TMI Blog2020 (5) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... junction with the documents placed on record, we are of the opinion that sufficient material facts have been disclosed requiring determination only after a proper trial. At the stage of deciding an application moved by the respondents under Order VII Rule 11 CPC, there was no occasion for the court to have taken pains to interpret and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents. In the instant case where it has been asserted that the suit premises was purchased in the name of the respondent No.1, but from the exclusive contributions made by late Shri R.P. Dhir and therefore in reality, was meant for the benefit of all the family members, the real test would be the source from which the purchase money came from, the nature and status of possession of the property after its purchase, the motive if any for giving the transaction a Benami colour, the position of the parties and their inter se relationship, between the appellants/plaintiffs and the respondent No.1, the overall conduct of the parties in dealing with the suit premises after it was acquired, etc. [Refer: Jaydayal Poddar (Deceased) through LRs and Anr. vs. Mst. Bibi Hazra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 1966, from his own resources and earnings, for the welfare and benefit of the family purchased the land underneath the suit property from Delhi Development Authority (DDA) and in the year 1977 built a single storeyed house thereon; (iv) however at the time of allotment and execution of documents, R.P. Dhir and the defendants decided that for the convenience sake the title documents/allotment etc. be got executed in the name of the eldest son namely K.K. Dhir i.e. defendant no.1 ; (v) thus the suit property was got allotted in the name of defendant no.1; (vi) the defendant no.1 from time to time, in various letters has admitted the said fact; (vii) R.P. Dhir died intestate on 20th December, 1993, leaving five sons and five daughters; (viii) however Anil Kumar Dhir predecessor of the plaintiffs and two of the daughters of R.P. Dhir have also since expired; (ix) the defendants no.1 to 3 have been residing abroad and the defendant no.4 has been residing in government accommodation and the defendants no.5 to 9A have been residing in their matrimonial homes; (x) the three plaintiffs alone are residing in the property and paying cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd all documents relating to the property also remained in the custody of R.P. Dhir and which documents are being illegally withheld with the plaintiffs; (vi) R.P. Dhir retired from employment in the year 1975; (vii) Anil Kumar Dhir was unemployed and was struggling to find gainful employment after graduation and was supported by defendants no.1,2 3 to start a business and though initially acquired a house with the gains of the business but subsequently suffered loss compelling him to sell the house and continued to be supported by his brothers; (viii) R.P. Dhir had no property and no HUF; (ix) even if it were to be believed that the property was purchased by R.P. Dhir in the name of defendant no.1, the claim of the plaintiffs in the present suit would be barred by Benami Transactions (Prohibition) Act, 1988 and the plaint is liable to be rejected; (x) the suit is also barred by limitation inasmuch as the plaintiffs admittedly had knowledge for more than three years prior to the institution of the petition that the property was in the name of the defendant no.1 and the defendant no.1 was getting the leasehold rights in the land converted into freehold; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overlooked the letters dated 27.04.1987 and 12.03.2001 issued by the respondent No.1, wherein he had stated that though the suit premises stood in his name, it was purchased for the welfare and benefit of the family. He also referred to an Agreement dated 13.02.1993 executed by the respondents No.1 to 3, admitting inter alia that the suit premises had been financed by Shri R.P. Dhir. It was thus contended that the suit instituted by the appellants clearly falls within the ambit of the exception carved out under Section 4(3) of the unamended Benami Act. Learned counsel further contended that since the suit was instituted by the appellants in February, 2016, amendment of the Benami Act w.e.f. 01.11.2016, whereby sub-section (3) of Section 4 was omitted, would hardly be of any significance as the said sub-section was in currency when the suit was instituted and therefore, the exception carved out in the said provision, entitled the appellants to take a plea that the suit fell within the purview of the said sub-section. 9. It was further submitted by learned counsel for the appellants that there was no occasion for the learned Single Judge to have examined the document dated 13.02.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her members of a three Judge Bench had arrived at a conclusion that Section 4(1) of the Benami Act does not have any retrospective application. By the same analogy, any amendment to the said enactment by virtue of Act 43 of 2016, that came into effect on 01.11.2016, cannot acquire retrospectivity in a case like the present one where the suit was instituted by the appellants well before the said date, in February, 2016. We therefore have no hesitation in accepting the submission made by learned counsel for the appellants that the amended Benami Act, wherein sub-section (3) of Section 4 was omitted, would not apply to the instant case. Instead, the unamended Act, which included subsection (3) to Section 4, would govern the case. 13. Coming to the next submission made by learned counsel for the appellants that there was ample factual narrative in the plaint as also the documents filed by the appellants/plaintiffs that go to demonstrate that the suit instituted by the appellants falls within the purview of the exception carved out in Section 4(3) of the unamended Act, we may note that in the present case, the impugned judgment has been pronounced on separate applications moved by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pleadings relate to misrepresentation, fraud, undue influence, wilful default etc. As long as the court is satisfied that the plaint discloses some cause of action that requires determination, the plaint ought not to be rejected. At the end of the day, the court must be mindful of the fact that the underlying object of Order VII Rule 11 CPC is to nip in the bud, irresponsible and vexatious suits. At the same time, the opinion of the court that the plaintiff may not ultimately succeed in the suit, ought not to form the basis for rejecting the plaint. 15. The material averments made by the appellants in the suit for partition and permanent injunction instituted by them for seeking partition of the suit premises, set out in para 1 of the impugned judgment and extracted above, would show that the case pleaded by the appellants is as under :- (i) Late Shri R.P. Dhir, a government servant who had retired from the post of Under Secretary from UGC, Government of India, had for the welfare and benefit of the family members purchased the suit premises/plot from his own resources and earnings from DDA in the year 1966 and thereafter raised construction and built up a single sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siblings. (pg. 86) I feel that the matter of family property has remained unresolved for far too long. The wording of the General Power of Attorney sent by Anil was not suitable and I sent my comments to all of you on the 28th March, 1994. Since then I have not received any constructive reply from either Ashok or Anil on this matter. I outline below the options available and would ask all of yhou to consider it seriously and let me know your comments and suggestions, in writing, sop that the situation can be resolved to the satisfaction of all concerned. OPTION 1) In our family meeting in India in January, 1994, it was decided to construct a further one and half storeys to be financed exclusively by Ashok and Anil. Upon completion Anil and his family will continue to occupy the ground floor and Ashok and his family will occupy the first floor. The storey on the second floor will be kept as common family property. Upon completion, a suitable Power of Attorney or a long Lease for 999 years will be granted to Anil for the ground floor and a similar document to Ashok for the first floor. 17. Vide document dated 13.02.1993 executed by the respondents No.1 to 3, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis added) 20. An instructive discussion on the scope of sub-section (3) of Section 4 of the Banami Act is found in Marcel Martins vs. M. Printer and Others reported as (2012) 5 SCC 342 , where the Supreme Court has elaborated the definition of the expression, fiduciary capacity used in sub-section 3(b) of Section 4 of the Benami Act and concluded that for determining whether a relationship is based on a fiduciary capacity, the court will have to take into consideration the factual context in which the question arises and only in that background, can any finding be returned. We may usefully reproduce below, the view taken in paras 28 to 38 of the captioned case:- 28. The critical question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trust and confidence involved in it and the scrupulous good faith and condor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate. 33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines fiducial relation as under: There is a technical distinction between a fiducial relation which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and confidential relation which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised. Generally, the term fiduciary applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made. 37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay [(2011) 8 SCC 497], wherein Raveendran, J. speaking for the Court in that case explained the terms fiduciary and fiduciary relationship in the following words: (SCC pp. 524-25, para 39) 39. The term fiduciary refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term fiduciary relationship is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the respondents/plaintiffs were declared to be coparceners of certain properties to the extent of their contribution made therein. 22. In the present case, the stage of evidence had not even been arrived at. In fact, only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No.1 stood in a fiduciary capacity vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act. In this context, we may usefully refer to a recent decision of the Supreme Court in Pawan Kumar vs. Babulal Since Deceased through Legal Representatives and Ors. reported as (2019) 4 SCC 367, wherein it has been held as below:- 13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents. 24. In the instant case where it has been asserted that the suit premises was purchased in the name of the respondent No.1, but from the exclusive contributions made by late Shri R.P. Dhir and therefore in reality, was meant for the benefit of all the family members, the real test would be the source from which the purchase money came from, the nature and status of possession of the property after its purchase, the motive if any for giving the transaction a Benami colour, the position of the parties and their inter se relationship, between the appellants/plaintiffs and the respondent No.1, the overall conduct of the parties in dealing with the suit premises after it was acquired, etc. [ Refer: Jaydayal Poddar (Deceased) through LRs and Anr. vs. Mst. Bibi Hazra and Ors. reported as (1974) 1 SCC 3] It would therefore be imperative to weigh the evidence in the instant case for the court to conclusively decide as to whether the appellants/plaintiffs can succeed in their claim that the respondent No.1 is holding the suit premises in a fiduciary capacity, for the benefit of all the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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