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2020 (2) TMI 543 - HC - Benami PropertyBenami property - relief sought by the applicant under Order XII Rule 6 of the CPC - application filed by Smt.Indu Kamboj [defendant no.9 ] for a direction upon the plaintiff to delete certain properties from the schedule of properties in this partition suit - applicant’s contention is that the property is her self-acquired property and is not susceptible to partition at the instance of the plaintiff - whether character of the properties in question as self-acquired properties of the applicant? - HELD THAT:- Plaintiff joined the business, commenced by his father in the year 1975, in which the defendant nos. 1 and 2 and late Sh.Narender Kumar Kamboj also participated. The expansion of the business resulted in the acquisition of various properties. According to the plaintiff, the brothers did not maintain separate accounts and the properties were purchased by their father in the names of his aforesaid sons. Properties were purchased in the names of one or the other member of the family, for the benefit of the entire family. Although Mr. Srivastava is right in saying that the plea with regard to the fiduciary capacity in paragraph 27 of the plaint is in respect of the brothers of the plaintiff, paragraph 40 of the plaint clearly indicates that the properties were purchased inter alia in the name of the applicant, who is the wife of defendant no.1. The averment in paragraph 38 of the plaint that the parties are holding the properties in trust of each other, is also relevant in this regard. Whether the applicant is entitled to the relief claimed in terms of Order XII Rule 6 of the CPC must be decided on a meaningful and holistic reading of the pleadings, or other documents in which the plaintiff is alleged to have admitted the applicant’s defence. To entitle a party to a decree in terms of Order XII Rule 6 of the CPC, the admission must be categorical, unconditional and unequivocal. Pleading in respect of a joint Hindu family, where property is held as a trustee for all family members, could not be decided at the stage of an application for rejection of plaint and ought to be taken to trial. The relief of declaration sought in prayers A and B are questions that would in any effect fall for consideration while adjudicating the question of partition. It therefore cannot be held that, on the admitted facts, the plaintiff’s claims are barred by virtue of Article 58 to the Schedule of the Limitation Act, 1963. Limitation being a mixed question of law and fact, the point is therefore reserved for final adjudication in the suit. Conclusion - We do not consider this to be an appropriate case for grant of the discretionary relief sought by the applicant under Order XII Rule 6 of the CPC. The application is therefore dismissed. However, it is made clear that the observations contained in this order are not intended to prejudice the case of the parties at the final adjudication of the suit.
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