TMI Blog2020 (2) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the fiduciary capacity in paragraph 27 of the plaint is in respect of the brothers of the plaintiff, paragraph 40 of the plaint clearly indicates that the properties were purchased inter alia in the name of the applicant, who is the wife of defendant no.1. The averment in paragraph 38 of the plaint that the parties are holding the properties in trust of each other, is also relevant in this regard. Whether the applicant is entitled to the relief claimed in terms of Order XII Rule 6 of the CPC must be decided on a meaningful and holistic reading of the pleadings, or other documents in which the plaintiff is alleged to have admitted the applicant s defence. To entitle a party to a decree in terms of Order XII Rule 6 of the CPC, the admission must be categorical, unconditional and unequivocal. Pleading in respect of a joint Hindu family, where property is held as a trustee for all family members, could not be decided at the stage of an application for rejection of plaint and ought to be taken to trial. The relief of declaration sought in prayers A and B are questions that would in any effect fall for consideration while adjudicating the question of partition. It therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of properties, the applicant claims that the following properties are her self-acquired exclusive properties: i) 25/37, Gali No. 16, Viswas Nagar, Delhi ii) First floor House No.2425, Tilak Gali, Pahar Ganj, New Delhi-110055 iii) K-217, South City-I, Gurgaon (Hayrana), Customer ID No. 8610641 Unitech Limited South City, Gurgaon. 3. Although the applicant was not originally impleaded in the suit, she applied for impleadment by way of I.A. 12588/2015, which was allowed vide order dated 08.10.2015. Submissions 4. In support of this application, Mr. Srivastava contended that it is the admitted position that the properties stand in the name of the applicant. He drew my attention to the documents filed in this regard, and submitted that the documents have been admitted by the plaintiff in the course of admission/denial of documents. Mr.Srivastava argued that the plaintiff s claim, characterizing the suit properties as joint family properties, is untenable in light of Section 4 of the Benami Transactions (Prohibition) Act, 1988 [hereinafter referred to as Benami Act ]. Although Section 2(9) of the Benami Act makes an exception in cases where fiduciary ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant no.1. Learned counsel referred to a sale deed dated 05.06.1984 in this regard. ii) According to Ms. Sahani, First Floor, House no. 2425, Tilak Gali, Paharganj, New Delhi, was originally in the name of defendant no.1 and was transferred to the applicant (his wife) only in May, 2014. She referred to a General Power of Attorney dated 04.06.2014 and an Agreement to Sell dated 04.06.2014 between defendant no. 1 and his wife (the applicant). iii) With regard to the property allotted by Unitech Gurugram [K-217, South City-I, Gurugram (Haryana), Customer ID No.8610641], Ms. Sahani submitted to that the plot, claimed by the applicant to be hers, was one of several properties in the same neighbourhood purchased in the names of different members of the family. She drew my attention to various documents including possession letters in this connection. 8. Ms. Sahani cited the judgments of the Privy Council in Rajani Kanta Pal Ors. vs. Jaga Mohan Pal AIR 1923 PC 57, Gunna J.Krishnan Ors. vs. G.K. Rengachari Ors. AIR 1965 Mad 340 and Purna Bai Ors. vs. Ranchhoddas Ors. AIR 1992 AP 270 in support of her contention that the properties in question formed part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they paid to their father. They took his advice for all the purpose be it business or otherwise and put him on the pedestal of their father late Shri Jitender Singh Kamboj. The family of the three brothers namely plaintiff with Defendant no. 1-2 and Late Sh. Narinder Kumar Kamboj himself, lived in a joint family even after the demise of their father late Shri Jitender Singh Kamboj and the Defendant No. 1 was put in the position of the head of the family. All the business remained joint with every working brother putting his money and efforts to the running of the business concerns and getting a share out of the profits to meet the Daily affairs while the rest of the profits was kept by the Defendant No. 1. xxxx xxxx xxxx 20 That upon sale of the properties as mentioned herein above some more properties were purchased by the defendant no.l in different names while assuring the plaintiff and defendant no.2 that he was purchasing all these properties for the benefit of the family and was holding them trust for the entire family of the three brothers namely plaintiff, defendant no1 and 2. No amount was shares by the defendant no.1 with the plaintiff nor any amount was pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Narinder Kumar Kamboj and defendant no.2 Devender Kumar. Rest of the money used to be invested in the properties. Other than the properties which were purchased in the names of the Plaintiff and Defendant No. 2 specifically the rest of the properties were purchased either in the name of the business or in the name of the Defendant No. 1, his wife or children. Since the business and the family was joint, there was no occasion for the Plaintiff to ever doubt the intentions of Defendant No. 1. The trust of the Plaintiff is evident from the conduct that the Defendant No. 1 was allowed to shift to his property in Gurgaon where the Defendant No. 1 is presently residing with his family. It is stated that out of the said trust and respect for the Defendant No. 1, the Plaintiff and the Defendant No. 2 used to sign on blank papers and hand them over to the Defendant No. 1 for the purposes of carrying on the business documentation effected. The Defendant No. 1 at his own will and whims created documents with signatures of the Plaintiff and Defendant No. 2 whereby various partnership businesses were established while the others were wound up either by way of Dissolution Deeds or other such do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r) Thr. Next Friend and Ors. vs. Kuldeep Singh Gulati Ors. (2019) 257 DLT 550:- 52. However, if sufficient nucleus/income of Hindu Joint Family is shown and property had been purchased from the said nucleus, then even if ownership stands in the name of one of its members, it can be presumed that property is owned by the Hindu Joint Family. Even in the judgment of Appasaheb Peerappa Chamdgade (supra) cited by the plaintiffs, there were Hindu Joint Family properties and the business was started from the Hindu Joint Family funds. The said judgment categorically holds that proof of nucleus/sufficient income of a Hindu Joint Family as well as purchase from the said nucleus is a must. 53. In Ms. Ilaria Kapur v. Sh. Rakesh Kapur (supra), it was also held that if nucleus whereof was generation of funds from Hindu joint family business for the purchase of properties, then it is immaterial whether the name of one of the family members appears on a document by which the said property was purchased by the joint family. 14. In view of my finding as aforesaid, it is not necessary to consider the judgments of the Privy Council, and of the High Courts of Madras and Andhra Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt, the decision of this Court in Anita Anand (supra) cited by Mr.Mohan is relevant. That judgment holds as follows:- 30. Hence, it was argued this suit is primarily a case of declaration and not of partition and the limitation for such a relief would start on 15.12.1987 from the death of Joginder Nath Kapur. It is submitted the claim raised by the plaintiff would only succeed if she gets a declaration that Joginder Nath Kapur is the real owner of this property and she could have got such declaration either during the lifetime of her father or within 3 years of his death and now this suit is barred by limitation. In fact it is argued the plaintiff need to seek a declaration the suit property exclusively belong to her father and also he died intestate and is now she is a co-owner of the property. 31. I am afraid the contention of the plaintiff has no force since a suit for partition would, even otherwise, be maintainable as in order to grant a prayer of partition the Court will nonetheless shall decide the property is being capable of partitioned and hence a separate relief of declaration would be superfluous as held in Vakil Chand Jain v. Prakash Chand Jain, 2009 SCC OnL ..... X X X X Extracts X X X X X X X X Extracts X X X X
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