TMI Blog2018 (7) TMI 2104X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is the position with respect to a family settlement. Here, the mutual family settlement and agreement to partition and divide alleged is with respect to one property only and in which, the pleas of the defendant/ counter claimant of antecedent title thereto, have been found to be barred by law. Supreme Court, recently in Theiry Santhanamal Vs. Viswanathan [ 2018 (1) TMI 1577 - SUPREME COURT] held that partition deed can be entered into between the parties who are joint owners of the property; a father, as an absolute owner of the property, could not give away portions of the property to his sons by entering into partition deed; in case the father wanted to give the property of which he was the absolute owner, to his sons, it could be done by Will or by means of a gift deed/donation etc.; however the claim of the plaintiff in that case was not on that basis; it was not stated anyw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier 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 plaintiff; (iv) that since the plaintiff and her husband have been residing at Germany, the defendant, being a close relative, was allowed to reside in the property with a view to look after the father-in-law and mother-in-law of the plaintiff and who were also the parents of the defendant; (v) that the plaintiff also executed a special power of attorney in favour of the defendant, for having executed the conveyance deed of freehold rights in land underneath the property from the L DO in favour of the plaintiff and the defendant, acting as the attorney of the plaintiff, got the said conveyance deed registered on 20th January, 2011; (vi) that the father-in-law of the plaintiff expired in the year 2002 and the mother-in-law of the plaintiff expired in the year 2012; (vii) however, inspite of demise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta 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 the said property at Defence Colony, only the defendant made contributions and neither of the other two sons of the parents of the defendant made any contribution; (ix) on completion of construction of a double-storey structure along with basement, the defendant occupied the ground floor thereof; (x) the defendant only has been maintaining the entire property since 1984-85, since the husband of the plaintiff along with the plaintiff was residing at Germany; (xi) all the title documents of the property were also with the parents of the defendant and were entrusted by the parents to the defendant for safe custody; (xii) though the sale deed of the plot of land underneath the property was in the name of the husband of the plaintiff, but he was never the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 the defendant, as per the averments therein, is barred by the Prohibition of Benami Property Transactions Act, 1988. Once the defendant on the pleas taken in the written statement and the counter-claim have no chance of success, notwithstanding framing of issues, the Court is not to waste its time on the suit and counter-claim. 4. The plaintiff, on the basis of title, has sued for recovery of possession of basement and ground floor of an immoveable property from the defendant. 5. The defendant is contesting the suit and has made a counter-claim pleading (i) that the property was purchased from monies largely belonging to the father of the defendant and who was the father- in-law of the plaintiff; (ii) that the purchase was however ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whosoever may be ultimately found entitled thereto, the defendant either deposit at the said rate or be liable to vacate during the pendency of the suit and subject to the final outcome in the suit. 13. List on 25th July, 2018. 6. I may, at this stage, record the issues framed in the Suit on 14th November, 2017 as under: (i) Whether the plaintiff is the sole owner of the suit property bearing No.425, Defence Colony, New Delhi 110024? OPP (ii) Whether the plaintiff is entitled to a decree of possession of the ground floor, basement and other areas of the suit property under the occupation and possession of the defendant? OPP (iii) Whether the present suit filed by the plaintiff is liable to be rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibition) 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 Section 2(a) of the Act as it existed prior to the amendment or in Section 2(9)(A)(a) of the Act as it now exists after the amendment, to suggest that only if the entire consideration has been provided, will the transaction be benami and not if part of the consideration is provided. The provisions aforesaid use the word consideration and do not qualify the said word by entire or part. Otherwise also, it defies logic that when the claim is of payment of part consideration and part ownership in lieu thereof, benami would not apply, but if the claim is of payment of entire consideration and of exclusive title, the prohibition would apply. I have, in Satish Kumar Gupta Vs. Shanti Swa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 Marcel Martins in whose exclusive name the tenancy rights were so transferred by the lessor. It was in these circumstances that it was held that the transfer of tenancy rights in the exclusive name of the appellant was not because her other siblings had abandoned their rights but because the lessor required the tenancy rights to be transferred in favour of an individual to avoid procedural complications in enforcing its rights qua the property. It was thus held that Marcel Martins was holding the tenancy rights in a fiduciary capacity, as a trustee, and for the benefit of her other siblings on whom also, on demise of the mother, the tenancy rights had devolved and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-09, 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, Mr. N.K. Butta wanted to declare himself a bankrupt and save his assets. He wanted to find a way to save the suit property from attachment. For this purpose he came to Delhi and met the defendant to discuss ways of saving the suit property. During the discussions it was discovered and realized that the entire suit property was still leasehold and stood in the name of Mr. N.K. Butta and first the shares were to be mutated separately. However, for carrying out the mutation it would first have to be converted from leasehold to freehold. Further, even to sell the property as it is, prior permission of the L DO would be required. The defendant and Mr. N.K. Butta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 alleged transfer deed / gift deed being misused against the defendant. Mr. N.K. Butta and the plaintiff further assured the defendant that as soon as the legal problems of Mr. N.K. Butta in Germany were over, they will proceed for conversion of the property to freehold and get separate mutations effected in the municipal records of different shares and portions of the N.K. Butta and the defendant in the suit property. 41. After being persuaded for a long time and despite major disagreement and opposition from his wife, children and mother, Smt. Lakshmi Butta, the defendant agreed to permit Mr. N.K. Butta to transfer the property in the name of his wife, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured 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 is premised on the husband of the plaintiff being benami owner of the property, is liable to be rejected as barred by the Benami Law and there is no need to put the said defence of the defendant to trial, inasmuch as once the defence pleaded is barred by law, no amount of evidence can cure the said bar. 21. That brings me to the plea of the defendant/counter claimant, of mutual family settlement and agreement to partition and divide the assets. The same is pleaded to be oral and not recorded in any document and nothing is pleaded from which an inference of the same having been acted upon, can be drawn. 22. The question which arises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 divide alleged is with respect to one property only and in which, the pleas of the defendant/ counter claimant of antecedent title thereto, have been found to be barred by law. 27. Supreme Court, recently in Theiry Santhanamal Vs. Viswanathan (2018) 3 SCC 117 held that partition deed can be entered into between the parties who are joint owners of the property; a father, as an absolute owner of the property, could not give away portions of the property to his sons by entering into partition deed; in case the father wanted to give the property of which he was the absolute owner, to his sons, it could be done by Will or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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