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2020 (11) TMI 760 - HC - Benami PropertyBenami transaction - suit property belonged to father late Yashpal Sain of appellant wherein she is entitled to 1/4th share in the said property - suit was filed by Smt. Savita Anand, (“appellant”) for partition and permanent injunction against three defendants, i.e. her mother Smt.Krishna Sain (who has since expired during the pendency of the appeal and will be referred to for convenience as ‘D1’), her sister Smt.Sarita Mullick (hereinafter referred to as ‘D2’) and her brother Sh.Sanjeev Sain (hereinafter referred to as ‘D3’) - how the plaintiff/appellant could claim a share in the suit property merely on the basis of her late father being a member of the Society in question, given the dicta of the courts? - argument of appellant was that the case ought not to have been dismissed without trial as there were many factual issues that were to be proved by leading evidence HELD THAT:- The appellant appears to be very eager to establish a vested right in the suit property by claiming it to be an HUF property or in the alternative, joint family property. The purchase of 5 Bighas 10 biswas land at Mathura Road in 1960 cannot be connected with any compensation received as a refugee by late Yashpal Sain in the absence of any document to substantiate payment and receipt of such compensation. Nor can the purchase of the property at Mathura Road by him be accepted as a “restoration” of “ancestral” property, when the existence of any such “ancestral” property at Lahore, Pakistan, is itself completely doubtful in the absence of cogent and clear disclosures in the plaint in this regard. There is no reason to presume that it was this compensation that he may have received that was invested in the property that was purchased at Mathura Road. Secondly, the said plot of land at Mathura Road was acquired by the Government in 1960, thus extinguishing all rights of late Yashpal Sain in that land. Though compensation for the same amounting to ₹14,101.88 paise was also awarded to him, such compensation did not take the colour of joint family funds. Even if this compensation was thereafter ploughed back into the purchase of a plot measuring 5494 sq yds in the Society, no conclusion can be drawn that this plot was also of the nature of an HUF property in which the appellant could stake a claim Yashpal Sain failed to complete the requisite formalities as a result of which no plot of land was in fact allotted to him. At the time of his death, no plot stood in his name to which the appellant could stake a claim as his legal heir. Thus on both the threads of arguments, the appellant was rightly held to be not entitled to any share in the suit property. Whatever may have been the source of the various payments made towards consideration, development charges, electricity charges, all documents that determine the ownership of the suit property stand in the name of D1.The Share Certificate (dated 3rd June, 1964) stands in the name of D1.The receipts for payment of various amounts also stand in the name of D1. When the partnership was dissolved, the land was not sought to be divided in the shares of the partners in the partnership business clearly establishing that it was the asset not of the partnership but of D1. All these documents were well within the knowledge of the appellant when they were executed between 1963 and 2011 and the admissions contained explicitly in them, as also disclosed in the conduct of all family members including the appellant and her husband, cannot be permitted to be withdrawn by her merely because it is now convenient to claim otherwise, after the filing of the present suit. Through the appellant’s own conduct it is well proven that D1 was the absolute owner of the property and during her lifetime the appellant could not have claimed a share in the same. We are unable to find any error in the impugned judgement, which we uphold. The appeal is devoid of merit
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