TMI Blog2011 (2) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the defendant‟, alleging that he was the owner of the house in dispute having purchased the same vide registered sale deed dated 14.11.1979. Regarding the sale consideration he had pleaded that since he was living abroad he had been remitting money from abroad in the bank account of his mother and with that money the house in dispute was purchased in his name. The plaintiff claimed that he remitted US $ 10,000, 11000, 31231 and 15000 on 19/12/77, 02/08/78, 07/04/79 and 14/09/79 respectively. Prior to the execution of the sale deed an agreement to sell was executed between the vendor and the defendant on whose behalf that agreement dated 5th September,1979 was signed by the defendant as the attorney of the plaintiff. After the purchase of the house in dispute the plaintiff had allowed the defendant to live in one portion of that house comprising of one room and a bath room on the ground floor temporarily as a bare licensee without claiming any charges. The defendant was married in the year 1982 and then his wife also started living with him in the one room accommodation. However, when the plaintiff asked the defendant to vacate the said accommodation in his po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly ordered by the trial Court to be impleaded in the suit as well as in the counter-claim, supported the original defendant (the appellant herein) by adopting the defence raised by him in his written statement. Third brother Virender Nath was also impleaded but he did not participate in the trial and remained ex parte. 4. The plaintiff in his reply to the counter-claim took a preliminary objection that the suit (counter-claim) was not maintainable and the defendant was debarred from raising the plea of benami in view of Section 4 of the Benami Transactions (Prohibition) Act,1988. On merits, the plaintiff denied that anybody except him had contributed money for the purchase of the house in dispute or that he had thrown that property into the hotch potch of the joint family. He also denied the very existence of any Joint Hindu Family. The plaintiff also denied that he had visited India in January,1980 or on the Rakhi day in August,1980, as had been claimed by the defendant 5. Following issues were framed by the trial Court for trial:- 1) Whether this suit is not properly valued for the purposes of Court fee and jurisdiction as alleged in the written statement? OPD 2) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that plea and, therefore, the learned trial Court has rightly not accepted the same. In fact the defendant-appellant had admitted in his written statement, though not very clearly, that the house in dispute was the personal property of the plaintiff. That admission is evident from the averments made by the defendant in his written statement-cum-counter claim that the plaintiff had made a solemn declaration that he was throwing into the hotch potch of the Joint Hindu Family the house in dispute which had been purchased in his name and that With the solemn declaration having being made by the plaintiff, the suit property ceased to be the separate property of the plaintiff and became the Joint Hindu Family property of the plaintiff, the defendant, their brother, Group Caption Virender Nath, their late father Sh. Shankar Das Kalia (who died on 5th May,1981), mother and sister......... . From this portion extracted from the written statement of the defendant it is more than clear that even according to the case of the defendant and other members of Kalia family the house in dispute was the personal acquisition of the plaintiff. 8. Now I come to the plea of the defendant- appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w property may be divided under the two classes, namely, (a) Joint family property and (b) separate property. Joint family property may be further sub divided according to the source for which it comes into, namely, (a) ancestral property (b) separate property of co- parceners thrown into the common coparcenery stock and (c) property joint acquired by members of a joint family with the aid of ancestral property. It is not the case of the plaintiff that the two properties were ancestral properties. His case is that these two properties (9/10 and 8/11 W.E.A. Karol Bagh, New Delhi) were separate properties of Lala Bai Mukand and were thrown by him into the common coparcenery stock by declaration (Ex. P.W. 1/3) made by him. This is the case set up by him in the plaint and for that it is necessary for us to deal with the question that under what circumstances property, which originally is separate and self acquired property of a member of a joint Hindu family may become joint family property. 26. The law is now well settled that such a separate or self acquired property by operation of the doctrine of blending becomes joint family property, if it has been voluntarily thrown by him in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Supreme Court in Goli Eswariah v. Commissioner of Gift Tax, A.P. [1970] 76 ITR 675 (SC) wherein it was held:- To pronounce on the question of law presented for our decision, we must first examine what is the true scope of doctrine of throwing into the 'common stock' or 'common hotchpotch'. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai v. Desai Mallappa, [1961] 3 SCR 779 that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenery property and desires to blend his separate property with the coparcenery property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was also contended by the learned counsel for the appellant that since as per the plaintiff‟s own case the entire sale consideration for the purchase of the house in dispute was paid to the vendor out of the savings bank account of their mother but the sale deed was got registered in the name of the plaintiff it is clear that this was a case of benami transaction and the plaintiff was a mere benamidar and consequently he could not maintain a suit for possession against the defendant claiming himself to be the real owner. Mr. Goburdhan also contended that the bar against raising any defence on the ground of benami is not attracted here in view of the exception clause in sub-Section 3(b) of Section 4 of the Act of 1988. Therefore, contended Mr. Goburdhan, the objection taken by the plaintiff in reply to the counter claim that the plea of benami was barred under Section 4(1) of the said Act of 1988 cannot be accepted. 11. In my view, even this argument raised by the learned counsel for the appellant has to be rejected since it was not his case that the house in dispute had been purchased by the mother in the name of her son as a benamidar. As noticed already, his defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A similar question had cropped up for consideration before a learned Single Bench of this Court in which case also the property in question had been purchased by the mother in the name of her son and when that son had sought to take shelter under the provisions of Section 4(3)(b) of the Act of 1988 this Court had taken the view that the son could not be said to be holding the property as a trustee of her mother or in a fiduciary capacity. That decision is reported as 2003 (67) DRJ 174, Anil Bhasin vs. Vijay Kumar Bhasin Ors. and the relevant paras of that decision are reproduced below: 15. It is obvious that in view of Section 7 of the Benami Transaction Act, which repealed Sections 81 and 82 of the Indian Trusts Act 1882, there cannot be the same concept of trusteeship or fiduciary capacity, or that of the transferee being deemed to be holding for the benefit of the person buying or providing the consideration as was the position prior to the amendment 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt it is clear that the counter claim stood rejected and particularly when he had not sought any other relief on any other ground in the counter claim. Therefore, there is no question of sending back the matter to the trial Court for passing a formal order of rejection of the counter claim. Learned counsel for the appellant had also contended that if such a formal order had been passed in respect of the counter claim the same would have atleast got a decent burial. Since appeal is in continuation of a suit that formal order of rejection of the counter claim lodged by the appellant - defendant can be passed even by this Court. 16. As a result of the rejection of all the pleas raised before this Court for the reversal of the decree of possession the appeal to that extent is liable to be dismissed. Nothing was argued on the question of award of mesne profits @ ₹ 5000/- per month by the trial Court as far as the period of three months prior to the institution of the suit is concerned. Considering the fact that the house in dispute is situated in a posh locality of Delhi the grant of mesne profits @ ₹ 5000/- per month does not appear to be unjustified also and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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