Home Case Index All Cases Benami Property Benami Property + SCH Benami Property - 2021 (9) TMI SCH This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 317 - SCH - Benami PropertyBenami transaction - benami ownership of the plaintiff over the suit property taken by the defendant in his written statement - right of coparcener in the Hindu Undivided Family - claiming a decree for mandatory and permanent injunction for directing the defendant, the present appellant to hand over vacant possession of the property in question and mesne profits - The plaintiff had pleaded that she became the owner of property by virtue of gift deed executed on 03.09.1984 by her father- Late Sh. K.B. Midha - HELD THAT:- The husband of the plaintiff and the defendant are real brothers being sons of Late Sh. Krishna Lal Gulati. The property in question was gifted by the father of the plaintiff to her daughter i.e. the plaintiff. The defendant in the written statement pleaded many other facts relating to joint business of the family and the partition of the assets of family of Late Sh. Krishan Lal Gulati. The assertion made by the defendant in the written statement was denied by filing a rejoinder. The plea raised by the appellant is that the plaintiff was a Benami holder of the property. Such plea is barred in terms of Section 4(2) of the Act. Since such plea was not available in law, the High Court was justified in passing a decree on the basis of the written statement filed. The arguments that the plaintiff was holding the property in fiduciary capacity is not tenable in as much as the averment made by the defendant is of passing the consideration in favour of father of the plaintiff. The father of the plaintiff was not holding the property in a fiduciary capacity for the defendant. Still further, the defendant has not pleaded that the Plaintiff or her father had any fiduciary capacity as against the defendant is concerned. In the present case, the father of the plaintiff had no fiduciary relationship with the defendant falling in Section 4(3)(b) of the Act. The finding recorded by the Division Bench of the High Court in respect of blending of the property by the plaintiff in the Joint Hindu Family will arise only if it is a case falling under Clause (a) of sub-Section (3) of Section 4 of the Act, 1988. Such was not the case set up by the defendant. In view thereof, we do not find any merit in the present appeal. The appeal is dismissed. As the plaintiff is giving up her claim of mesne profits. The amount of ₹ 12,00,000/- (Rupees Twelve Lakhs) deposited in terms order dated 06.11.2015 of this Court be refunded to the defendant subject to the condition that the defendant hands over vacant physical possession of the property in question to the plaintiff within two months from today.
|