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2020 (5) TMI 70 - HC - Benami PropertyBenami transaction - Prohibition of the right to recover property held benami - Holding suit premises in a fiduciary capacity - Suit for partition and permanent injunction instituted against the respondents/defendants claiming that they are collectively entitled to 1/10th undivided share in the residential premises - three appellants/plaintiffs are the successors-in-interest (widow and children) of late Shri Anil Kumar Dhir, brother of the respondents No.1 to 7 and the deceased respondents No.8 and 9 - HELD THAT:- In the present case, the stage of evidence had not even been arrived at. In fact, only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No.1 stood in a ‘fiduciary capacity’ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act. On a bare reading of the averments made in the plaint read in conjunction with the documents placed on record, we are of the opinion that sufficient material facts have been disclosed requiring determination only after a proper trial. At the stage of deciding an application moved by the respondents under Order VII Rule 11 CPC, there was no occasion for the court to have taken pains to interpret and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents. In the instant case where it has been asserted that the suit premises was purchased in the name of the respondent No.1, but from the exclusive contributions made by late Shri R.P. Dhir and therefore in reality, was meant for the benefit of all the family members, the real test would be the source from which the purchase money came from, the nature and status of possession of the property after its purchase, the motive if any for giving the transaction a Benami colour, the position of the parties and their inter se relationship, between the appellants/plaintiffs and the respondent No.1, the overall conduct of the parties in dealing with the suit premises after it was acquired, etc. [Refer: Jaydayal Poddar (Deceased) through LRs and Anr. vs. Mst. Bibi Hazra and Ors. [1973 (10) TMI 55 - SUPREME COURT] - It would therefore be imperative to weigh the evidence in the instant case for the court to conclusively decide as to whether the appellants/plaintiffs can succeed in their claim that the respondent No.1 is holding the suit premises in a fiduciary capacity, for the benefit of all the family members. Present appeal succeeds. The impugned judgment is quashed and set aside. The suit is restored to its original position for being taken further from the stage at which the impugned judgment was passed.
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