TMI Blog2015 (7) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... property and to whom such property devolves in their independent/separate capacity by way of intestate succession under the Hindu Succession Act. We repeat, the plaintiff, being the daughter-in-law of the family is not a coparcener in the Hindu Undivided Family of Late Sh.Krishan Lal Gulati. In view of the fact that requisite (ii) noted above is not fulfilled, exception contained in Section 4(3)(a) of the Act has no application in the instant case. Plea of benami ownership contained in Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 - The pleadings made in the written statement by the defendant have been noted by us in great extenso in the foregoing paragraphs. There is not even a whisper in the entire written statement that the plaintiff in whose name the suit property is held is a trustee or was otherwise standing in a fiduciary capacity towards the defendant and suit property was held by the plaintiff for benefit of defendant for whom she is the trustee or towards whom she stands in a fiduciary capacity . In view of the fact that there are no averments in the written statement to bring the defence raised by the defendant within the exception pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Late Sh. Kishan Lal Gulati. 2. The genealogy tree of the family of Late Sh. Kishan Lal Gulati is as under:- Late Sh. Kishan Lal Gulati I --------------------------------------------------------------- I Ashok Gulati (Son) I Amrit Gulati (Son) I Anil Gulati (Son)/Defendant I Promila Gulati (Wife)/Plaintiff 3. Ms. Promila Gulati instituted a suit for permanent and mandatory injunction and mesne profits in the year 2010 against Mr. Anil Gulati (brother of her late husband) in respect of property bearing Municipal No. 205, AGCR Enclave, Delhi-110 092 (hereinafter referred to as the Suit Property ). 4. Needless to state, Ms.Promila Gulati was the plaintiff and her brotherin-law was the defendant in the suit. In our decision we shall be referring to the parties by their nomenclature in the suit. 5. In essence, it was pleaded in the plaint that the plaintiff is the absolute owner of the suit property by virtue of a registered Gift Deed dated September 03, 1984 executed by her fathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said alleged sale transaction. It was pleaded that during his lifetime Late Sh.Kishanl Lal Gulati, from out of his own funds, and that of the joint family raised the construction of a building on the plot. 8. In order to clearly understand the pleadings in the written statement relating to the character of suit property and status of ownership of the plaintiff in the suit property, it would be relevant to reproduce paragraph 6 of the written statement. It reads as under:- 6. That the present suit filed by the plaintiff is not maintainable as the plaintiff has not approached this Hon'ble Court with clean hands. It is settle proposition of law that a person who approached the Court with unclean hands is not entitle for any relief not to speak of discretionary relief. The plaintiff herein has concealed the material facts from this Hon'ble Court and has not stated true facts before this Hon'ble Court. It is submitted that the father-in-law of the plaintiff and father of the defendant namely Sh.Krishan Lal Gulati was blessed with three sons and one daughter. The names of the sons of Sh. Krishan Lal Gulati are Sh.Ashok Gulati, Sh.Amrit Gulati husband of the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid property against the consideration by way of Gift Deed is duly witnessed by the witness Harbans Lal who can come and depose on the same. Moreover it is an admission of the plaintiff as well as her husband Amrit Gulati that the entire sale consideration amount was paid by the father of the replying defendant and the same was duly recorded during the conversation which falsify the case of the plaintiff. After having purchased the suit property it was decided to construct it into two parts, first family of Amrit Gulati will shift there and then Anil Gulati his parents will shift there. Accordingly the father of the replying defendant raised the construction from his own funds and from the funds of joint business by the year 1986. The entire ground floor and one room on the first floor was completed and his family shifted in the suit property and started residing therein. It will not be out of place to mention herein that in the year 1985 a flat bearing No.EA-39, SSF Area G-8, Maya Enclave, New Delhi was purchased by the father of the replying defendant in the name of the wife of Sh.Ashok Gulati and the family of Sh.Ashok Gulati shifted there. Somewhere i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urce of income and could not have paid the consideration amount to her father for getting the Gift Deed in her favour nor did she has any money to raise the construction on the suit property on any portion. The claim of the plaintiff is false, frivolous and baseless and against the family arrangement which she is under obligation to respect and honour the same. The defendant is having sufficient proofs to show that the construction was raised from the funds of his father and joint funds and, therefore, on account of concealment of material facts the suit of the plaintiff is liable to be dismissed. Moreover as submitted above the plaintiff have no right, title and interest in the property except the ground floor hence the suit of the plaintiff is liable to be dismissed with heavy costs. (Emphasis Supplied) 9. In the replication filed, the plaintiff denied the averments made by the defendant in the written statement, particularly the averment(s) that the plaintiff is a benami owner of the suit property. It was pleaded that Late Sh.K.B.Midha, the father of the plaintiff, gifted the plot over which the suit property is constructed out of love and affection for his daughter i.e. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement that an oral family settlement was arrived between the family of Late Sh. Krishan Lal Gulati whereby the first, second and mezzanine floors of the suit property fell into the share of the defendant cannot be pleaded in view of the facts that:- (i) defendant has not disputed that the Gift Deed dated September 03, 1984 whereby the father of plaintiff gifted the plot on which the suit property was constructed to the plaintiff is a registered document; (ii) defendant has also not disputed that on basis of Gift Deed dated September 03, 1984, a Conveyance Deed dated October 12, 2000 in respect of the suit property has been registered in favour of the plaintiff; (iii) defendant has taken no steps for cancellation of Gift Deed dated September 03, 1984 and Conveyance deed dated October 12, 2000 and no proceedings are pending in said regard and (iv) no written document has been placed on record by the defendant to show/indicate that Late Sh .Kishan Lal Gulati (father of defendant/father-in-law of plaintiff) had paid sale consideration of the plot on which the suit property was constructed to Late Sh .K.B. Midha (father of the defendant) upon which Late Sh. K.B. Midha had executed Gift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily (family of Late Kishan Lal Gulati) and became joint family property by virtue of the operation of rule of blending. B The learned Single Judge has not adverted to sub-Section (3) of Benami Transaction (Prohibition) Act, 1988 despite a specific plea taken before him, that the defence of benami ownership of the plaintiff over the suit property taken by the defendant in his written statement is not barred in view of the two exceptions relating to the defence of benami ownership, contained in sub-Section (3) of Section 4 of Benami Transactions (Prohibition) Act, 1988. Counsel argued that a meaningful reading of the written statement of the defendant goes to show that the defence of benami ownership of the plaintiff taken by the defendant clearly fell within the two exceptions relating to benami ownership contemplated in sub-Section (3) of Section 4 of Benami Transactions (Prohibition) Act, 1988. C The learned Single Judge committed an error in granting prayer for decree of admission made by the plaintiff for the reason the real import of the transaction whereby the father of the plaintiff gifted the plot over which the suit property was constructed to the plaintiff and status ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Supreme Court in Mallesappa s case (supra) is that: The doctrine of blending postulates that the owner of the separate property is a coparcener who has an interest in the coparcenery property and desires to blend his separate property with the coparcenery property . 18. Being the daughter-in-law of Late Sh.Kishan Lal Gulati, the plaintiff cannot be a coparcener in the Hindu Undivided Family of Late Sh.Kishan Lal Gulati and thus the rule of blending has no application in the present case. As a necessary corollary thereof, the first argument predicated upon the rule of blending raised by the appellant must fail. 19. The Benami Transactions (Prohibition) Act, 1988 was enacted to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto. 20. Section 2(a) of the Benami Transactions (Prohibition) Act, 1988 defines Benami Transaction to mean any transaction in which property is transferred to one person for a consideration paid or provided by another person . 21. Section 3 of the Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions and reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, it is obvious that for a valid defence if raised by the defendant, to bring the case in the exception provided in clause (a) of sub-Section (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988, following three requisites are essential to be pleaded:- (i) Existence of a Hindu Undivided Family; (ii) Plaintiff in whose name the suit property is held is a coparcener of the said Hindu Undivided Family; and (iii) Suit property is held by the plaintiff for the benefit of the coparceners in the family. 25. Section 4(3)(a) of the Benami Transactions (Prohibition) Act, 1988 uses the terms Hindu Undivided Family and Coparcener . It needs no gainsaying that a Hindu Coparcenary is a narrower body than the joint family; only such members of Hindu Undivided Family who acquire by birth interest in the joint or coparcenary property can be the members of the coparcenary or coparceners. (See the decision of the Supreme Court reported as (1985) 2 SCC 321 State of Maharashtra vs. Narayan Rao). The exception contained in Section 4(3)(a) of the Act restricts its benefit only to property held by a coparcener in a Hindu Undivided Family as opposed to any M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1988 does not save the defence raised by the defendant from being barred in law. 31. We now deal with the judgments relied upon by the counsel appearing for the plaintiff. 32. In Martin Marcel s case (supra), the property of the Municipality was in the tenancy of the mother of the parties; the Municipality floated a scheme to sell its properties to the occupants; however before the sale could be affected the mother passed away leaving two daughters, son and husband as her only legal heirs; though all the said heirs were in the occupation of the property but the Municipality insisted on sale/transfer of one legal heir only and for which reason the husband and daughters consented to transfer in the name of the son; the sale consideration was paid by the husband and the husband had bequeathed a Will bequeathing the property equally to the son and daughters. 33. It was in context of the aforesaid facts that the Supreme Court held the purchase of the property in the name of son to be in trust/confidence for his sisters and his father and prohibition contained in Benami Transactions (Prohibition) Act, 1988 to be inapplicable. In essence, four facts which led the Supreme Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the decisions taken? On what day, month or year were the decisions taken? Nothing has been pleaded. The averments in the written statement are as vague as vagueness can be. 40. Rules of pleadings stand crystallized under various rules of Order VI of Code of Civil Procedure. Rule 2 of Order VI reads as under:- 2. Pleading to state material facts and not evidence (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegations being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. 41. Highlighting that the mandate of the Rule is that the pleadings must contain a statement in the concise form of the material facts on which the party pleading relies for its claim or defence, it needs however be noted that Rule 4 of the same Order further expands by requiring particulars to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial facts relating to the tenancy, the mere raising of a plea of tenancy is not enough for the purpose of raising an issue. The Court cautioned against a pedantic approach to the problem and directed that Courts must ascertain the substance of the pleading and not the form, in order to determine the same. It was observed that pertaining to a claim of tenancy, the exact nature of the right which is claimed is to be set-forth and no issue pertaining to existence of tenancy could be framed on a vague plea. 45. In the decision reported as 2012 (6) SCALE 340 A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam it was held as under:- 27. The pleadings must set-forth sufficient factual details to the extent it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the Court must carefully look into it while deciding a case and insist that those who approach the Court must approach it with clean hands. 46. In the decision reported as 2012 (5) SCC 370 Maria Margarida Sequeria Fernandes vs. Era ..... X X X X Extracts X X X X X X X X Extracts X X X X
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