TMI Blog2018 (10) TMI 1823X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained 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 res integra. It has been held in Anil Bhasin Vs. Vijay Kumar Bhasin . [ 2002 (8) TMI 878 - DELHI HIGH COURT] that property purchased by a parent in the name of a son does not fall under the category of a fiduciary relationship and is clearly hit by the prohibition contained in the Benami Act. Similarly, a property, even if purchased by a son in the name of mother, as is claimed here, would not fall in the category of fiduciary relationship and is clearly hit by the prohibition contained in the Benami Law. Section 4(3)(b) which provides that the property which is held as a trustee or in a fiduciary capacity must be interpreted in the sense that the trustee or a person who is holding the property in a fiduciary capacity has either committed a fraud and got the property title in his name or is in furtherance of law holding property in his name however in the capacity of a trustee or in fiduciary capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stayed and the trial court record requisitioned. The appeal was thereafter adjourned from time to time, mostly on the request of the counsel for the appellant / defendant. The appeal was listed last before this Court on 27th September, 2018 when the advocate for the appellant / defendant again did not appear and sent a request for passover. Observing, that the appellant / defendant, after taking ex parte stay of judgment and decree impugned and without even any substantial question of law, which the sine qua non for entertaining a Second Appeal, having been framed, could not so perpetuate the interim order and further observing that seeing the cause list of this Court, the advocate for the appellant / defendant would have known that the matter if passed over would not reach again, while adjourning the appeal to 17th January, 2019, the interim order was vacated, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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. 7. The counsel for the appellant / defendant contends that the present case falls under Section 4(3)(b) of the Act because the respondent / plaintiff, 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. 8. I have enquired from the counsel for the appellant / defendant, whether the appellant / defendant on 30th October, 2006 was a minor. 9. The answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of benami transactions. (2) Nothing in sub-section (1) shall apply to (a) the purchase of property by any person in the name of his wife or unmarried 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; (b) the securities held by a (i) depository as registered owner under sub-section (1) of section 10 of the Depositories Act, 1996. (ii) participant as an agent of a depository. Explanation. The expression depository and Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub-section (1) of Section 2 of the Depositories Act, 1996. Wherever the legislature wanted to make the presumption a rebuttal one, it made a provision therefor and no such provision has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended 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 any pale of doubt by Aarti Sabharwal Vs. Jitender Singh Chopra (2009) 162 DLT 38 holding that prohibition of the Benami Law will apply, if the property is purchased in the name of the mother and by Ram Prakash Kathuria Vs. Ved Prakash Kathuria (2007) 5 AD (Del) 694 where the plea of the son, that property was purchased by him out of his own funds, though in the name of the mother, was held to be hit by prohibition contained in the Benami Law. 17. As far as J.M. Kohli supra is concerned, the counsel for the appellant / defendant draws attention to the following paragraph thereof: Putting it differently, once Sections 81, 82 and 94 of the India Trusts Act, 1882 have been repealed, they cannot be brought in from the back door, so to say, by giving the same content contained in the repealed provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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