|
Advanced Search Options
Benami Property - Case Laws
Showing 41 to 60 of 336 Records
-
2023 (12) TMI 621
Prohibition of Benami Property Transaction - Initiating Officer issuing provisional attachment of the property order u/s 24(3) of the PBPT Act - Petitioner submitted that despite repeated requests by the petitioners, no material has been supplied to them and no opportunity of personal hearing was provided before passing of the order under Section 24(4) of the PBPT Act - as argued petitioners to the effect that the provisional attachment order passed by the Initiating Officer under Section 24(3) of the PBPT Act is illegal as the petitioners were asked to submit response/reply to the notice under Section 24(1) and (2) of the PBPT Act up to 15.05.2023 but without waiting for reply, the Initiating Officer passed the provisional attachment order on 01.05.2023
HELD THAT:- From bare perusal of the provisions of Section 24 of the PBPT Act, it is clear that the Initiating Officer is not required to wait or consider the response/reply filed pursuant to the notice under Section 24(1) & (2) of the PBPT Act before passing the provisional attachment order. The only requirement for the Initiating Officer is to seek approval of the approving authority before passing the provisional attachment order under Section 24(3) of the PBPT Act and from the provisional attachment order dated 01.05.2023, it is clear that prior approval of the approving authority was obtained by the Initiating Officer. Hence, the said argument of the learned counsel for the petitioner being bereft of merits is rejected.
So far as argument of the learned counsel for the petitioners that the Initiating Officer, at the time of issuance of show cause notice under Section 24(1) & (2) of the PBPT Act, did not record any reason to believe, is concerned, it is to be noticed that the Initiating Officer in the show cause notice dated 28.04.2023 has specifically recorded the reasons to believe. In such circumstances, we do not find any merit in the above argument of the learned counsel for the petitioners.
Section 2(9)(A)(a) of the PBPT Act provides that where a property is transferred or held by a person and the consideration for such property is paid by another person, then the said transaction means Benami transaction.
The stand of the respondents is that the petitioner-company is a shell company, however, immovable properties are purchased in its name not from company’s funds or its capital but from the funds made available by the petitioner No.2 from the income earned through other businesses.
The Initiating Officer, after taking into consideration the material available with it and the response filed on behalf of the petitioners, recorded its prima facie opinion in the order dated 28.07.2023 passed under Section 24(3) of PBPT Act.
Having gone through the above reasons recorded by the Initiating Officer, we are of the opinion that submissions of learned counsel for the petitioners referring to Section 2(9) of the PBPT Act are without any basis, hence rejected.
The judgment rendered in M/s Shri Kalyan Building’s case [2021 (10) TMI 343 - RAJASTHAN HIGH COURT] is of little help to the petitioners because in that case the petitioners approached this Court after passing of the order by the adjudicating authority under Section 26(3) of the PBPT Act and the appellate tribunal, where the petitioners had remedy to prefer appeal, was not functional, however, no such situation exists in the present case. Apart from that, the findings recorded by the learned Single Judge in M/s Shri Kalyan Building’s case is based on that facts and, therefore, the same are not binding.
As per the provisions of Section 24 of the PBPT Act, the Initiating Officer is required to record its prima facie satisfaction before referring the matter to the adjudicating authority.
Considering the provisions of Section 24 of the PBPT Act, the Division Bench in Dinesh Chand Surana Vs. Deputy Commissioner of Income Tax (Benami Prohibition) Chennai & Ors [2022 (9) TMI 1134 - MADRAS HIGH COURT] as held that part, it is important to note that the proceedings under section 24 only require a recording of prima facie opinion as to the benami nature of the transaction and the respondent is required
As decided in Abhay Nigam & Ors. vs. Union of India & Ors., [2021 (6) TMI 1044 - MADHYA PRADESH HIGH COURT] If Scheme ingrained in Sec. 24 and 26 of the Act of 1988 is compared with the PML Act, it will be clear that the Scheme is almost pari materia. For this reason also, we deem it proper to hold that "adjudicating authority" is best suited and statutorily obliged to consider the validity of provisional attachment order and the case put forth by the present appellants.
No case for interference made. Hence, all these writ petitions fail and are hereby dismissed.
-
2023 (12) TMI 620
Prohibition of Benami Property Transaction - Applicability of provisions of Section 5 of the Amended Act, 2016 - funds infused into the shell companies by multiple layering in the guise of share capital or loan from other Marg Group of Companies had actually flown only from Marg Limited directly and finally, one of the shell companies would re-invest the funds so routed in immovable properties - Initiating Officer had reasons to believe that the arrangements made by the respondent with various shell companies is a benami transaction within the meaning of Section 2 A (9) of the Prohibition of Benami Property Transactions Act, 1988 - as contended on the side of the appellants that Section 5 of the Prohibition of Benami Property Transactions Act, 1988, as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 will have retrospective effect and therefore, the common order passed by the Tribunal, to the contrary, is liable to be interfered with.
HELD THAT:- In view of the above, this court is of the opinion that as on date, the decision of the Hon'ble supreme court in Union of India v. Ganapati Dealcom Pvt Ltd [2022 (8) TMI 1047 - SUPREME COURT] holds the field and hence, the arguments advanced on the side of the appellants that the provisions of Section 5 of the Amended Act, 2016 have to be applied retrospectively, cannot be countenanced.
It is to be noted that in the Review Petition [2023 (1) TMI 1327 - SC ORDER] filed by the Department to review the order passed by the Honourable Supreme Court in Union of India vs. Ganapati Dealcom Pvt Ltd [2022 (8) TMI 1047 - SUPREME COURT] delay was condoned and the application for oral hearing of the review petition was allowed, however, no stay order was granted. In such circumstances, pendency of the review of the decision in Union of India vs. Ganapati Dealcom Pvt. Ltd, cannot be a ground to interfere with the order passed by the Tribunal. It is also well settled that mere pendency of the Review Petition will not be a ground to assail the orders impugned in the appeals.
-
2023 (9) TMI 200
Benami transaction - Prosecuting the petitioner u/s 55 of the Prohibition of Benami Property Transaction Act, 1988 - petitioner was standing in front of a certain lodge with a black bag in his hand, he was intercepted by the Inspector of Police, and he searched the bag and found cash worth Rs. 34,60,000/- inside it - petitioner under Section 131(1A) of the Income Tax Act, the Deputy Commissioner of Income Tax, the second respondent in this case, referred the matter to Benami Prohibition Wing of the Income Tax Department - HELD THAT:- Today the petitioner has made conflicting statement regarding the ownership of the property. First he made a statement that it belonged to Sultan Foumi, later he changes his statement and states that it is his own money. Now it is this inconsistency that has prompted the authority to grant sanction under Section 55 of the Act for prosecuting the petitioner.
After weighing the rival submissions, this Court considers that it is too premature stage for this Court to interfere with the decision of the first respondent to accord sanction for prosecution under Section 55 of the Act.
So far as certain contradictory statements alleged to have been made by the petitioner is concerned, its merits can be decided only post prosecution. The fact of the matter is that, here is the petitioner who is found to possess unexplained cash which he tries to explain through conflicting versions. Whether a person Sultan Foumi exists itself now comes under the scanner, since the response of the petitioner to the notice under Sec.24(1) of the Act seems to suggest something different. Could Sultan Foumi be a fictitious character? It is for the petitioner to explain.
The stage is too pre-mature for this Court go by the version of the petitioner. Consequently, this Court does not consider there is merit in this writ petition, and hence dismissed
-
2023 (8) TMI 1598
Prohibition of Benami Property Transactions - Scope of Amendment Act, 2016 - alleged benami transaction involved in this case is of the period prior to amendment - HELD THAT:- In the light of the facts available on record, we find that the appeal is covered by the Judgment of the Apex Court in the case of “Union of India & Anr. v/s M/s. Ganpati Dealcom Pvt. Ltd.” [2022 (8) TMI 1047 - SUPREME COURT]
Therefore, the order of the Adjudicating Authority confirming the action of Initiating Officer needs to be interfered and accordingly the impugned order and the proceedings initiated by the respondent in reference to the alleged benami transaction of a period prior to the Amendment Act of 2016 are set aside.
The appeal is allowed in view of the aforesaid.
-
2023 (8) TMI 1104
Benami transaction - true owner of property - Whether application for setting aside the sale can be entertained, which is not supported by any affidavit, but based on a report of the Administrator/Official Liquidator? - HELD THAT:- It has been an established practice of this Court that the Official Liquidator does not file an affidavit accompanied by a judge's summons. He only files a “report” which is of course signed and sealed by him at the end of every page. This is a practice which has been followed by this Court for decades. The Learned Judge felt that even an Official Liquidator should follow the same practice as being done by a private litigant by filing an affidavit together with a judge's summons.
We would like to recall a latin maxim at this point – “Cursus curiae est lex curiae”. The meaning of this latin maxim is that “the practice of the Court is the law of the Court”. Following this maxim, Coke C.J. in Burrowes Vs. High Commission Court held that the Court should always adopt the practice which has been prevailing before it.
We hold that the practice developed by this Court of the Official Liquidators or Administrators filing a report instead of an affidavit, has to be followed till a new procedure is introduced. We answer the first question accordingly.
Whether in view of the provisions of the Benami Transactions (Prohibition) Act, 1988, the Company can be said to be the owner of the property, though the property is shown to be under ownership of the true owners throughout? - In order to apply the plea of Benami, there has to be a sale/a conveyance. Title must pass from the existing owner to an other person who is a benamidar for the other. The transaction in the present case required 3 persons namely, the vendor, the benamidar/ostensible owner and the actual owner. The effect of the Benami Act, is that the relationship between the ostensible owner & the real owner is snapped. In this case, as pointed out by the Learned Judge in his order of reference, there is no transfer at all. On receipt of monies, the owner executes a Power of Attorney in favour of the employees of the Company. The transfer in favour of the customers is done by the employee as a Power of Attorney agent of the original owner. Therefore, the question of benami does not arise here. It is at best “a Power of Attorney Sale” which we shall address later.
In the case before us, the powers of attorney were executed in the last decade of the previous millennium and therefore, the argument based on Suraj Lamps [2011 (10) TMI 8 - SUPREME COURT] necessarily has to fail. This makes it clear that neither the Act as it stood in 1988 nor its subsequent avatar apply to the provision of the Benami Act as to the transactions among the landowner, powers of attorney & the company. We answer the second question accordingly.
Whether in absence of a petition under Sections 542 and 543 of the Companies Act, the transaction in favour of third party can be questioned by way of simple company application or company is required to file a civil suit to challenge the sale in competent Court having jurisdiction with permission of Company Court ? -. The powers of the Company Court under section 446 (1) and (2) are necessary for answering the question. If a winding up petition is pending and a Provisional Liquidator is appointed, the Company Court ipso facto would have jurisdiction to entertain all the proceedings that are covered under Sections (a) to (d) of Section 446 (2). This principle has been laid down at least five (5) decades ago in Sudarsan Chits (I) Ltd vs O. Sukumaran Pillai & Ors [1984 (8) TMI 242 - SUPREME COURT]
We answer this question stating that a combined reading of Section 446 read with Section 456 of the Companies Act, shows that the Company Court will have jurisdiction to deal with the issue relating to a transaction alleged to be in favour of a third party. The caveat to this proposition is that the jurisdiction of the Company Court, commences one year prior to the date of presentation of the company petition. The said power cannot be exercised by a Company Court for the transactions which have been concluded & to which the company is a party and if the title has vested in third parties, one year prior to the presentation of the petition.
What is the effect of Civil Court decree which has attained finality? - Whether in absence of positive evidence of false misrepresentation, a finding can be recorded of fraud and misrepresentation, without trial only on basis of Administrator/Provisional Liquidator? - As seen from Section 446 of the Companies Act, the power of the Company Court is wide. Therefore, the Company Court can always decide on the validity of a decree when it is presented before it. Whether the decree is binding on the Company and consequently on the official liquidator are matters which have to be gone into at the time of the Trial. We add, the Company Court has the power not only to entertain suits or other proceedings but it can also decide the said suit or proceeding after taking evidence.
Whether the Company Court has the jurisdiction to determine question of title of land falling outside jurisdiction of this Court in view of Clause 12 of Madras High Court Letters Patent? - The answer to this question lies under Section 10 of the Companies Act of 1956. If a Company is registered within the jurisdiction of a High Court exercising its jurisdiction under the Companies Act of 1956, then necessarily by virtue of Section 10 of the Act, the Company Court has the power to determine the title of the land of properties falling outside the Ordinary Original Jurisdiction of the Court.
We have to note that Letters Patent has been treated as a parliamentary statute and it is held to be in force till it is replaced by another parliamentary statute. Companies Act of 1956 is a parliamentary statute and it has conferred the power on the company courts under section 10 of the Companies Act. We hold in this case, though the properties in this case are situated in the state of Telangana and Andhra Pradesh, as the company was registered within the jurisdiction of this Court, the Company Court has the jurisdiction to deal with the said issues.
-
2023 (8) TMI 1103
Benami Transaction - True owner of property - Whether the Trial Court was right in concluding that Items 1 to 3 of suit properties were belonged to Ramasamy Chettiar, though the sale deeds dated 27.10.1948 stood in the name of Sowdammal? - HELD THAT:- We have considered contents of Ex.A2, sale deed, which clearly shows that consideration for the said sale was paid by Ramasamy Chettiar on behalf of the Sowdammal. There is a specific endorsement to the effect made by the Sub-Registrar, which is an Official act done under Section 58 of the Registration Act.
We find force in the contention of the respondents to the effect that Ramasamy Chettiar, who was the head of the joint family having seven children would not have intended to benefit his wife alone. The fact that he was forced to sell away the property in 1961 to get the 1st defendant married is projected as a pointer. When we look at the totality of the circumstance and evidence of the D.W.1, the eldest daughter of Ramasamy Chettiar and Sowdammal, we find that we have to agree with the Trial Court in its conclusion that the property was purchased by Ramasamy Chettiar out of his own funds and he was intend benefit Sowdammal / his wife through the said purchase.
No doubt, there was some ancestral property but it is not shown that it had yielded necessary income for the purchase. Therefore, we should necessarily proceed on the finding that the property was self acquisition of Ramasamy Chettiar. Once it is held that the property was a self-acquisition of Ramasamy Chettiar, the plaintiff and the defendants 1 to 6 along with Sowdammal would each be entitled to 1/8th share. The 1/8th share of Sowdammal would devolve, on her death, on her heirs depending on her intestacy or otherwise.
Validity of the Will left by the Sowdammal - Whether the Will dated 05.06.1995 has been proved to be true and valid ? - As rightly pointed out by the learned counsel for the plaintiff the signatures made at the time of execution of the Will are vastly different from the signatures made before the Sub-Registar.
We are unable to persuade ourselves to agree with the contention of defendants 2, 9 and 10 regarding execution of the Will. Despite being a registered instrument, the Court is not precluded from examining the suspicious circumstances.
As rightly pointed out by the learned counsel for the plaintiff Sowdammal, who was the mother of at least seven children would not have, but for very strong reason, executed a Will excluding six of her children from inheriting her property. We do not find any explanation either in the Will or in the evidence of D.W.2 and D.W.3.
As we have already pointed out that the disinheritance of at least six of the heirs and preference to a daughter-in-law and married grand daughter by itself is a suspicious circumstance. We are unable to find any evidence that would justify such exclusion by Sowdammal. The above coupled with differences in signatures found in the document compel us to conclude that the Will has not been proved in accordance with law and the same cannot be said to be valid and binding on the other heirs. Once we reach a conclusion that the Will has not been proved, the share of Sowdammal in Items 1 to 3 namely, 1/8th will also devolve under Section 15 of the Hindu Succession Act under which her children will get an equal share. Therefore, the plaintiff will get 1/7th share in Items 1 to 3.
Purchase of Item 4 and the character of 5th item of Schedule 1 and 1st Item of Schedule 2 - Whether the ancestral nucleus found to be in existence earned a sufficient income to leave a surplus to enable purchase of Items 4 and 6 of the 1st schedule in the name of the defendants 2 and 9 respectively ? -Since Ramasamy Chettiar was alive at that time, a purchase by a junior member of a joint family does not entail the same presumption as purchase in the name of the Karta. Therefore, person claiming the property to be joint family property will have to establish by cogent and convincing evidence that the purchase was made out of the funds from the joint family properties.
We also find that the nucleus that was available was only a house property, which would not have generated so much of income to enable purchase of Item 4 in the name of the 2nd defendant. Apart from the above, the 2nd defendant has also produced evidence in the form of sales tax returns Ex.B15 and assessment orders under Exs.B18, 19, 20 and 21 to show he has been doing some business at that time. We are therefore, inclined to accept the finding of the Trial Court regarding the character of Item 4 of the suit schedule properties.
6th item of the suit schedule properties was purchased under two sale deeds - Whether it is shown to the plaintiff to plead that Item 6 belonged to the joint family ? - Item 6 is the absolute property of the 9th defendant and the plaintiffs are not entitled to any share in the suit properties. The Trial Court has granted 1/7th share to the plaintiff in Item No.5 of Schedule 1 and Item 1 of Schedule 2, which are admittedly joint family properties.
Defendants 2, 9 and 10 is unable to pick holes in the findings of the Trial Court with reference to those properties, since the character of those properties has been admitted. The Trial Court granted 1/7th share treating the children of Ramasamy Chettiar as coparceners in view of the advent of Hindu Succession (Amendment) Act 39 of 2005. We therefore, affirm the said findings of the Trial Court.
a) the plaintiff is declared entitled to 1/7th share in Item 1 to 3 and 5 of Schedule 1 and Item 1 of Schedule 2. There will be a preliminary decree for partition as above.
b) the parties will be entitled to move the Trial Court for determination of mense profits.
c)The Trial Court's decree stands confirmed in respect of Item No.5 of Schedule 1 and Item 1 of Schedule 2.
-
2023 (8) TMI 493
Benami Transactions - real/absolute owner - rights of bona fide purchaser of the property for valuable consideration - whether the plaintiff is the absolute owner of the suit property in consequence that the defendant, her men and agents are to be restrained from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property? - Trial Court arrived at a conclusion that the property was purchased by the plaintiff in the name of his wife / 1st defendant and it was purchased for her benefits - HELD THAT:- The suit was instituted for declaration and permanent injunction. Though the plaintiff was in possession of the Suit property the Trial Court found that the plaintiff purchased the property for the benefit of the 1st defendant, who is none other than his wife and from out of their relationship two sons were born and at a later point of time there was a dispute between the plaintiff and the 1st defendant and subsequently, the 1st defendant lived separately.
Admittedly, the suit property was purchased in the name of the 1st defendant and the sale deed was marked as Ex.A1 and Patta was marked as Ex.A2, which also stand in the name of the 1st defendant. The transaction and execution of sale deed in favour of the 1st defendant has not been hit by the provision of the Benami Transactions (Prohibition) Act, since the plaintiff is the husband of the 1st defendant.
This being the facts and circumstances considered by the Trial Court, this Court do not find any infirmity or perversity in respect of the judgment and decree passed [2017 (1) TMI 1814 - DISTRICT COURT, CHENGALPET]
Accordingly, the judgement and decree passed by the District Court, Kancheepuram District at Chengalpet stands confirmed and consequently, the Appeal Suit is dismissed. No costs.
-
2023 (8) TMI 68
Benami transactions - property is joint hindu family - real owner - trial Court held that the plaintiff was not able to prove that there was any nucleus of the joint family property from which they have purchased the suit property - HELD THAT:- The suit land has been purchased in the name of the plaintiff and defendant No.2 jointly. However, the finding of both the Courts is that at the relevant time the plaintiff was a minor and that there was no nucleus or ancestral joint family property from which the amount was received to purchase the suit property. There was no evidence whatsoever that the family owned ancestral property, as such, the Court held that the property is not the ancestral property. The suit property is held to be purchased by the defendant No.2.
Since both the Courts below have held that the suit property is individual property of the defendant No.2 and not a joint family property, the issue of sale of the suit property for legal necessity does not survive.
In view of the judgment of the 3 Judges Bench of R.Rajagopal Reddy [1995 (1) TMI 67 - SUPREME COURT] and in the case of Dattaram Govindrao Kale . [2023 (8) TMI 2 - BOMBAY HIGH COURT] the defence of benami transaction taken prior to the Act coming into force is available and the Benami Transactions [Prohibition] Act is not retroactive to that extent.
-
2023 (8) TMI 67
Benami transaction - parallel proceedings under Income-tax - cash which is said to belong to the petitioner and was seized from the hands of the petitioner's friend, was taxed in the hands of the petitioner for the Assessment Year 2021-2022 - writ filled seeking adjustment of cash that was seized from the hands of the petitioner's friend - meanwhile fourth respondent has initiated proceeding under Section 263 - HELD THAT:- The prayer of the petitioner for a Mandamus cannot be countenanced without an application by the petitioner under first proviso to Section 132 of the Income Tax Act, 1961, although there could be a corresponding duty on the part of the respondents to appropriate the amount that was seized on 20.06.2020, if an application is made. If the aforesaid seized amount is to be treated as an asset of the petitioner and adjusted u/s 132 of the Income Tax Act, 1961, the petitioner has to first file an application as is contemplated under the aforesaid provision.
Considering the fact that a parallel proceedings is also pending before the fifth respondent under the Prohibition of the Benami Property Transactions Act, 1988, pursuant to the order passed by this Court in W.P.No.9868 of 2023, direct the petitioner to file appropriate application before the third respondent in accordance with the provisions of Sections 132B of the Income Tax Act within a period of 7 days from the date of receipt of a copy of this order. The third respondent shall dispose the same within a period of 8 days thereafter.
Considering the fact that the parallel proceedings is also likely to be heard and disposed by the fifth respondent on 01.08.2023 under the Prohibition of the Benami Property Transactions Act, 1988, the third respondent shall endeavour to pass orders as expeditiously taking note of the order to be passed by the fifth respondent.
-
2023 (8) TMI 2
Benami transaction - real owner of property - beneficial wight in suit property - property is the self acquired property of defendant no.2 - Defendant no.1 purchased the property before the act came into force - HELD THAT:- The Hon’ble Supreme Court in the case of R. Rajagopal Reeddy, [1995 (1) TMI 67 - SUPREME COURT] has held that the plaint would not lie under section 4(1) of the Benami Transactions (Prohibition) Act for a claim to enforce any right in respect of any property held benami, against the person in whose name the property is held after coming into effect of the Act, even if the transactions were prior in point of time. Also under section 4(2) of the Act if a suit is filed by plaintiff who claims to be owner of the property on the basis of ownership document and claims ownership on the basis that the property is in his name, after the coming in force of the Act no defence would be permitted or allowed in any such suit, claim or action by or on behalf of the person claiming to be the real owner of such property held benami. Section 4(2) restricts the defence of a pre-existing right.
Such a provision the Hon’ble Supreme Court has held in the case of R. Rajagopal Reddy (supra), cannot be retrospective or retroactive by necessary implication. However, what is prohibited is the defence to be taken on that day when the act came into force. Thus, even if the transaction is prior in point of time, defence based by the owner of the property who holds the property benami in the name of some other person is not permissible under section 4(2) of the Benami Transactions (Prohibition) Act after the Act comes into force.
In the instant case, the defence is taken much prior to the coming into force of the Benami Transactions (Prohibition) Act and the defence once allowed cannot be subsequently taken away. The defence was taken in the year 1982 much before the act came into force.
In the instant case, the defence of benami transaction by defendant no.2 in favour of plaintiff is taken by the person (defendant no.1), who has purchased the property before the act came into force. On the date of the act coming into force there was no property in the name of the plaintiff, as such, whether a plea of declaration of ownership on the basis of sale deed in its favour prior to the coming into force of the Benami Transactions (Prohibition) Act can be maintained by the plaintiff against the purchaser of the property from the real owner who purchased the property benami in the name of the plaintiff, is itself doubtful.
Defence was taken by defendant no.1 of benami transaction by defendant no.2 in favour of the plaintiff and that the defendant no.2 being the real owner of the property was entitled to sell the suit property to the defendant no.1 was taken much prior to the coming into force of the Benami Transactions (Prohibition) Act and in view of the judgment of the 3 Judges bench of R. Rajagopal Reddy (supra), the defence of benami transaction taken prior to the coming into the act is available and the Benami Transactions (Prohibition) Act is not retroactive to that extent.
The Prohibition of Benami Property Transactions Act, 1988 is not applicable to the instant case.
Next Question of Law raised for the appellant that the permission was required to be taken under section 8 of the Guardianship Act from the mother of the appellant is also not tenable in view of the fact that the property is the self acquired property of defendant no.2 and the appellant plaintiff had no right in the suit property, thus the question of taking permission from the district court under section 8 of the Guardianship Act does not arise.
-
2023 (7) TMI 1136
Benami transaction - subject property as “joint property” - plaint does not disclose a cause of action and that it is also barred by law - HELD THAT:- The plaintiffs do not dispute that the subject property was purchased by defendant No.2 from its erstwhile owners, Davinder Sahni and Pritpal Kaur Chandhok, vide registered Sale Deed dated 27.03.1992. The plaintiffs contend that funds of their partnership firm were used for purchasing the subject property, since they allege, defendant No.2 had no income of her own.
Whatever may have been the legitimacy of “routing” funds in this way, even on a demurrer, the plaintiffs admit that ultimately monies were paid by defendant No.2 towards purchase of the subject property in her name. The subject property accordingly stands in the sole name of defendant No.2 and is her absolute property.
There is no averment in the plaint that the sale deed placed any restriction saying that the subject property would not be held by defendant No. 2 as sole and absolute owner. In view of the clear mandate of the section 14 of the Hindu Succession Act therefore, as a matter of law, defendant No.2 holds the subject property as full owner and not as a limited owner, and no averment in the plaint detracts from this position.
Besides, the plaintiffs' own best case, as admitted inter-alia in para 8 of the plaint, is that they routed money through third parties to buy the subject property in the name of defendant No.2. This is precisely the kind of mischief that section 4 of the Benami Transactions Act seeks to prevent, and therefore bars any claim made in respect of property so held by a third party benami for the person who funds the purchase. This in fact is the very purpose and intention of the legislature in enacting the Benami Transactions Act.
Insofar as the plaintiffs' contention that defendant No.2 falls within the exception engrafted in section 2(9)(A)(ii) to the definition of “benami transaction”, a bare reading of the plaint would show that there is not even a whisper of an allegation that defendant No.2 was a partner of the partnership firm, the monies of which were allegedly routed for purchasing the subject property. There is also no allegation in the plaint that defendant No.2 was a partner of that firm.
At the highest, the plaintiffs contend that defendant No.2 was in a fiduciary capacity vis-à-vis them since she was the wife of defendant No.1, who (latter) is a partner of the firm. There is clearly no support for the proposition that a partner”s wife becomes a partner, by operation of any law or otherwise. If any doubt was to remain on that count, a bare reading of section 5 of the Partnership Act answers it squarely.
Merely because defendant No. 2 is the wife of a partner of the firm, she does not ipso-facto become a partner of the firm, inter-alia since as per section 5 of the Partnership Act, a relationship of partnership arises from contract and not from status of the parties.
It is the plaintiffs” own case that the alleged oral family settlement happened even before the settlement deed was signed in February 2013. Clearly therefore, the present suit is way beyond the limitation of 03 years stipulated in Article 59 of the Schedule of the Limitation Act, with no scope for any extension or exclusion of time or condonation of delay under any of the provisions of the Limitation Act. It may further be observed that, other than a bald plea, there is no averment in the plaint nor any separate substantive application seeking to address the point of limitation, or explaining how the cause of action is claimed to be continuing in nature.
This court is persuaded to hold that the plaint does not disclose any cause of action that requires trial. Furthermore, this court is of the opinion that applying the position of law as cited above, the reliefs claimed in the plaint are also clearly barred by law.
-
2023 (7) TMI 600
Use of joint nucleus funds for the purchase of the suit property - Whether the Lower Appellate Court is correct in law in relying upon Patta Ex.B4 for concluding that the property belonged to Rangaraj totally overlooking the fact that patta is not a document of title? - HELD THAT:- The impugned judgment, however, does not deal with and answer the substantial questions of law, but relies upon Section 4 of the Benami Transactions (Prohibition) Act, 1988 a plea and contention which was never raised by the respondents, to dismiss the appeal.
Our attention is drawn to the exceptions carved out to Section 4 of the 1988 Act. According to the appellants, the exceptions are applicable in the present case. As per the appellants, applicability or bar under the 1988 Act would be a mixed question of law and facts.
Looking at the nature of controversy, including the contentions raised, and the impugned judgment, we are of the opinion that the same cannot be sustained being devoid of in-depth examination and considerations of the issues involved, including whether or not bar of Section 4 of the 1988 Act would be attracted. We, accordingly, pass an order of remit restoring the second appeal for fresh consideration by the High Court.
The impugned judgment is set aside and the appeal is allowed with an order of remand to the High Court to decide the second appeal afresh, and expeditiously in accordance with law.
-
2023 (7) TMI 117
Benami transaction - Title over property - Whether the suit property was purchased by the elder brother (deceased) in the name of the plaintiff (Brother) as benami? - trial Court dismissed the suit on the ground that the plaintiff has not proved his income to purchase the suit property - property had been purchased in favour of other coparcener by another coparcener and the defendants are also perfected title by adverse possession and non suited plaintiff by dismissing the suit - HELD THAT:- The plaintiff in his evidence clearly spoken that since Subramanian was the eldest brother of the family and residing in the suit property, the invitation was printed in the name of the husband of the first defendant and house warming ceremony was performed in his name and the same cannot be a ground to hold that the entire benami transaction is proved.
The plaintiff also clearly explained how the custody of the original documents came to his brother. The specific case of the plaintiff is that during the proceedings before the planning authorities, the first defendant's husband required all the original documents. Therefore, the plaintiff had handed over all the original documents of the property to his brother Subramanian. The very fact that the first defendant's husband had appeared in that proceedings as a Lawyer and he had not claimed any right or shown any animus or hostile intention at the relevant point of time to hold that the suit property is his absolute property. The explanation given by the plaintiff with regard to the custody of the original documents is more probable. If really the plaintiff is not having any right over the property what was the necessity for the first defendant to send Ex.A8 postal card to her uncle. Therefore, the contention of the defendants the suit property was all along treated as absolute property of Subramanian cannot be countenanced.
The defendants had not established the source for the purchase of the property by the first defendant's husband. The fact that how the custody of the documents came to the hands of the first defendant's husband was also clearly established by the plaintiff. Subramanian was in fiduciary relationship with his younger brother, since he is the eldest brother of the family and also he is a Lawyer by profession. Therefore, keeping the documents in his custody particularly, when he had prosecuted certain matters before the authorities on behalf of the plaintiff is quite possible.
As far as the motive is concerned, the very motive for benami transaction is to defeat the rights of the first wife. Even such motive is true, the first defendant's husband kept silent even after his first wife relinquished her right in the year 1971 and he had not asserted his right independently as a owner. Whereas, he stood only as an agent of the plaintiff. Therefore, the plea of benami transaction has to fail.
Merely because the defendants are in possession of the suit property and paying the house tax in their name, that will not be sufficient to prove the benami transaction. Admittedly, the first defendant was a practicing Lawyer and he was inducted into the suit property and he was residing there. Hence, it is normal for him to pay house tax and water tax and keeping the receipts with him. Therefore, merely on the basis of production of these receipts by the defendants, it cannot be concluded that the entire transaction is benami transaction.
As also urged before this Court that the plaintiff had not established the so called pro-note, under which he had borrowed the amount to pay the advance amount. When Ex.B1, sale deed was perused, it makes it clear that only the plaintiff had paid the entire sale consideration. To establish the contention of the defendants that the plaintiff has no income to pay the sale consideration, one of the attesting witnesses was alive even during trial, but the defendants had not even taken any steps to examine him. Similarly, the vendor of the suit property was also not examined.
This Court is of the view that the finding of the trial Court that the defendants perfected title by adverse possession is also not correct. In order to prove the plea of adverse possession, hostile intention and animus on the part of the defendant's husband has to be established. When Subramanian himself has not shown any animus and hostile intention to hold that the suit property is his absolute property, the plea of adverse possession has to necessarily fail. Though various judgments have been placed by the learned counsel for the defendants with regard to his contentions, the fact remains that the above judgments are not applicable to the facts of the present case. The plea of benami transaction has not been established by the defendants.
Accordingly, all the points are answered. The judgment of the trial Court is set aside and the suit is decreed for declaration and recovery of possession and also the accounts as prayed for.
-
2023 (6) TMI 1264
Joint properties purchased by husband and wife [housewife] - legal owner - exclusive right over the properties - Property purchased out of the monies earned by the plaintiff [husband] and by the indirect contribution made by 1st defendant [wife] - plaintiff was working abroad and sending money to the 1st defendant [wife] - suit properties, items 1 to 4 were purchased in the name of the 1st defendant benami out of the money sent by the plaintiff while he was in abroad and that the plaintiff took possession and managed the said properties as his own properties after returning from abroad - 1st defendant failed to prove that she had sufficient funds of her own to purchase the 4th item of the suit properties.
The plaintiff and the 1st defendant are husband and wife, married as living in Neyveli. The plaintiff got a job in a Steel Company in Saudi Arabia, and left for Saudi Arabia, the 1st defendant [wife] continued to live in Neyveli children and she was entrusted with the funds of the plaintiff - During his visit to India between 1983 and 1994, he brought various articles of value, jewellery and cash. The 1st defendant [wife] had no income of her own and was only managing and administering the affairs of the plaintiff prudently and operating the accounts and thus was acting in effect as the agent in a fiduciary capacity. While managing the affairs of the plaintiff, she purchased items 1 to 4 properties on behalf of the plaintiff utilizing the funds of the plaintiff.
HELD THAT:- This Court is of the considered view that the 1st defendant/wife has contributed equally, though not directly but indirectly by way of looking after the home and taking care of the family for more than a decade and managing the household chores, thereby releasing the husband for gainful employment and made his stay comfortable in abroad and also to reduce the expenses and save the money for future benefit of the family including for purchasing of the assets.
Though the properties purchased in the name of the 1st defendant, she alone cannot claim exclusive right over the properties merely because the title deed is in her name since the documentary evidence would establish that the 1st defendant/wife purchased the properties out of the direct financial contribution of the plaintiff also.
Likewise, the plaintiff also cannot claim absolute right merely on the basis that he had sent the money to purchase the properties and the 1st defendant is only holding the property in trust as ostensible title over the properties in fiduciary capacity, as already discussed based on Ex.A1 to Ex.A11, this Court arrives at the conclusion that since Item Nos.1 and 2 have been purchased from and out joint contribution of spouses, viz., the plaintiff by earning and the 1st defendant indirectly by way of her invaluable services as home maker, whereby reducing the expenses of her husband which lead her husband to save more and this way the wife had contributed indirectly to purchase the property item Nos.1 and 2, which aspect cannot be ignored as the same could be decided based on Ex.A1 to Ex.A11.
This Court has no hesitation to hold both the plaintiff and the 1st defendant are entitled to equal shares in the present facts of the case over the Item Nos.1 and 2 of the schedule mentioned properties and to that extent the judgment and decree of the First Appellate Court are set aside.
Item No.4 of the schedule mentioned properties - 1st defendant also failed to produce any documentary proof to show that this property was purchased by selling her ancestral property. In the absence of the documentary evidences on the part of the 1st defendant, a presumption can be drawn by this Court to the effect that this property was purchased from and out of the monies earned by the plaintiff and by the indirect contribution made by the first respondent and further as stated above, both the spouses, have directly or indirectly contributed in acquiring the properties, likewise, the item No.4 also. Accordingly, this Court holds that both the plaintiff and the 1st defendant are entitled to equal share over the item No.4 of the schedule mentioned properties and to that extent the judgment and decree of the First Appellate Court is set aside.
No hesitation to hold both the plaintiff and the 1st defendant are entitled to equal shares in the present facts of the case over the Item Nos.1 and 2 of the schedule mentioned properties and to that extent the judgment and decree of the First Appellate Court are set aside.
Benami transaction - As benami transaction would not attract in respect of the properties purchased for the benefit of the husband and the 1st defendant is only holding the property in trust for the benefit of her husband. Though they have taken a stand that the Benami Transactions would not be applicable, this Court already arrived at the conclusion that the suit properties have been purchased by the joint contribution made by the plaintiff and the 1st defendant equally, Section 3, 4 or 5 of the Benami Transaction Act would not attract in the present case.
This Court is of the view that Item Nos. 1, 2 and 4 of the schedule mentioned properties were purchased from and out of the joint contribution made by both the plaintiff and the 1st defendant and they are entitled to equal shares over the item Nos.1, 2 and 4 of the schedule mentioned properties. Accordingly, the Substantial Questions of Law Nos.2, 4, 5, 6 and 7 are answered.
Property of a female Hindu to be her absolute property - 3rd item of the suit properties was purchased by the 1st defendant by pledging her jewels and that she is the owner of the said property - When this property was purchased in the name of the 1st defendant by pledging her jewels, it should be considered that the 1st defendant alone is the full owner of the property and not a limited owner. Merely the plaintiff/husband helped her for redeeming the jewels, would no way, create a right in his favour over the property. Only Ex.A15 shows that the jewels were redeemed out of the monies received from the plaintiff. ExA14 is the document, which establishes that the money had been received by pledging the 1st defendant/wife's jewels for the purchase of Item No.3 of the schedule mentioned properties. Therefore, I do not find any error in the judgement of the First Appellate Court in holding that the Item No.3 of the schedule mentioned properties belongs to the 1st defendant only.
Jewels in the 5th item locker were purchased by the plaintiff for the benefit of the 1st defendant and that the plaintiff is not entitled to the same - relationship of husband and wife between the plaintiff and the 1st defendant came to an end by dissolution of the marriage - The correspondences took place between the 1st defendant and the plaintiff, clearly reveals that the plaintiff had not bought the same on his own volition, but only on requests made by the 1st defendant persistently to gift her jewels, the plaintiff in order to fullfill her wishes, bought the jewels, sarees, etc., and presented her. Therefore, once he presented the gifts, he is not entitled to claim it back though he purchased out of his own earnings. Therefore, this Court is of the view that the Item No.5 of the schedule mentioned properties belongs to the 1st defendant. Thus, do not find any error in the judgment and decree of the First Appellate Court on this aspect of Item No.5. Accordingly, the substantial question of law No.3 is answered in favour of the 1st defendant.
This Court holds as regards Item Nos. 1, 2 and 4 of the schedule mentioned properties, that both the plaintiff and the 1st defendant are entitled to half share each and as far as Item No.3 and 5 of the schedule mentioned property are concerned, the 1st defendant is the absolute owner of the same.
-
2023 (6) TMI 1263
Benami transaction - Relief of declaration and partition seeked - suit for declaration as the co-owner to the extent of 21,000 Sq.ft of the suit property and for consequential relief of partition and separate possession of plaintiff's share in the suit property - plaintiff also sought for the relief of permanent injunction restraining the defendants from encumbering the suit property or changing the physical features of the suit property by putting up construction -Whether plaintiff is entitled to the relief of declaration that the plaintiff is the owner of 21,000 sq.ft out of 85,949 sq.ft in the suit schedule property? - Whether the plaintiff is entitled to the relief of partition by metes and bounds as prayed for?
HELD THAT:- Admittedly, in this case, there is no written documents, in support of the plaintiff's plea that there was a partnership arrangement between the parties to develop the suit property and share the profits. The learned senior counsel appearing for the plaintiff empathetically submitted that the partnership arrangement can be formed even orally and it is not necessary that it should be only by way of written documents.
As rightly contended by defendants even in the plaint averments, the plea regarding the oral partnership is very vague and bereft of material particulars. The plaintiff has not pleaded the date, place etc., in which the oral agreement was entered into. There is no plea in whose presence the oral arrangement between the parties was entered into. Even during trial, the plaintiff has not examined any independent witnesses in support of the oral partnership agreement. Therefore, except the interested testimony of PW.1, there is no other acceptable evidence available on record to suggest oral partnership agreement. In such circumstances, we cannot come to a conclusion that there was an oral partnership agreement between the plaintiff and the contesting defendants.
Main legal plea raised by the contesting defendants is that the plaintiff is not entitled to maintain a suit prayer that he is a co-owner of the suit property on the ground that he contributed financially for purchase of the suit property - As there is some evidence available on record atleast to show that the plaintiff contributed to the extent of Rs. 96,38,266/- to enable the first defendant to acquire land with an extent of 9168 sq.ft. However, there is no evidence available on record to support the case of the plaintiff that he contributed Rs. 2,16,38,266/- to enable the first defendant purchased the suit property to the extent of 21,000 sq.ft.
In any event, even assuming the suit property was purchased by first defendant out of the contribution made by the plaintiff, it is the case of the plaintiff that it was purchased in the name of the first defendant for the benefit of future business entity to be formed by plaintiff and the defendants 1, 9 and 10. Therefore, it can only be treated as property purchased in the name of first defendant for the benefit of plaintiff and the contesting defendants. In such circumstances, the same would come under the Prohibition of Benami Property Transaction Act, as per the definition contained in Prohibition of Benami Transaction Act.
As far as contention raised by the learned Senior Counsel for the plaintiff that the 1st defendant stands in fiduciary capacity and hence exception recognized under Benami Prohibition Act gets attracted, is concerned, as discussed earlier, this Court already concluded that the plea of oral partnership was not proved by plaintiff. Hence, there is no fiduciary relationship between the plaintiff and the 1st defendant.
The plaintiff cannot seek a declaration that he is the co-owner of the property and for consequential relief of partition and permanent injunction in view of the specific bar contained under Section 4 of the Act.
This Court comes to a conclusion that the suit is barred by Section 4 of Prohibition of Benami Property Transaction Act even assuming the plaintiff proved that he contributed for purchase of the suit property in the name of the first defendant. Therefore, issues No.3 and 4 are answered against the plaintiff.
Relief of declaration and partition as prayed for denied - The plaintiff is not entitled to any relief and the suit is dismissed.
-
2023 (6) TMI 914
Benami transaction - burden of proof - principle of preponderance of probability that although the suit property was purchased in name of Wife but the consideration money was paid or provided by her husband (deceased) - whether the transaction i.e. the purchase of suit property under registered deed of sale by Wife is benami transaction? - Dispute raised by the son to claim 1/3 share in the property - HELD THAT:- As Court is required to bear in mind the well-settled principles to the effect that the burden of showing that a transfer is a benami transaction always lies on the person who asserts it. In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction.
Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Sailendra paid the consideration money, the plaintiff must further prove that Sailendra really intended to enjoy the full benefit of the title in him alone.
In the case before us, Sekhar could not bring any evidence even to show what was amount of consideration money and how the consideration money was paid and how the suit property was purchased and even he could not prove who paid the consideration money. He could not produce any document relating to the suit property.
Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone. Judgments relied upon by the appellant in spite of having unquestionable value of the proposition laid down therein, shall not come in aid of the appellant in the factual matrix of the case at hand.
We are inclined to hold that learned Court below has correctly held that Sekhar has failed to discharge his burden to prove that subject sale transaction is benami transaction and we have not found any wrong in the approach and decision of the learned Court below and we are of the view that judgment and decree impugned cannot be annihilated.
-
2023 (5) TMI 402
Constitutional validity - Amendment to Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 - retrospective or prospective effect - Attachment of property - Punishment of impresonment for offence - HELD THAT:- The issue is covered in the decision rendered by a 3-Judge Bench of this Court in UNION OF INDIA & ANR. VERSUS M/S. GANPATI DEALCOM PVT. LTD. [2022 (8) TMI 1047 - SUPREME COURT] where it was held as under:
a) Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution.
b) In rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary.
c) The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions.
d) In rem forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively.
e) Concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 25.10.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed.
f) As this Court is not concerned with the constitutionality of such independent forfeiture proceedings contemplated under the 2016 Amendment Act on the other grounds, the aforesaid questions are left open to be adjudicated in appropriate proceedings.
Petition disposed off.
-
2023 (5) TMI 349
Benami Transactions - Owner of joint family property and shares of the parties in various properties - validity of gift deed (a sham) - property purchased out of stridhana property - burden of prove - Rule of Succession - HELD THAT:- It is trite law that when a plea of benami is taken burden of proof lies on the person, who asserts so that the property is benami. In JAYDAYAL PODDAR (DECEASED) THROUGH HIS L. RS AND ANOTHER VERSUS MST. BIBI HAZRA AND ORS. [1973 (10) TMI 55 - SUPREME COURT] speaking for the Bench, Justice R. S. Sarkaria succinctly, laid down the principle of law that It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
Reliance also placed on BINAPANI PAUL VERSUS PRATIMA GHOSH AND ORS. [2007 (4) TMI 752 - SUPREME COURT] referring to BHIM SINGH (DEAD) LRS. VERSUS KAN SINGH [1979 (12) TMI 158 - SUPREME COURT] as well as the four indicia laid down therein. It was observed by the Supreme Court of India in this case that the four factors should have to be considered cumulatively. The Court in this case considered the relationship of the parties, namely, husband and wife primarily motive of the transaction i.e. security for the wife and seven minor daughters as they were not protected by the prevailing law and the legal position at that material point of time.
Coming to the present case it is averred in the original Plaintiff that the properties, namely, premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta were purchased by his grand-father Nani Gopal Dutt in benami, in the name of Rani Bala Dutt since deceased. Rani Bala Dutt was name lender only but actual ownership was that of Nani Gopal Dutt - Although it is stated by PW 1 that though it is not mentioned in the deed that property was purchased benami but they were aware of the fact that consideration money was paid by Nani Gopal Dutt. It is also stated by him that he was two years infant at the time of execution deed so personal knowledge cannot be put on him on the transaction. In course of cross-examination it is also conceded by him that he heard information from paternal uncle and thought consideration money relating to the documents was paid by Nani Gopal Dutt.
Original testimony of PW 1 states that he was two years old at the time of execution of deed in respect of the premises; he has no personal knowledge therefore. He derived his knowledge about execution and payment of consideration money from his paternal uncle. There is no other proof that consideration money was paid by Nani Gopal Dutt. It is specifically stated by PW 1 that Nani Gopal Dutt did not transfer any money to Rani Bala Dutt as they were husband and wife - There is no evidence to show by any cogency the circumstances prevailing at the time of purchase of the properties or any intention of Nani Gopal Dutt to purchase the properties in the name of his wife.
In absence of anything more the available evidence adduced on behalf of the original Plaintiff failed to establish, by preponderance of probabilities, that the property was purchased by Nani Gopal Dutt in the name of his wife in benami; that consideration money was paid by Nani Gopal Dutt and that Rani Bala is the only ostensible owner or name lender but the real owner of the Nani Gopal Dutt. Therefore, it is not established that the premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta were purchased by Nani Gopal Dutt in benami of his wife or that consideration money was provided by Nani Gopal Dutt.
In absence of any cogent evidence it cannot be decided that Rani Bala Dutt was a benamdar and the real owner was Nani Gopal Dutt in respect of the two premises namely 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta.
Property purchased by a woman with her stridhana - HELD THAT:- Property purchased by a woman with her stridhana and savings of the income of stridhana constitute stridhana according to all schools of Hindu Law, as discussed by Sir D. F. Mulla. It does not make any difference whether the property is immovable or not. There is no presumption that property of a woman who has no income should be actually that of her husband. This is the presumption which impressed too much the plaintiff’s witness - it is the conclusion that the two premises namely 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta were owned by Rani Bala Dutt as her stridhana property.
Rule of succession - HELD THAT:- There is no authority to suggest that the claim of the sons of a predeceased son is preferred to a son or daughter or are set on the same pedestal in matter of succession of stridhana property of a woman. When a son was living, the rights of the sons of a predeceased son do not come to the foreground or hold their sway. In nutshell, it is the conclusion that in absence of any daughter, it is the son who would inherit the stridhana properties of a woman. Therefore, the original Plaintiffs, being predeceased sons of the son of Rani Bala Dutt had no right, title or interest or right to succeed Rani Bala Dutt’s srtidhana properties. These properties namely premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta do not form part of joint properties as between the original Plaintiffs and the Defendant. The original Plaintiffs are not entitled to any partition in respect of the properties located at premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta. The original Defendant Paresh Chandra Dutt being the surviving son of Rani Bala Dutt inherited her stridhana properties and the properties located at 26, Sitaram Ghosh Street as well as 31, College Row, Calcutta.
Preliminary decree in respect of 8B, Nabin Pal Lane, Calcutta, 16, Beniatola Lane, Calcutta and 17, Beniatola Lane, Calcutta has already been drawn up. Since it is decided hereby that the properties located at premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta do not form part of the joint properties as between the original Plaintiffs and the Defendant and that these two later properties should not be subject to the present partition suit, no further preliminary decree need to be drawn up - the suit should be fixed for hearing on the report of the Partition Commissioner and argument for passing final judgment.
Fix 10/03/2023 for argument.
-
2023 (5) TMI 267
Hindu Undivided Family - Rejection of plaint under Order VII Rule 11 D of the Code of Civil Procedure - rejection of plaint sought on the ground that from plain reading of the plaint, it will appear that the suit property is purchased in the name of defendant, namely, Anpurna Devi (original petitioner), the suit is barred by the provision of Benami Transactions (Prohibition) Act, 1988 as well as barred under Hindu Law and the plaintiffs have got no cause of action.
HELD THAT:- Sub-section 3 of Section 4 will not be applicable where the person in whose name the property is held is co-parcener in any Hindu Undivided Family and property is held for the bona fide of the co-parceners in the family. It is the case of the defendant that she was also a co-parcener. It is settled principle of law that a female member is never considered as co-parcener in a Hindu Undivided Family.
In the case of NAND KISHORE MEHRA VERSUS SUSHILA MEHRA [1995 (7) TMI 64 - SUPREME COURT], the Hon’ble Supreme Court has held that if the property is standing in the name of wife, the provision under Section 4 will not be applicable because it is saved under Section 3 of the said Act. However, it may be mentioned that the claim of the plaintiffs is that the property is the joint family acquisition.
In view of the aforesaid settled principle of law, even after the property is purchased by the husband in the name of the wife the onus/burden is on the husband to draw that the property was purchased not for the benefit of the wife.
Further, the question whether the property is self-acquired property or joint family property is purely a question of fact and that cannot be agitated in Order VII Rule 11 of the Code of Civil Procedure.
The plaintiffs have asserted for permanent injunction for restraining the defendant from alienating the suit property especially by defendant, namely, Anpurna Devi (original petitioner). It is, therefore, obvious that the plaint could not have been rejected as prayed by the defendant under the provision of Order VII Rule 11 of the Code of Civil Procedure especially with regard to first relief regarding the declaration of joint family property.
This Court, therefore, does not find that the lower Court below has committed error of jurisdiction and illegality in passing the impugned order - this Civil Revision application is dismissed.
-
2023 (5) TMI 266
Cancellation of gift deed in respect of the suit schedule property - perpetual Injunction restraining respondents from interfering with the suit schedule property - suit claim is barred under Section 4 of The Benami Transactions (Prohibition) Act, 1988 or not? - HELD THAT:- It is to be seen whether the suit claim of respondent No.1 falls within the purview of Section 4 of the Act. As per the entire averments of the plaint, it is manifest that respondent No.1 has purchased the suit schedule property in the name of his mother and subsequently, she executed registered release deed in favour of the respondent No.1-plaintiff on 24.07.2013 severing her rights over the suit schedule property and declared him as the beneficiary and the rightful owner, as all the charges, taxes were borne by him and paid entire sale consideration in respect of the same. In view of the said pleadings, it can be said that the contention of learned counsel for the petitioner that the suit claim is barred under Section 4 of the Act is not tenable.
The suit claim is not barred under Section 4 of the Act. Therefore, the plaint cannot be rejected under Order VII Rule 11 (d) read with Section 151 of C.P.C. - the Civil Revision Petition is dismissed.
........
|
9911796707
