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TMI Blog2018 (9) TMI 1939X X X X Extracts X X X X X X X X Extracts X X X X ..... e. mother of the parties- defendant No.1; b) thereafter, in the year 1981, the father also purchased remaining ½ portion in the name of his wife - defendant No.1 - the mother of parties; c) it is alleged the use and right in the subject property was only for the benefit of her all children and though it was purchased by the father in the name of his wife-defendant no.1 but it was an exclusive property of the father. 3. The application under Order 7 Rule 11 of the CPC is filed by the defendants alleging interalia a bare reading of the plaint would reveal the plaintiff has no case and the suit needs to be dismissed. The defendant alleges: (i) prior to filing this suit a public notice in Nav Bharat Times dated 08.11.2014 was got published by the plaintiff claiming the property to be joint and ancestral one; (ii) the plaintiff claims her right in this ancestral property per Section 6 of the Hindu Succession (Amendment) Act, 2005 and she cannot claim such right since her father was not alive on the date of the amendment, as is held in Prakash vs. Phulavati (2016) 2 SCC 36; (iii) further it is alleged the suit is barred by Section 3 of the Benami Transaction Act; (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such I am a co-sharer of the same. This property is not available for sale, rent, lien construction, reconstruction, exchange, gift, lease, mortgage, charge, trust, possession or otherwise without my concurrence. Whomsoever, enters into any kind of agreement regarding the above mentioned property without my knowledge and concurrence, shall be doing so on his/her own costs, risks and consequences. Sister Name : Anita Anand; Address: GH-IO/IO-B, Outer Ring Road, Paschim Vihar, New Delhi-87." 5. The defendant also refers to Section 6 of the Hindu Succession (Amendment)Act, 2005 :- "6.Devolution of interest in coparcenary property.-- (1) xxxx xxxx (2) xxxx xxxx (3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-- the daughter is allotted the same share as is allotted to a son; the share of the pre-deceased son or a pre-deceased daughter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to July 2014 there could be no occasion for the plaintiff to file such suit, much less, within three years from the date of death of her father as she always allegedly believed the subject property to be her father's property as was the alleged oral understanding between the parties for decades. 9. The plaintiff has never stalked her claim as a coparcener in a joint Hindu family and thus if at some odd places in plaint the property is described as an ancestral or joint property but a meaningful reading of the plaint reveal the claim is not based upon ancestral property but upon a plea the property was purchased by deceased Joginder Nath Kapur by his own funds, hence it cannot be said the property is claimed to be an ancestral one and consequently Section 6 of the Hindu Succession Act, 1956 shall have no applicability. The suit property is a coparcenary property has not even been pleaded by the plaintiff. It is, even otherwise, a settled position of law after passing of the Hindu Succession Act, 1956, the traditional concept of "ancestral property" has undergone a change. If a person after 1956 inherits a property from his paternal ancestors, the said property shall not be HUF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 281A of the Income-tax Act, 1961 (43 of 1961), in the State of Jammu and Kashmir." 13. The defendant also relied upon Amar N.Gugnani vs. Sh.Naresh Kumar Gugnani in CS(OS) 478/2004 decided on 30.07.2015 wherein the Court held: "17. In my humble opinion therefore the judgment in the case of Marcel Martins (supra) is distinguishable in view of the existence of the provision of Section 7 of the Benami Act repealing Sections 81, 82 and 94 of the Trusts Act. 18. In view of the above, since the plaintiff in the plaint himself states that the property was purchased as a benami property in the name of the father, late Sh. Jai Gopal Gugnani, merely and although the plaintiff has used the expressions fiduciary relationship and trustee, yet these expressions of fiduciary relationship and trustee are not those expressions which will cause the transaction to fall under the exception of Section 4(3)(b) of the Benami Act, but these expressions are those expressions which fall under Sections 81, 82, and 94 of the Trusts Act and which have been repealed by Section 7 of the Benami Act. 19. In view of the above, I hold that the suit is barred by the provision of Section 4(1) of the Benami T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 07.08.2018 this Court held:- "4. Unfortunately, the trial court has committed a grave and fundamental error in rejecting the suit plaint under Order VII Rule 11 CPC by relying upon the provision of Section 4 and repealed provision of Section 3(2) of the Benami Transactions (Prohibition) Act. When the impugned judgment was passed on 19.12.2016, what was, and is now applicable is the Prohibition of Benami Property Transactions Act, 1988 which became applicable w.e.f 1.11.2016. As per Section 2(9) of the Amended Act what is a Benami Transaction is stated/specified, and also those transactions which are not benami are are also stated/specified. As per the suit plaint/averments, in the present case the existence of the properties in the name of the respondent/defendant/wife will fall as an Exception to the prohibited benami transaction in view of Section 2(9)(A)(b) Exception (iii) inasmuch as it is legally permissible for a person to purchase an immovable property in the name of his spouse from his known sources, and in which position, the property purchased will not be a benami property but the property will be of the de jure owner/plaintiff/husband and not of the de facto owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 20. It was argued by the learned counsel for the defendants the plaintiff had failed to allege the property though was purchased in the name of defendant no.1 but was not for her benefit alone and further the property was acquired by the mother in lieu of maintenance so per Section 14 of Hindu Succession Act the property vested in her as an absolute owner, hence the suit is not maintainable. 21. The learned counsel for the defendant also relied Jupudy Pardha Sarthy vs Pentapati Rama Krishna & Others (2016)2 SCC 56 wherein the Court noted:- "18. Lastly, His Lordship after elaborate consideration of the law and different authorities came to the following conclusions:- "We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like "property acquired by a female Hindu at a partition‟, "or in lieu of maintenance‟, "or arrears of maintenance‟, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2). (6) The words "possessed by‟ used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in Section 3(2) and 4(3) of the Old Act, for abundant clarity, by virtue of Section 2(9)(A)(b)(ii) and Section 2(9)(A)(b)(iii) of the amended Act, specifically excluded transactions of the nature pleaded by the plaintiff from the very definition of Benami Transactions. Given this position and there not being any disharmony between the provisions of the Old Act and the amended Act insofar as the aforesaid exception is concerned, the ration decendi of the Hemant Sati case (supra) will, apply proprio vigore, to cases covered by the amended Act as well. In view of the above, the argument of the defendants the wife of the father of the parties had become the absolute owner of the suit property when the same was purchased in her name by virtue of Section 14 of the Hindu Succession Act, 1956 would be subject to trial. 25. Admittedly no charge ever was created on the property in favour of defendant no.1 in lieu of maintenance, hence Jupudy Pardha‟s case (supra) even otherwise, shall not be applicable. 26. Qua contention (v) the learned counsel for defendant relied upon Leena Mehta vs Vijaya Myne & Ors, CS (OS) No.2118/2006 decided on 09.11.2009 wherein it was held:- "5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been filed by the plaintiff latest by year 2000. The suit is liable to be dismissed being time barred." 27. It is argued the facts of the present case are akin to the facts narrated in Leena (supra). Neither the deceased father of the plaintiff nor the plaintiff ever filed a suit for declaration claiming him to be an absolute owner of the subject property during his lifetime or within three years of the date of death of her father, hence the suit for declaration now is barred by limitation. 28. The learned counsel for the defendants thus argued a legal presumption cannot be rebutted by merely alleging averments of symbolic possession. 29. Qua limitation the learned counsel for the defendants pleaded that Mr.Joginder Nath Kapur expired on 15.12.1987; the plaintiff got married in 1976 and para 8 of the plaint reveal the plaintiff was well aware the property which Mr.Joginder Nath Kapur purchased in the name of his wife was for the benefit of all the children and was in fact the property of late Mr.Joginder Nath Kapur. Admittedly late Mr.Joginder Nath Kapur during his lifetime did not file any suit against his wife seeking a declaration the property belongs to him. Admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties prior to such date and if such understanding ever existed is a question of fact requiring evidence. 33. Qua contention (vi) viz. the advalorem Court-fee, it is argued (a) the plaintiff has valued the suit property at Rs. 5,93,56,644/- and seeks a declaration to be a co-owner of such property when, admittedly, she is neither in physical nor symbolic possession of the property, she being married since 1976 and is residing in her matrimonial home, hence has to pay advalorem Court fee on the relief of declaration/partition with a consequential relief and (b) the plaintiff seeks a declaration qua the gift deed valued at Rs. 5.93 Crores, to be void but whereas the Court-fee of Rs. 200 only has been paid and hence the plaintiff be directed to pay the actual Court fee. 34. I agree to these submissions. Though the plaintiff claims to be in constructive possession of the property but she herself alleges all documents concerning the property are with defendant no.2 who is even enjoying the rental income, and even per allegations in the plaint she claims her ouster in July, 2014, she need to pay Court fee to the extent of her share in the property to seek partition. 35. In Sure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd are currently in possession of the title documents. It is also averred defendant no.2 continuous to derive income from the suit property and has acquired other properties from the proceeds and earnings of the said income from the suit property. 39. Once it is own case of the plaintiff that defendant no.1 and 2 are living in the suit property and the defendant no.2 is deriving income from the suit property, itself shows that the suit property is not in the possession of the plaintiff and the defendant no.2 is deriving income either by letting out the same or by doing some kind of work, business of the said property. 40. A meaningful reading of averments in the plaint shows the plaintiff admits her ouster by the defendants and the ouster is premised on the plaintiff right, title or interest in the property being denied, the plaintiff has to pay advalorem Court fee. In para no.14D of the plaint she has averred the defendant no.2 was conducting commercial business of tuition centre at the suit property. 41. Clever nature of pleadings in the plaint which is of ambiguous nature will not save the plaintiff from her liability to pay Court fee if the exclusion from possession is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court fee on the value of Gift Deed since asking for its cancellation. 45. As per Section 7 (iv) (c) of the Court fee Act, 1870 where the plaintiff filed a suit for declaratory decree with consequential relief, advalorem Court fee is payable. Thus for above prayers of declaration, the plaintiff is liable to pay advalorem Court fee as per Section 7 (iv) (c) of the Court fee Act. 46. The relief of partition sought by the plaintiff will be consequential to the declaration of gift deed as illegal as till the time the gift deed will stand in the name of defendant no.2, the plaintiff shall not be entitled for partition. Thus, the present suit is a suit for declaration with consequential relief and the judgment of the Apex Court would be of no help to the plaintiff as incase the suit would have been only qua the declaration of a document as illegal without any further relief viz. possession, the said judgment would have been applicable. 47. No Court fee was payable in the cited case viz. Suhrid Singh (supra) as the plaintiff had not sought any consequential relief of possession and being a non-executant simply sought for a declaration of the sale deed as illegal, hence was held not req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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