TMI Blog2021 (9) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... operty in question was gifted by the father of the plaintiff to her daughter i.e. the plaintiff. The defendant in the written statement pleaded many other facts relating to joint business of the family and the partition of the assets of family of Late Sh. Krishan Lal Gulati. The assertion made by the defendant in the written statement was denied by filing a rejoinder. The plea raised by the appellant is that the plaintiff was a Benami holder of the property. Such plea is barred in terms of Section 4(2) of the Act. Since such plea was not available in law, the High Court was justified in passing a decree on the basis of the written statement filed. The arguments that the plaintiff was holding the property in fiduciary capacity is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondent(s) : Mr. Rajiv Bajaj, Adv., Mr. Wajeeh Shafiq, AOR ORDER The judgment and decree dated 21.07.2015 passed by the Division Bench of the High Court of Delhi is subject matter of challenge in the present appeal. The Division Bench in an intra court appeal has upheld the judgment and decree passed by the Single Judge on 12.02.2015. The plaintiff-respondent filed a civil suit (O.S. No.1381 of 2010) claiming a decree for mandatory and permanent injunction for directing the defendant, the present appellant to hand over vacant possession of the property in question. The Plaintiff also claimed mesne profits. The plaintiff had pleaded that she became the owner of property bearing No.205, AGCR Enclave, Delhi by v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s her husband Amrit Gulati that the entire 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 . At this stage, it needs to be pointed out that the husband of the plaintiff and the defendant are real brothers being sons of Late Sh. Krishna Lal Gulati. The property in question was gifted by the father of the plaintiff to her daughter i.e. the plaintiff. The defendant in the written statement pleaded many other facts relating to joint business of the family and the partition of the assets of family of Late Sh. Krishan Lal Gulati. The assertion made by the defendant in the written statement was denied by filing a rejoinder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ***omitted by Central Act 43 of 2016 The arguments of learned counsel for the appellant are that the plaintiff is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had any fiduciary capacity as against the defendant is concerned. Mr. Gupta, learned counsel for the appellant referred to the judgment reported in (2019) 4 SCC 367 - Pawan Kumar Vs. Babulal Since Deceased Through Legal Representatives Ors. However, we find that the said Judgment had no applicability to the fact of the present case. In the said judgment, the dispute was between the father and the son. The plaint was filed by the son. An application was filed for rejection of the plaint which was allowed by the High Court but this court reversed it. This Court held that the suit raises triable issue and needed to be decided on merits. That is a case between father and son who are coparceners falling in Clause (a) of sub-Section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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