prohibition contained in the Benami Act. Similarly, a property, even if purchased by a son in the name of mother, as is claimed here, would not fall in the category of fiduciary relationship and is clearly hit by the prohibition contained in the Benami Law. 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. and contends that the First Appellate Court has misconstrued the aforesaid paragraph to be meaning that a fraud has to be necessarily pleaded. It is contended that the said judgment nowhere lays down the same. When I asked the counsel for the appellant / defendant whether the advocate is in a fiduciary capacity vis--vis his client, the counsel for the appellant / defendant answers in the negative. If such notions as are being applied were to be applied, a client reposes trust and faith in the advocate by entrusting his/her life or property to the advocate and if the notions of trusteeship as are urged vis--vis the mother were to be applied, the answer qua the advocate also should have been in the affirmative. The position of law in this context does not admit of any ambiguity and is clear. The appeal thus does not raise any substantial question of law.
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