TMI Blog2017 (10) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... such case was argued on behalf of the appellant/plaintiff in the court below that the suit property has been purchased in trust or by the defendant nos. 1 to 3 in a fiduciary capacity. Therefore, even second exception contained in Section 4(3) of the Benami Act is not available to the appellant/plaintiff. Trial court also rightly notes that after purchase of the suit property in the name of defendant nos. 1 to 3 by the sale deed dated 7.12.1959 there is no further act done by the late father Sh. Waryam Singh in the form of making of any Will or making of a declaration or drawing up of a document that the suit property will not vest with the defendant nos. 1 to 3 in the suit but will vest with the entire family. Accordingly, in opinion, the mere fact that the father Sh. Waryam Singh paid consideration of the suit property would not make the property as owned by the father, and more so because such a plea in fact would be a plea which will be barred by Section 4(1) of the Benami Act. Also find no admission that the suit property at Green Park was a family property and had to be divided between all the family members. In fact, if this was so then the earlier suit would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt appeal. Defendant no. 3 in the suit was Sh. Vinay Kumar Saini who expired during the pendency of the suit and was thereafter represented by his legal heirs and who are respondent nos. 6 to 8 in the present appeal. Reference to respondent nos. 6 to 8 would therefore include reference to defendant no. 3 or these respondents along with respondent nos. 1 to 4 will also be included in the general expression of defendant nos. 1 to 3 in the suit who filed a common written statement. 4. After pleadings were complete the trial court framed the following issues:- 1. Whether the suit is not barred by limitation? OPP 2. Whether the property bearing number D-16, Green Park, New Delhi was Benami property of late Mr. Waryam Singh? OPP 3. Whether the claim of the plaintiff is barred under the provisions of Bemani Transaction (Prohibition) Act, 1988? OPD 4. Whether the plaintiff is entitled to partition, if so, what are the shares of parties? OPP 5. Relief. 5. Trial court has held that the suit is clearly barred by the Benami Act because as per the provisions of Sections 3 and 4 of the Benami Act once the property by means of a title document is in the name of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HUF and how that HUF came into existence and how that HUF s existence with its properties was then found recorded in various records including public records. Appellant/plaintiff therefore cannot have the benefit of the exception contained in Section 4(3) of the Benami Act that the suit property should not be held to be a benami property but should be held to be HUF property. 8. The other exception of Section 4(3) of the Benami Act is that the suit property was purchased in trust by the defendant nos. 1 to 3, however, even that cause of action is absent in the plaint. Also, no such case was argued on behalf of the appellant/plaintiff in the court below that the suit property has been purchased in trust or by the defendant nos. 1 to 3 in a fiduciary capacity. Therefore, even second exception contained in Section 4(3) of the Benami Act is not available to the appellant/plaintiff. 9. I may note that the court below has referred to the subject sale deed dated 7.12.1959, that the sale deed does not refer to the defendant nos. 1 to 3 in the suit as minors, and no evidence was led by the appellant/plaintiff as to how the defendant nos. 1 to 3 were minors when sale deed was executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the suit was dismissed in default, however an order was passed in this suit on 2.5.1997 which shows that it was agreed that the suit property is a property of the family. (ii) I again cannot agree with this argument urged on behalf of the appellant/plaintiff and the trial court in this regard has rightly held that the order dated 2.5.1997 passed in suit no. 2526/1989 by a learned single Judge of this court cannot amount to an admission by the defendant nos. 1 to 3 of the present suit that the suit property was a family property and it had to be divided among all the family members. Trial court also rightly notes that the learned Single Judge who passed the procedural day s order in the suit on 2.5.1997 specifically recorded that a proper application was to be filed and that in fact when the order dated 2.5.1997 was passed only one brother namely Sh. Kushal Pal Singh was represented and other two bothers being the defendant nos. 2 and 3 in the present suit were not present when the order was passed on 2.5.1997. For the sake of convenience the order dated 2.5.1997 is reproduced as under:- 02.05.1997 Present: Mr. I.C. Sudhir of the Plaintiff. Ms. Sunita Harish for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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