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2018 (10) TMI 1823

..... iff, in whose name the property is held, is a trustee or other person standing in a fiduciary capacity vis-vis the appellant / defendant and the property is held by the respondent / plaintiff for the benefit of another person for whom she is a trustee or towards whom she stands in such fiduciary capacity i.e. the appellant / defendant - HELD THAT:- A mother is not a trustee of her major son and does not stand in a fiduciary capacity to her major son. Such notions, held by the appellant / defendant or his counsel, are not supported by any law. Merely because a major son chooses to purchase the property in the name of his mother would not allow him to seek exemption from the societal malice which was sought to be curbed by enactment of the Benami Law and Section 4 whereof was intended to curb such litigation which consumes a lot of time of the Courts. Section 4(3)(b) of the Benami Act provides that nothing contained in Sections 4(1) and 4(2) shall apply where the person, in whose name the property is held, is a trustee or other person standing in a fiduciary capacity. The question, whether mother is a trustee of her major son or stands in a fiduciary capacity to her son, is no longer .....

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..... the suit filed by the respondent / plaintiff for mandatory injunction directing the appellant / defendant to vacate the room, attached latrine in property bearing No.5/100, Top Floor (Third Floor), near Kawatra Tent House, Subhash Nagar, Delhi, and, for permanent injunction restraining the appellant / defendant from interfering with peaceful possession of the respondent / plaintiff of the remaining property and / or from in any manner dealing with the property. Resultantly, the First Appellate Court passed the decree in favour of the respondent / plaintiff and against the appellant / defendant as sought. 2. This appeal came up first before this Court on 28th September, 2016 when, on the contention of the counsel for the appellant / defendant that the defence of the appellant / defendant was of the appellant / defendant having bought the property from his own monies and in the name of the respondent / plaintiff on account of the respondent / plaintiff being the mother of the appellant / defendant and that the case was covered by Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988, notice of the appeal was ordered to be issued, execution of the judgment and decree sta .....

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..... ined in The Benami Transactions (Prohibition) Act, 1988 and has referred to Section 4(3)(b) thereof. On enquiry, it is informed that the alleged benami purchase is dated 30th October, 2006. 6. It is deemed appropriate to set out herein below Section 4 of The Benami Transactions (Prohibition) Act, 1988 in entirety. The same is as under: 4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any 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 th .....

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..... ther who in equity and good conscience is bound to act in good faith and with due regard to the interest of the one reposing confidence. 12. The counsel for the appellant / defendant however is neither carrying the dictionary from which the definition is stated to have been so quoted nor is aware from which dictionary it is so quoted. He now states that it is quoted from Blacks dictionary. 13. The counsel for the appellant/defendant, on enquiry states that he has not studied any precedents in this regard and is unable to cite any. 14. I am unable to agree. A mother is not a trustee of her major son and does not stand in a fiduciary capacity to her major son. Such notions, held by the appellant / defendant or his counsel, are not supported by any law. Merely because a major son chooses to purchase the property in the name of his mother would not allow him to seek exemption from the societal malice which was sought to be curbed by enactment of the Benami Law and Section 4 whereof was intended to curb such litigation which consumes a lot of time of the Courts. An inkling in this regard can be had from Section 3(2)(a) and 3(2)(b) of the Act as enacted in 1988 as under: 3. Prohibition o .....

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..... ming to be the real owner. It was yet further held that litigation cannot be permitted to be used as a tool of oppression, often forcing the Benami owner to settle with the real owner, though having a valid defence of the Benami Law, for the reason of the property coming under cloud owing to the mere pendency of litigation and thereby depriving beneficial use thereof. Reliance was placed on Anil Bhasin supra inter alia holding that it is only the purchase of property in the name of wife or unmarried daughter which is exempted from the prohibition and even purchase in the name of son or married daughter has not been given that status and that once the legislature has expressly conferred exemption in the name of the wife or unmarried daughter, it is to be deemed that such restricted exclusion cannot be extended or made applicable to others. Reliance was also placed on Pushpa Kanwar Vs. Urmil Wadhawan 2009 SCC OnLine Del 3761 and on D.N. Kalia Vs. R.N. Kalia (2011) 178 DLT 294 wherein the plea, of the plaintiff therein being only the Benami owner and holding the property in trust for the defendant and other family members, was held to be not tenable. 16. The matter is placed beyond an .....

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