TMI Blog2002 (8) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Plaintiff wishes to add sub-para to the existing para 3, which is as under: Plaintiff respectfully submits that Smt. Raj Rani Bhasin had purchased certain immovable properties either in her name or in others' name including the defendant No. 3. The properties purchased by her in other's names were held in trust as trustee. The same were held in fiduciary capacity and for the sole benefit of Smt. Raj Rani Bhasin. The same also devolved upon the parties here to and are liable to be partitioned. It is submitted that Smt. Raj Rani Bhasin purchased property No. 2-R, Second Floor, DCM Building, 16-Barakhamba Road, new Delhi, in the name of defendant No. 3. She also purchased office bearing No. 1110, Ashoka Estate, Barakhamba Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase of properties. The said properties were purchased by her either in her own name or in the name of defendant No. 3, who held the said property in trust, as trustee to her. Needless to say, the said properties were purchased for her benefit and the same are also liable to be partitioned between the parties hereto. II. That the plaintiff also wishes to add the aforesaid immovable properties in para 4 at the end of list of the existing list of immovable properties. ..... ..... ..... ..... ..... ..... 3. The objection of the defendant is that the averments sought to be included by amendment, are hit by the Benami Transactions (Prohibition) Act 1988, and as such cannot be allowed. Reliance is placed upon the decision of the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing an additional plea to be raised which is prohibited by law. As such, it is not permissible for the plaintiff to take up such a plea which is prohibited by virtue of Section 4 of the said Act. 4. The plaintiff/applicant on the other hand, has relied upon the proviso to Section 4 of the Benami Act, which excludes from the prohibition of the said Section, the situation where the person in whose name the property is held, is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such a capacity. 5. It may be pertinent at this stage to discuss some basic facts of this case as per the pleadings of the parties, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; 4. Prohibition of the right to recover property held benami.- (3)(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 10. The plaintiff on the other hand submits that at the stage of amendment, the matter is not to be examined on the merits of the averments, but only on the aspect as to whether the proposed amendments are to be allowed or not under the well established and libe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff, regarding the son being a trustee or a persons standing in fiduciary capacity towards the mother, the learned counsel for defendant has referred to me certain amendments which took place contemporaneously in the year 1988 itself when the Benami Transaction Prohibition Act was enacted, and in particular to Section 7 of the said Act, which provides for repeal of Sections 81, 82 and 94 of the Indian Trusts Act, 1982. According to the learned counsel for Judgment Debtor, the repeal of Sections 81 82 of the Trusts Act by the Benami Transaction Act of 1988, itself establishes that the intention of the legislature, was not to allow the concept of trustee and/ or of fiduciary capacity of the pre-1988 period, to continue to remain as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment of 1988. 16. At the same time, there exists the provisions of Section 4(3)(b) of the Benami Transactions Act 1988, being in the nature of a proviso excluding from the prohibition, the right to recover property held benami, in such situations where the person in whose name the property is held, is a trustee or other persons standing in a fiduciary capacity. 17. To my mind, the only interpretation which can reconcile all the provisions, is to hold that after the repeal of Sections 81 and 82 of the Indian Trusts Act 1882, it is only those instances of fiduciary capacity such as property of partnership firm held in the name of one of the partners, or property which Mr. X wanted Mr. Y to buy in the name of Mr. X, but in violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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