TMI Blog2021 (3) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... property as its owner and on his death, the Plaintiffs as the legal heirs and successors are in possession of the same. Having got some information that the Defendant is attempting to alienate the suit property, the Plaintiffs with the apprehension of losing their property have filed the suit for declaration of title, possession and injunction. HELD THAT:- Even without giving any precise definition of the expression fiduciary capacity , it springs out of the relationship which is analogous to the relationship between a trustee and beneficiaries of the trust founded on confidence and trust on the one part and good faith on the other. Adverting to the case in hand, it is seen that it has been pleaded that Padma Charan being a Govt. servant in his anxiety was desirous of avoiding to purchase the property in suit in his name and so he, wished to purchase the property in the name of the brother i.e. Defendant and he did so. Mere mention of the relationship that the Defendant is the brother of Padma Charan would however not suffice the purpose and basing upon that it is not permissible to record the finding that the transaction in question would not come within the prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2016 confirming the judgment and decree dated 04.05.2016 and 13.05.2016 respectively passed by the learned Civil Judge (Senior Division), Berhampur in C.S. No. 149 of 2012. The courts below by the above judgments and decrees have non-suited the Plaintiffs (Appellants). The suit filed by the Appellants as the Plaintiffs thus has been dismissed by the courts below. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs' case is that their predecessor-in-interest namely Padma Charan Bahinipati and one Lingaraj Bahinipati i.e. the Defendant are two brothers being son of Raghunath Bahinipati. Padma Charan Bahinipati is elder to Lingaraj Bahinipati. Upon the death of their father when the Defendant was 9 years old boy, Padma Charan is said to have taken all his care in every front. In the year 1965, the Defendant having obtained MBBS degree ultimately went to United Kingdom for higher study. It is the further case of the Plaintiffs that in the year 1971, Padma Charan purchased the suit property on his own by spending his earning without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale deed standing in the name of the Defendant is not covered by the exception as provided in clause (b) of sub-section-(3) of section 4 of the Act. According to him, the relationship between Padma Charan and his brother (Defendant) on the other is clearly based on trust and confidence and that having been established in evidence, the courts below have misdirected themselves in ignoring the factual context in which the question arises and erred in law by holding that the Defendant did not stand in a fiduciary capacity vis- -vis Padma Charan Bahinipati. He therefore submitted that this appeal be admitted on the following substantial question of law:- Whether the finding of the learned courts below that the benami transaction in respect of the suit property does not come under the exception as provided in clause (b) of sub-section (3) of section 4 of the Act is in consonance with the facts and circumstances as those emerge in the evidence let in upon the base of the pleadings? 6. The case of the Plaintiffs is that Padma Charan being the elder brother had purchased the suit property in the name of his younger brother i.e. Defendant in the year 1971. At that time Padma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It may be stated here that by the Amendment Act 43 of 2016 with effect from 01.11.2016, above sub-section (3) with the clauses (a) and (b) to section 4 has been omitted. The position has been well settled by the decisions of the Hon'ble Apex Court that the provision contained in section 4 of the Act as to the right to recover property held benami would not be attracted so as to bulldoze the claim in that regard made by the suitor in the suit filed prior to the coming into force of the Act i.e. prior to 05.09.1988 which would find utterance for adjudication and decision on merit but it would so stand as the bar for such suits filed on 5.9.1988 and thereafter. Similarly the defence on that score asserting the right as such if has been tendered after 05.09.1988 would not be allowed but those tendered before would stand for adjudication on merit. 8. The terms fiduciary and fiduciary relationship have been explained in great detail by the Apex Court in case of CBSE vs. Aditya Bandopad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but for the benefit of Padma Charan. Mere mention of the relationship that the Defendant is the brother of Padma Charan would however not suffice the purpose and basing upon that it is not permissible to record the finding that the transaction in question would not come within the prohibition contained in section 4 (1) of the Act being so excepted under clause (b) of sub-section 3 of the Act as it stood on the date of institution of the suit. The legislative intent behind the insertion of that clause (b) to sub-section 3 of the Act which was there till 31.10.2016 is clear that normal relationship through blood or akin relationship as such have no play therein and the party in order to have his case within that saving fold has to plead all those facts and circumstances including their inter se dealings stretching over a period and also prove those by leading clear, cogent and acceptable evidence of such nature that the court would record the finding that the person in whose name the property is held stood in a fiduciary capacity. In the absence of any foundation in the pleadings as to all such facts and circumstances and their proof by clear, cogent and acceptable evidence so as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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