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2018 (7) TMI 2104

..... in internal family reasons? - HELD THAT:- Plea is however premised on the husband of the plaintiff being the benami owner of the property and the father of the defendant/ counter claimant and the father-in-law of the plaintiff being the real owner of the property and/or on the defendant/ counter claimant also having a share in the property by reason of having contributed towards purchase of land underneath the same and cost of construction thereof. I have already hereinabove held that the plea of benami is barred by benami law and not required to be put to trial. Question which thus further arises is, when the plea of benami, on which the plea of mutual family settlement and agreement to partition and divide is premised, is unsustainable in law, whether there is any need to put the plea of mutual family settlement and agreement to partition and divide to trial. For a partition to take place, both the parties amongst whom oral partition is pleaded must be the owners or must have a share in the property which is claimed to have been partitioned. Title in one, who earlier did not have any share in the property, cannot for the first time be created in the guise of partition. The same i .....

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..... appeal, does not comply with the decree for possession, it will be open to the plaintiff to, at that stage, seek appointment of a Commissioner for holding an enquiry into mesne profits. The counsel for the plaintiff having not raised the aforesaid plea, no costs. Decree sheet be prepared. - CS(OS) 108/2016 And CC No.69/2016 - 27-7-2018 - Mr. Rajiv Sahai Endlaw, J. Judgment Mr. Rajiv Sahai Endlaw 1. The plaintiff instituted this suit for recovery of possession of basement and ground floor of property No. C-425, Defence Colony, New Delhi, pleading: (i) that the defendant is the brother of the husband of the plaintiff; (ii) that the property No. C-425, Defence Colony, New Delhi was purchased by the husband of the plaintiff vide registered Sale Deed dated 1st January, 1983 from one Shri V.K. Mehta, the earlier owner of the said property and the leasehold rights in the land underneath the property were mutated in the records of the Land and Development Office (L&DO) from the name of the said V.K. Mehta to the name of the husband of the plaintiff; (iii) that the husband of the plaintiff, vide registered Gift Deed dated 17th November, 2009, has gifted the said property to the plainti .....

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..... were given by the parties parents, the sale deed of the suit property was executed in the name of their middle son Mr. N.K. Butta, the husband of the plaintiff, for certain internal family reasons and the mutation was done in his name in the L&DO records. Mr. N.K. Butta had however contributed only a small amount towards the purchase of the suit property and did not make any contribution towards the construction of the house / super structure. The original sale deed and all other original documents pertaining to the suit property were with Mr. A.C. Butta and were never in the possession of Mr. N.K. Butta. Mr. N.K. Butta was always aware that suit property was owned by his parents and he is not the owner thereof. Much before the purchase of the suit property, Mr. N.K. Butta had left India and never returned. He was living and working in Germany since the year 1968 and had also obtained German citizenship. (vii) since of the three sons of the parents, only the defendant was in Delhi, the defendant did all the running around for sale of the Rajender Nagar house and for purchase of the plot aforesaid and for raising construction thereon; (viii) towards the funds for construction of .....

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..... aforesaid; (iii) of the gift deed executed by the husband of the plaintiff in favour of the plaintiff as null, void, non-est and unenforceable; (iv) of the conveyance deed of freehold rights in land underneath the property by the L&DO in favour of the plaintiff as null, void, non-est and unenforceable; (v) of the mutation by the L&DO in the name of the plaintiff as null and void; and (b) of permanent injunction restraining the plaintiff from dealing with the property, has been made. 5. Chamber Appeal being OA No.58/2018 preferred by the plaintiff against the order dated 9th May, 2018 of the Joint Registrar of dismissal of IA No.12377/2017 for filing additional documents came up before this Court on 28th May, 2018, when the following order was passed: 1. The plaintiff has preferred this Chamber Appeal against the order dated 9th May, 2018 of the Joint Registrar dismissing IA No.12377/2017 of the plaintiff for filing additional documents. 2. The counsel for the defendant appears on advance notice. 3. Having gone through the file, it is felt that though issues have been framed in this suit and counter-claim but the defence taken by the defendant and the counter-claim made by .....

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..... The counsel for the defendant to, on the next date of hearing, also come ready to address on the aspect that even if a case for leading evidence is made out, in view of the defendant admittedly having also acted as the attorney of the plaintiff for the purposes of having leasehold rights in the land underneath the property converted into freehold, why should be the defendant, as a condition for contesting the suit, be not directed to deposit in this Court mesne profits at the prevalent market rate which the defendant may be found liable for, in the event of the suit being decreed against defendant. Though the claim for mesne profits has not been made in the suit but as per R.S. Madanappa Vs. Chandramma AIR 1965 SC 1812 and Bhagwati Prasad Vs. Chandramaul AIR 1966 SC 735, in a suit for possession, mesne profits can always be awarded. 12. The parties to, on the next date of hearing, also come prepared to make bids with respect to the mesne profits for the basement and ground floor of the property as per the prevalent market rate and if the bid of the plaintiff is higher, subject to the plaintiff depositing the said amount month by month in the Court, to accrue to the benefit of whos .....

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..... mentions the word consideration paid and which has to mean the entire consideration and not part of the consideration: (a) benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person; 8. On enquiry, whether the Benami Transactions (Prohibition) Act, 1988 would apply or the Benami Transactions (Prohibition) Amendment Act, 2016 would apply, it is contended that since the suit as well as the written statement and counter claim were filed prior to the amendment of the Benami Transactions (Prohibition) Act, 1988 by the Benami Transactions (Prohibition) Amendment Act, 2016, the Benami Transactions (Prohibition) Act, 1988 would apply. However, on enquiry as to the basis for contending so, the counsel for the defendant states that he has not studied the matter from this aspect. On further enquiry, whether any material difference has been made to the definition of benami transaction by way of the amendment aforesaid, attention is drawn to Section 2(9)(A) to contend that what was earlier contained in Section 2(a) and in Section 4 has now been amalgamated thereunder. 9. In my opinion, there is nothing in Secti .....

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..... ty held benami whether against the person in whose name the property is held or against other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply, - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (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. 13. Supreme Court, in Marcel Martins (supra) was concerned with the tenancy rights held by one Stella Martins, the mother of the parties to the lis before the Supreme Court. It was found, that though on demise of Stella Martins, all her children were entitled to succeed to the tenancy rights held by her, but the lessor desired that the tenancy rights be transferred in the name of one individual rather than several individuals who had succeeded to the tenancy rights. The said position was not disputed by .....

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..... r the contract rescinded, first become known to the person seeking such cancellation. The Counter Claim, for this reason also appears to be barred by time. 17. Not only so, it is inexplicable, that if the husband of the plaintiff was not the exclusive owner of the property and was holding the same in trust, also for the defendant, why would the defendant consent and participate in having the conveyance deed of freehold rights in land underneath the property transferred in the name of the plaintiff. In this regard, attention is invited to paragraphs 37 to 43 of the preliminary objections in the written statement as under where it is pleaded that in the year 2008-09, the husband of the plaintiff was involved in certain legal proceedings in Germany and there was high possibility that his assets including in India would be attached and for the said reason, the property was got transferred in the name of the plaintiff: 37. In the year 2008-2009, Mr. N.K. Butta got involved in certain legal proceedings in Germany. His business partner had filed a case of embezzlement against him. There was a very high possibility that all his assets and properties would get attached and sold. Therefore, .....

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..... ant or his family members and especially not to the mother of Mr. N.K. Butta and the defendant, Mrs. Lakshmi Butta, who was still alive and residing on the first floor. Smt. Lakshmi Butta was completely against transferring the property in favour of the plaintiff. This was mostly for the reason that Smt. Lakshmi Butta and the plaintiff herein did not have very cordial relationship from the beginning and Smt. Lakshmi Butta did not trust the intentions of the plaintiff. 40. However, Mr. N.K. Butta was in a very desperate situation and pleaded with the defendant to permit him to transfer the property in the name of his wife. Mr. N.K. Butta gave an undertaking and assurance to the defendant that the property will be transferred in the name of the plaintiff only for the limited purpose to show the German courts that he is not the owner and that they will never adversely use the said document of transfer for any collateral purpose against the defendant in any manner which will prejudice the rights, title and interest of the defendant. Mr. N.K. discussed all this again with the defendant and his family and with Smt. Lakshmi Butta and assured all of them that there is no likelihood of the .....

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..... the said witnesses. That after the execution and registration, the original gift deed dated 13.11.2009 was kept by the defendant herein and only a photo copy was given to Mr. N.K. Butta and the plaintiff to use in the legal proceedings at Germany. The original gift deed dated 13.11.2009 is still in the possession of the defendant. This was also a solace and confirmation to the defendant and his wife, children and mother, Smt. Lakshmi Butta, that the plaintiff herein has no intention of using the said gift deed for any purpose in India and that the defendants ownership title and interest on the ground floor and basement of the suit property, was secured and not challengeable. 18. Though again, this is not the stage for returning factual findings, but the improbability of what is pleaded is writ large. If the defendant was also the owner of the property, the defendant could have at that stage only got the property transferred to his name. 19. I may however clarify that the aforesaid observations are not intended to return any factual finding without recording evidence and only to take care of all the arguments urged. 20. Suffice it is to state that the counter claim, to the extent i .....

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..... eserve the family property, the peace and security of the family, avoidance of family disputes and litigation and for saving the honour of the family; (b) such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is; and, (c) it is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a conveyance of property from a person who has title to it to a person who has no title. In Kale supra, as also in earlier judgments in Tek Bahadur Bhujil Vs. Debi Singh Bhujil AIR 1966 SC 292 and Ram Charan Das Vs. Girjanandini Devi AIR 1966 SC 323, it was held that it was not necessary to show that every person taking a benefit under a family arrangement had a share in the property; it was enough if they had a possible claim or a semblance of a claim. This was explained in V.N. Sarin Vs. Major Ajit Kumar AIR 1966 SC 432 as meaning, that each coparcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family. 26. Here, the mutual family settlement and agreement to partition and .....

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