|
Advanced Search Options
Benami Property - Case Laws
Showing 61 to 80 of 336 Records
-
2023 (4) TMI 1386
Prohibition of Benami Properties Transactions - Scope of Benami Tansactions (Prohibition) Amendment Act, 2016 - HELD THAT:- On perusal of the order of the Adjudicating Authority and the notice of the Initiating Officer, it is case of alleged benami transaction prior to the date of coming into force of the Amendment Act, 2016. It could not be disputed by the respondents
We find that the appeal is covered by the Judgement of Ganpati Dealcom (P.) 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.
-
2023 (4) TMI 1038
Prohibition of the right to recover property held benami - fiduciary relationship - real owner - As pleaded plaintiff had accepted before the survey Officer that although the land was purchased in her name but the same was purchased by her husband Rameshwar and had accordingly requested the authorities to record the name of her son i.e. Chandrashekhar (the deceased husband of the petitioner no.1 and the father of the petitioner nos.2 to 6) - trial Court by the impugned order had rejected the said pleadings on the ground that they have been taken after the commencement of the trial and they are based on the pre-existing facts - scope of sub section (3) of section 4 of the Prohibition of Benami Property Transactions Act - HELD THAT:- As the proposed amendment was that the plaintiff had made statement before the survey authorities that although the property was purchased in her name but in fact it was purchased by her husband Rameshwar Chawda
In view of section 4 of the Act, it is clear that such defence is not permissible. The remaining proposed amendment is based upon the so called statement made by the plaintiff that she is not the owner but her husband is the owner although the property was purchased in her name. Any pleading which is barred by any law cannot be allowed to be incorporated by amendment.
Accordingly, this Court is of the considered opinion that the trial Court did not commit any mistake by rejecting the proposed amendment. As no jurisdictional error was committed by the trial Court, accordingly, the petition fails and is hereby dismissed although on different grounds.
-
2023 (4) TMI 977
Benami Transaction or not - properties purchased by the father in the name of mother - Plaintiff contended that, her mother was only a benami for her father, and that she did not have any right in her to execute Exts.P3 and P8 settlement deeds. - suit is laid for partition of three items of properties which are described in Schedules A to C in the plaint and plaintiff also seeks a declaration that the two settlement deeds that her mother had executed pertaining to Schedule A and Schedule B items of properties are null and void - HELD THAT:- The person in whose name stamp papers were purchased, more so when they are spouses, can never be considered as a strong piece of evidence to compel an inference conclusively the intent behind a purchase. This Court considers that it is far too inadequate to prove benami.
The evidence as has been made available does not preponderate a possibility that the properties purchased under Ext. D-1= Ext.P.17 and Ext.D-2 = Ext.P.18 in the name of Rajeswari Bai are not held benami by her for her husband Bapanna Rao, but on the contrary they suggest that they are the personal properties of Rajeswari Bai. Issue No:1 is therefore, decided against the plaintiff. Consequently, there is no need to consider the Additional Issue on the tenability of pleading benami in the face of statutory bar under the Benami Transaction (Prohibition) Act, 1988 or its current version.
Validity of settlement deed - exclusion of plaintiff - mental status of Monther for execution of deed - right of the plaintiff over property under the schedule A category - HELD THAT: - It is true that the plaintiff too has not examined herself. But non-examination of the first defendant is critical since she alone could provide the facts pertaining to the mental status of Rajeswari Bai at the time of Exts.P.3 and P.8, more so when the mental state of the 2nd defendant is suspect. They at least could have examined any physician who had treated Rajeswari Bai with supporting medical records but that was ignored.
This Court now has little option than to hold that Rajeswari Bai would not have been in sound mental state sufficient enough to understand what she was doing and that Exts.P.3 and P.8 are not the product of her free will. Issues 3, 5 and 6 are decided accordingly.
It may have to be stated that the basic theory which the defendants plead for justifying the execution of settlement deeds is not without any merit. After all, the first defendant has been caring both her ailing mother and brother besides caring her nephews, and given the circumstances, it would be only natural for Rajeswari Bai to execute the settlement deeds in their favour, but the point is not about the availability of circumstances for justifying the exclusion of plaintiff and her branch from the settlement deeds, but it is about her mental capacity to execute them. Here the defendants are seen wanting in their efforts when they chose to withhold the first defendant from being examined as a witness.
It has come on record that in the 'A' schedule property, the defendants have put up a substantial structure at considerable expenses. Therefore, they must have a fair chance of retaining the same by adjusting the equities vis-a-vis their shares in other two schedules of properties. However, they may have to wait for another day when final decree is passed.
Order:
Ext.P3 settlement deed executed by Rajeswari Bai are set aside as null and void and Plaintiff's 1/3 share in all the schedules of suit properties are hereby declared.
-
2023 (4) TMI 882
Benami Transactions - family arrangement - exception in Section 4(3)(a) of the Benami Act - “Jurisdiction of the Court to entertain” under Section 9A of the CPC - Suit filed as barred under the provisions of the Benami Transactions (Prohibition) Act, 1988) - Whether the suit is barred by limitation ? - Scope of preliminary issue under Section 9A - requirement of evidence to decide the preliminary issues - The learned Single Judge observed that the issues of limitation and benami were mixed questions of fact and law requiring evidence - whether plaint was ex-facie barred by limitation on the basis of the admissions in the plaint itself? - HELD THAT:- The bar of Benami under Benami Act requires examination of factual aspects including the exceptions to Section 2(9) and 4(3). The question whether a transaction is Benami or not is therefore one of fact requiring evidence.
There is, therefore, no dispute that limitation and benami transactions being mixed questions of fact and law, require evidence. That being the position, such questions in view of paragraphs 50, 54, 56 of Nusli Neville Wadia vs. Ivory Properties [2019 (10) TMI 1314 - SUPREME COURT] cannot be decided under Section 9A.
In view of the law settled in the case of Nusli Neville Wadia vs. Ivory Properties (supra), we have no doubt in holding that, in the facts of this case, limitation and benami transactions are not covered within the ambit of “jurisdiction of the Court to entertain” under Section 9A of the CPC and cannot be decided as preliminary issues under Section 9A of the CPC. Section 9A only deals with issues of whether the Court does or does not have jurisdiction to entertain a suit.
Respondent’s interpretation is misplaced. A plain reading of the order clearly indicate that although the learned Single Judge kept importuning the Appellant to lead evidence as the same was necessary to decide the issues but the appellant refused to do so. There is a difference between refusing to lead evidence and evidence not being required to be led. In the facts of the case as borne out from the orders, the evidence was necessary to be led to decide the preliminary issues. Just because now that the Appellant can raise a point in the light of the Apex Court decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra), objection cannot be raised to state that decision on preliminary issues on the basis of admission and pleadings ought to be considered without having to lead evidence. It is also evident from the above order that the Plaintiff, the Appellant herein, did not wish to lead evidence on either of the two preliminary issues.
Therefore, whether or not the appellant gave consent or elected to have the preliminary issues decided, that cannot come in the way of the law settled in the case of Nusli Neville Wadia vs. Ivory Properties (supra) being applied. The law laid down in Nusli Neville Wadia vs. Ivory Properties (supra) was always the law and the Appeal/ impugned order will have to be tested on that basis.
The present Appeal being tested on the touchstone of Section 9A in the light of the decision in the case of Nusli Neville Wadia vs. Ivory Properties (supra), and [2015 (9) TMI 1606 - BOMBAY HIGH COURT] clearly holding the requirement of evidence to decide the preliminary issues will have to be set aside and is hereby set aside.
-
2023 (3) TMI 1552
Provisional attachment order passed u/s 24(3) of the Prohibition of Benami Property Transactions Act - Petitioners’ Counsel has stated that the date of the transaction as reflected in the order impugned was prior to 25th October, 2016 and therefore, the proceedings ought to be quashed - HELD THAT:- Respondents, as admitted that the dates of the transactions in regard to the Benami properties was indeed before coming into force the Benami Transactions (Prohibition) Amendment Act, 2016. The only objection raised in the present case is that the review petition stands filed which is pending hearing before the Apex Court. It is further stated that in view of the pendency of the Review Petition, no order has been passed in the present case.
This Court by virtue of the Judgment and Order passed in Mahanti Traders Private Limited V/s. Union of India & ORs [2022 (12) TMI 1551 - BOMBAY HIGH COURT] considering the directions of Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT] the provisional order of attachment and order of reference had been quashed. We see no reason not to adopt similar course (supra).
-
2023 (3) TMI 1448
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - HELD THAT:- Both the parties jointly submit that the issue of legality of the aforesaid notice is covered in favour of the petitioner, by a judgement of the Hon’ble Supreme Court which was followed by this Court in order in Deific Abode LLP – Vs – Union of India & Ors [2022 (11) TMI 1438 - CALCUTTA HIGH COURT]
Considering the joint submission of the parties that the issue of legality of the aforesaid notices are covered by the aforesaid order of this Court in favour of the petitioner, this writ petition is disposed of by setting aside the impugned notice under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are also quashed and all legal consequence will automatically follow.
-
2023 (3) TMI 1447
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - HELD THAT:- Both the parties jointly submit that the issue of legality of the aforesaid notice is covered in favour of the petitioner, by a judgement of the Hon’ble Supreme Court which was followed by this Court in order in Deific Abode LLP – Vs – Union of India & Ors [2022 (11) TMI 1438 - CALCUTTA HIGH COURT]
Considering the joint submission of the parties that the issue of legality of the aforesaid notices are covered by the aforesaid order of this Court in favour of the petitioner, this writ petition is disposed of by setting aside the impugned notice under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are also quashed and all legal consequence will automatically follow.
-
2023 (3) TMI 1446
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - HELD THAT:- Both the parties jointly submit that the issue of legality of the aforesaid notice is covered in favour of the petitioner, by a judgement of the Hon’ble Supreme Court which was followed by this Court in order in Deific Abode LLP – Vs – Union of India & Ors. [2022 (11) TMI 1438 - CALCUTTA HIGH COURT]
Considering the joint submission of the parties that the issue of legality of the aforesaid notices are covered by the aforesaid order of this Court in favour of the petitioner, this writ petition is disposed of by setting aside the impugned notice under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are also quashed and all legal consequence will automatically follow.
-
2023 (3) TMI 1391
Benami transaction - As argued petitioner submits that, without providing any opportunity to the petitioner, the first respondent has passed the impugned order, which is in violation of the principles of natural justice - respondent submits that, initially, notice was sent to the petitioner and the petitioner appeared before the Initiating Authority and petitioner has given four addresses, from which, all are incorrect address. Due to which, the notices sent to the petitioner were returned with an acknowledgment “no such person”. Hence, the present impugned order was passed in the absence of the petitioner - HELD THAT:- This Court is of the view that, expressing any opinion on the merits of the case would adversely affect the interest of the petitioner as well as the respondents. This Court has to see whether any opportunity was given to the petitioner before passing the impugned order. A perusal of the impugned order reveals that, the petitioner had not appeared before the adjudicating authority. In his absence, the present impugned order is passed, which is in violation of principles of natural justice.
In view of the above, the impugned order passed by the first respondent u/s 26(3) of the Prohibition of Benami Property Transactions Act, 1988, is set aside and the matter is remitted back to the first respondent for fresh consideration.
-
2023 (2) TMI 1102
Prohibition of Benami Property Transactions - attachment and confiscation of properties which were admittedly acquired prior to the enforcement of the Benami Transactions (Prohibition) Amendment Act, 2016 - HELD THAT:- These petitions would be liable to be allowed in light of the recent decision rendered in Union of India & Anr. v. Ganpati Dealcom Pvt.Ltd. [2022 (8) TMI 1047 - SUPREME COURT]
Continuation of only the civil provisions u/s 4, etc. would mean that the legislative intention was to ensure that the ostensible owner would continue to have full ownership over the property, without allowing the real owner to interfere with the rights of benamidar. If that be the case, then without effective any enforcement proceedings for a long span of time, the rights that have crystallized since 1988, would be in jeopardy. Such implied intrusion into the right to property cannot be permitted to operate retroactively, as that would be unduly harsh and arbitrary.
As we hold 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.”
In light of the aforesaid enunciation of the law on the subject, it is evident that the impugned proceedings cannot be sustained. Accordingly, and in view of the law as declared by the Supreme Court, the instant writ petitions are allowed.
-
2023 (2) TMI 385
Prohibition of Benami Property Transactions - Period of limitation - Petitioner, has filed an application for proposed amendment in the counter claim as rejected on ground of limitation - HELD THAT:- Once a suit is filed only then Court can examine whether pleadings made in the suit is barred by law or not and suit is to be dismissed or not. A person cannot be stopped from filing the suit. Bar is to be examined subsequently.
In view of aforesaid facts and circumstances of the case, it is found that trial Court has committed an error in dismissing the application filed under Order 6 Rule 17 of CPC on grounds of delay and on merits of the contents of application, therefore, order dated 20.09.2021 is quashed. Trial Court is directed to permit the petitioner to incorporate the said amendment in the counter claim.
-
2023 (2) TMI 384
Benami transaction - whether the present transaction was benami or not? - HELD THAT:- Parties are ad idem that the suit property in question was purchased in the name of petitioner from the funds sent to the petitioner by husband of respondent No.1.
A bare reading of Section 4 shows that in order to establish that the present Suit is prohibited thereunder, or falls in the exception carved out under Section 2(9) of the Benami Act, evidence is required to be led. It is an established position in law that under Order 7 Rule 11 CPC, only averments made in the plaint have to be seen and nothing else can be considered while adjudicating upon such an application. In order to establish that the suit property is benami, and it was purchased out of funds sent by son of the petitioner, and it falls under the prohibition of Section 4, or falls in the exception under Section 2(9), evidence will have to be led. As such, in the present case, plaint could not have been rejected under Order 7 Rule 11 CPC.
Thus it is clear that there is no error in the order impugned herein. Accordingly, find no merit in the present Revision Petition and the same is hereby dismissed.
-
2023 (2) TMI 219
Benami properties purchased - Whether the respondent had established that the properties were purchased in the name of the appellant from his funds? - HELD THAT:- Respondent negotiated the transaction and paid the sale consideration. P.W.6 is the lessee in the agricultural land bought in the name of the appellant and he would also state that he had been paying rents to the respondent. Though the appellant had claimed that the properties were purchased from the funds given by the father, she had not filed documents to substantiate the said claim. Further, the evidence of the appellant and D.W.2-her father appear to be improbable for one more reason.
The details of the properties and the nature of expenses and the amount of expenses incurred for purchase of the property, paying stamp papers and for construction, could not be stated by both the appellant and her father. Further, the appellant's father has three daughters. There is nothing to suggest as to why he chose only the appellant to purchase the properties in her favour. Therefore, we are of the view that the respondent had established that he had purchased the property from his funds in her name. Hence, for the above said reasons, we hold Point No.1 in favour of the respondent.
If the properties were purchased from the funds of the respondent, whether the respondent had rebutted the statutory presumption u/s 3(2) of the Benami Transactions (Prohibition) Act, 1988 that the purchase of properties in the name of the wife is presumed to be for her beneficial interest? - It is the case of the appellant that merely because the respondent was managing properties and paying taxes, it cannot be inferred that the properties were not purchased for the beneficial interest of the appellant. We are in agreement with the said proposition. It is the matter of common knowledge that in an Indian family, the husband normally looks after the property which is in the name of the wife. This alone cannot determine that the husband bought the property for his interest benami in the name of his wife. The Hon'ble Apex Court in [2015 (10) TMI 2780 - SUPREME COURT] and [1963 (12) TMI 31 - SUPREME COURT] had held that merely because the husband is managing the property, it cannot be held that the properties were purchased for his benefit.
We are of the view that the reason given by the respondent for purchase of the property in the name of the wife was to avoid wealth tax, cannot be countenanced. An illegality cannot be endorsed by the Court. Evasion of the tax is an illegality and that reason cited by the respondent cannot be accepted. We agree with the view taken by this Court in [2003 (3) TMI 777 - MADRAS HIGH COURT] (cited supra) on this aspect.
Whether the respondent has proved that the property was purchased by him for his interest in the name of the appellant and not for the beneficial interest of the appellant? - It is well established that the statutory presumption can be rebutted either by adducing independent evidence or by showing inherent improbabilities in the case of the person who is claiming benefit of presumption. It is not the case of the appellant that the property was purchased by the respondent for her beneficial interest. On the other hand, it is her case that she purchased the property with the use of funds provided by her father. As we have held already, the said version of the appellant is improbable. On the other hand, the respondent has clearly established that he had bought the property in the name of the appellant. While that being the case, the plea of the appellant that the respondent bought the property only for her beneficial interest, is a contrary stand. She herself has taken a stand which is contrary to the statutory presumption. We may also refer to the judgment cited by the appellant to impress upon us the guidelines issued by the Hon'ble Apex Court to determine whether particular transaction is benami or not.
These are the principles laid down not only for purchase of the property in the name of the wife but for determining whether the transaction is benami bought in the name of the third parties as well. But the real issue in this case, as stated earlier, is whether the presumption under Section 3(2) of the said Act has been rebutted by the respondent. We find that once the appellant herself has taken a stand that it was her own property purchased from the funds given by her father, which is now held to be improbable by us, the presumption under Section 3(2) of the Act cannot enure in her favour. We also accept the stand taken by the respondent that the properties were purchased in the appellant's name only because he felt that it would bring luck to him as admittedly 'Felshia' means luck. Therefore, we hold Point No.2 in favour of the respondent.
We find no reasons to interfere with the Judgment of the Trial Court. Accordingly, the Appeal Suit is dismissed.
-
2023 (1) TMI 1335
Benami transaction - Beneficial owner of property - Provisional attachment order - scope of Amendment Act of 2016 - Amendment to Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 - HELD THAT:- The issue raised in these petitions is squarely covered by the judgment of this Court in Union of India & Anr. vs. Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT] as held Section 2 (9) (A) and Section 2 (9) (C) are substantive provisions creating the offence of benami transaction. These two provisions are significantly and substantially wider than the definition of benami transaction under Section 2 (a) of the unamended 1988 Act. Therefore, Section 2 (9) (A) and Section 2 (9) (C) can only have effect prospectively. Central Government has notified the date of coming into force of the Amendment Act of 2016 as 01.11.2016. Therefore, these two provisions cannot be applied to a transaction which took place prior to 01.11.2016.
As petitioners contends that review of the said judgment is pending.
Since as of now the issue stands covered by the judgment in the case of Ganpati Dealcom Pvt. Ltd.(supra), we dismiss these special leave petitions for the same reasons and ground.
-
2023 (1) TMI 1327
Scope of Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 - whether has a prospective effect? - As decided in M/S. GANPATI DEALCOM PVT. LTD.[2022 (8) TMI 1047 - SUPREME COURT] 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. 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. The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions.In rem forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively.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.
HELD THAT:- UPON perusing papers the Court made the following
Delay condoned.Application for oral hearing of the review petition is allowed.
List the review petition for open Court hearing on 15 March 2023 at 3.30 pm.
-
2022 (12) TMI 1551
Benami transaction - provisional order of attachment - HELD THAT:- It is stated that during the pendency of the present petition, and in the interregnum, the Apex Court in the case of Union of India & Anr. Vs. Ganpati Dealcom Pvt. Ltd. [2024 (10) TMI 1120 - SC ORDER (LB)] has, inter-alia, held that sections 3 and 5 of the Benami Transactions (Prohibition) Amendment Act, 2016 as having only prospective operation.
Apex Court has directed the authorities not to initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to coming into force of the Act, 2016, i.e., 25-10-2016 and that as a consequence of the above declaration, all such prosecutions or confiscation proceedings would stand quashed.
In the present case, the alleged date of transaction, as contained and reflected in the show cause notice, dated 29th January, 2019 would show the same as ‘29th March, 2010’.
As admitted by the learned counsel for the parties that the case of the petitioner is squarely covered by the Apex Court judgment in the case of Ganpati Dealcom Pvt. Ltd [supra] and therefore, all criminal prosecutions and attachment orders would have to be withdrawn by the authorities. Provisional order of attachment dated 26th April, 2019, and order of reference dated 01st May, 2019 shall stand quashed.
-
2022 (12) TMI 990
Benami transaction - joint Hindu family of late karta possessed several immovable properties at Chennai, Madurai and Kumbakonam, apart from the properties owned in Malaysia - Entitlement to legal heirs of late karta of JHF - After the death of plaintiff's father, first defendant started managing the joint family properties in India and in Malaysia and was maintaining the entire accounts - Whether the suit properties are the joint family properties or absolute properties of late P.L.Ramanatha Chettiar ? - HELD THAT:- From this Will, it is clear that the interest in the partnership business and the properties movable and immovable, were bequeathed to his sons and daughters. There is absolutely no mention about the availability of properties which were acquired by him from his ancestors. It is a Will having no description of the properties to be shared. Similarly in Ex.D4 Will, there is no description of the properties sought to be disbursed. Through Ex.D11, whatever the properties possessed by L.P.L.Palaniappa Chettiar, were bequeathed to his sons and the legal heirs of the deceased son.
Grievances of the plaintiff is that the first defendant has not acted as per the conditions/clauses in the Will - Because of the first defendant's indifferent attitude, the second defendant, their mother, had to borrow heavy loan to celebrate her marriage. She was not provided with the customary gifts and presents from time to time as per the Chettiar Community. Marriage expenses, gifts and dowry were not properly taken care. Rs.2,00,000/- and jewelleries were also not given.
Plaintiff's claim that the first defendant had not acted in compliance to the conditions of the Will is one thing, and the challenge made to the very execution of the Will on the ground that the suit properties are ancestral joint family properties and therefore, the Will executed by their father P.L.Ramanathan @ P.L.Meenatchi Sundaram will bind only in respect of his share and will not extend to whole of the properties is another thing.
There is unimpeachable evidence to show that share in item nos.1 and 2 of the suit properties was bequeathed to plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram through Ex.D11 Will. We have also seen that the properties bequeathed under D11 Will were self acquired properties of L.P.L.Palaniappa Chettiar . When the self acquired property of an individual is bequeathed to his son, son acquires the property only as self acquired property and not as ancestral property.
As relying on GOVINDBHAI CHHOTABHAI PATEL AND ORS. VERSUS PATEL RAMANBHAI MATHURBHAI [2019 (9) TMI 1681 - SUPREME COURT] held the self acquired property gifted by a father to his son will not be treated as ancestral property, but only as a self acquired property.
Therefore, this Court finds that shares which the plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram got under the Ex.D11 Will, would be treated as his self acquired property and in respect of his self acquired property, he is entitled to bequeath the property through a Will to his son, namely, the first defendant and the first defendant got the properties as self acquired properties. Therefore, through Ex.P4 Will, plaintiff's father P.L.Ramanathan @ P.L.Meenatchi Sundaram had excluded his wife, plaintiff and second defendant from claiming any share in his properties, especially, item nos.1 & 2 of the suit properties. Thus, this Court finds that the plaintiff is not entitled to claim share in the suit properties claiming that the suit properties are the ancestral joint family properties and she is a co-parcener. Thus, this issue is answered that the suit properties are the self acquired and absolute properties of late P.L.Ramanatha Chettiar and not the joint family properties.
Whether there are and were businesses of the family at Kumbakonam run under the name and style of Palaniappan Bankers and Palaniappa Jewellers and whether the first defendant is liable to account for the profits in the said business ? - Though it is claimed in the pleadings that there was business of family at Kumbakonam run under the name and style of Palaniappan Bankers and Palaniappa Jewellers and the first defendant was liable to account for the provisions in the said business, no evidence is produced by either side to show the running of the businesses. Therefore, this Court finds answer to this issue in negative.
Whether the plaintiff is in joint possession of the suit properties ? - Whether the Court Fees paid under the Section 37(2) of Court Fees Act is maintainable ? - The evidence available in this case shows that the plaintiff is not in physical possession of any of the suit properties. She resides in U.S.A. and conducts this case through her power of attorney PW1. There is also evidence to show that there are about 272 residential flats in item no.2 of the suit properties. Therefore, this Court finds that the plaintiff is not in possession of the suit properties and Court fee paid under Section 37 (2) of the Court fees Act claiming to be in joint possession is not correct for issue nos.5 & 6.
Whether sale in the name of the ninth defendant is hit by lis pendens? - Before purchasing this property, it is seen that Exs.D2, D10 paper publications were made in the newspaper. After purchasing item no.2 of the suit properties, 8th and 9th defendants had entered into Ex.D4 agreement for sale. It is now claimed by the 9th defendant that 272 residential units had been constructed in the land. The learned counsel for the 9th defendant submitted that the 9th defendant's interest has to be protected as 9th defendant is a bonafide purchaser for value after taking necessary steps by issuing paper publications. No one objected to the purchase by 9th defendant. Ex.D3 sale deed was executed on 10.01.2008 during the pendency of the suit and therefore, it is no doubt that this sale in favour of the 9th defendant is hit by lis pendens. The right of pendente lite purchaser in item no.2 of the suit properties is subject to the right available to the owner of the property. Accordingly, this issue is answered.
Whether the suit is barred for non-joinder of proper and necessary parties ? - Now it is found that the claim of partition in item no.1 of the suit properties by defendants 5 to 7 is barred by the Prohibition of Benami Property Transactions Act, 1988. Therefore, the other legal heirs of P.L.Palaniappa Chettiar are not proper and necessary parties to this suit. Similarly, the sale in favour of the 8th defendant and subsequent construction of flats by the 9th defendant had taken place after the institution of the suit. Therefore, the impleadment of the buyers of the flats is not necessary for the reason that the sale transaction is hit by the principle of lis pendens and therefore, they are not proper and necessary parties. Accordingly, this issue is answered.
Whether the suit is barred for partial partition ? - Even as per the admitted evidence of PW1, he claims that there are certain other joint family properties, but they are not shown as suit properties. Even in respect of item nos.3 to 5 of the properties, there is no evidence produced to show that these properties are in possession and enjoyment of the family. The defendants have also not given the details of the properties, which are not included. Therefore, it is held that the suit is not hit by partial partition.
Suit barred by limitation - The plaintiff has filed the suit presuming that the suit properties are joint family properties and as a co-owner, she is entitled for partition. She had issued Ex.P5 notice before the institution of the suit. There is no plea of ouster taken by the defendants. She has subsisting right as per Ex.D11 Will. Therefore, this suit cannot be held as barred by limitation.
Apart from the claim of partition as co-parcener, the plaintiff is also entitled for partition as per clause 4(g) of Ex.D11 Will. - The executors and trustees, namely, R.M.Thenammai and Valliappan @ Palaniappan @ Sinnavalieppan A/L Valliappa Chettiar have every right to enforce the terms of the Will as intended by the testator. Though this Will is not useful to advance the case of the plaintiff for partition, this Will is certainly useful to enforce her claim under the Will, if the executors fail to exercise their duties, responsibilities and powers.
As found that item nos.1 & 2 of the suit properties are the self acquired properties of the first defendant through Ex.P4 Will executed by his father P.L.Ramanathan @ P.L.Meenatchi Sundaram and therefore, this Court finds that the plaintiff is not entitled for the relief of partition or for that matter any other relief.
Since the defendants 5 to 7's claim is barred by the provisions of the Prohibition of Benami Property Transactions Act, 1988, they are also not entitled for claiming partition of their 3/8 share in item no.2 of the suit properties as a counter claim. The suit as well as the counter claim of the defendants 5 to 7 are dismissed.
-
2022 (12) TMI 779
Prohibition of Benami Property Transactions - attaching the properties of the petitioners provisionally until passing of the order by the Adjudicating Authority u/s 26 (3) of the Act - primary contention of the petitioners is that an incorrect and illegal conclusion has been arrived at by the authorities that the petitioner in each of the three cases were benami holders of property or its beneficiary - grounds of violation of the principles of natural justice have also been taken as, according to the petitioners, their replies were not properly considered and they were not given an effective opportunity to defend themselves - Allegation of recording the statement of the petitioners in duress has also been made - HELD THAT:- Though contentious issues have been raised in these petitions which require elaborate deliberations, this Court is of the opinion that in view of the clear law laid down by the Hon’ble Supreme Court in the case of Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT] such deliberations are not at all required, as the same would otherwise, cause prejudice to either of the parties.
As in view of the undisputed fact that the transactions in question in these cases being of a period prior to 2016, the amendment of the Act made in the year 2016 would not be applicable and therefore, the impugned notices under Section 24 of the Act are not sustainable in law. Accordingly, the impugned notices are set aside and the writ petitions are allowed.
-
2022 (12) TMI 568
Prohibition of Benami Property Transactions - provisional order of attachment - HELD THAT:- As it is evident that this Court took the view that Section 2(9)(A) and 2(9)(C) of the Benami Property Act inserted by the Amendment Act of 2016 are prospective in nature because these two provisions have significantly and substantially widened the definition of ‘benami transaction’ than as was there in the unamended Benami Property Act of 1988.
Taking note of the fact that Central Government had notified the date of coming into force of the Amendment Act of 2016 as 01.11.2016, this Court held that these two provisions cannot be applied to a transaction which took place prior to 01.11.2016. In that case, the transaction was dated 14.12.2011. Therefore, the show cause notice, provisional attachment order as well as the adjudicating order were declared null and void being without jurisdiction and consequently, quashed.
In Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT] which went to the Supreme Court from a decision of the Calcutta High Court, the question which was considered by the Supreme Court was whether the Benami Property Act as amended by the Amendment Act of 2016 has a prospective effect? While examining this question, Supreme Court went into the constitutionality of the original Act i.e., Benami Property Act.
Supreme Court came to the conclusion that Section 3 (criminal provision), Section 2(a) (definition clause) and Section 5 (confiscation proceedings) of the Benami Property Act are overly broad, disproportionately harsh and without adequate safeguards. Though such provisions were in a dormant condition, nonetheless, Supreme Court declared Sections 3 and 5 of the Benami Property Act as unconstitutional from inception.
Supreme Court has declared that the Amendment Act of 2016 is not merely procedural but prescribes substantive provisions. Therefore, concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to coming into force of the 2016 Amendment Act i.e., 25.10.2016. As a consequence, all such transactions or confiscation proceedings prior to 25.10.2016 shall stand quashed. Supreme Court has also clarified that in rem forfeiture provision under Section 5 of the Amendment Act of 2016 being punitive in nature can only be applied prospectively and not retroactively.
In view of the finality of the law declared by the Supreme Court, the provisional attachment order dated 27.12.2021 cannot be sustained. Accordingly, the same is hereby set aside and quashed.
-
2022 (11) TMI 1438
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - constitutionality of Sections 3 and 5 of the 1988 Act - HELD THAT:- The issue involved in these writ petitions are covered in favour of the petitioners by a recent judgment in the case of Union of India & Anr. Vs. M/s. Ganpati Dealcom Pvt. Ltd [2022 (8) TMI 1047 - SUPREME COURT] as held that Section 3(criminal provision) read with Section 2(a) and Section 5(confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place. Such provisions were still-born law and never utilized in the first place. In this light, this Court finds that Sections 3 and 5 of the 1988 Act were unconstitutional from their inception. Thus WP are disposed of by setting aside the impugned notices under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are quashed and all legal consequences will automatically follow.
........
|
9911796707
