Rajni Rani Gupta vs Sudhir Shekhar Gupta
1997 Latest Caselaw 151 Del

JUDGMENT

S.N. Kapoor, J.

(1) This revision petition is a glaring example of family tension, leading to litigation between the plaintiff/mother and the defendant/son.

(2) According to the petition, she purchased property No. 2707 Main Bazar Sabzi Mandi, Delhi on 29th January 1985 out of her own savings. In that shop husband and father is said to be the tenant and running a chemist shop bequeathed by father-in-law and grandfather of the parties, in favour of his son Inder Shankar Gupta. Tension led to dispute.

(3) MOTHER/PETITIONER along with her husband filed a suit No. 201/91 on 6th May 1991 alleging that she was owner having purchased the same and her husband claimed that he was tenant in the property at monthly rent of Rs. 600.00 and prayed for injunction against their son from interfering in the peaceful possession.

(4) SON/RESPONDENT also filed a suit No. 211/91 on 6th May 1991 itself claiming that he was running his Raghav Ayurvedic Store in half portion of shop No. 2707 and is living on the first floor of the said shop. The property was said to be just Hindu family property.

(5) SON/RESPONDENT subsequently filed a partition suit in April 1992 in High Court of Delhi and claimed that it was joint Hindu family property and it was purchased with the nucleus of Huf fund "in the name of the mother.

(6) Fourth suit No. 762/93 was filed by the mother against her son for recovery of possession of the suit property No. 27 of Main Bazar Subzi Mandi, Delhi and for mense profits/damages to the plaintiff at the rate of Rs. 2000.00 per month w.e.f. 1st May 1993, claiming herself to be the owner.

(7) It is apparent that in all these four matters, there are mainly two questions (i) whether property No. 2707 Main Bazar, Subzi Mandi, Delhi is personal property of Smt. Rajni Rani Gupta or Joint Hindu Family property purchased benami in her name on 29th January 1985?; and (ii) whether in view of the Benami Transactions (Prohibitions) Act 1988, the property in dispute could be treated as Joint Hindu Family Property?

(8) 1 But it is common knowledge that before promulgation of the Ordinance to prohibit the right to recover property held benami, properties, were and could be, purchased benami and the courts did recognise such transactions. The Ordinance took shape of the Act after it was passed by Rajya Sabha on 31st August 1988 and the President gave his assent on 5th September 1988. However, Section 1(3) provides that 'The provisions of Sections 3,5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into effect on 19th day of May 1988", i.e. the date when the ordinance was promulgated. Section 3 deals with Prohibition of benami transactions. It reads as under: 3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction.' (2) Nothing in sub-section (1) shall apply to 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. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. Section 5 provides for acquisition of property held benami without any payment, while Section 8 relates to powers of the Central Government to make rules. We are presently not concerned with Sections 5 and 8 of the Act. 8.2 Earlier there was some controversy about retrospective application of the Act. This controversy has been set at rest by S. Rajagopal Reddy (dead) by LRs. & Ors. Vs. Padmini Chandrasekharan (dead) by LRs., and Heirs of Vrajlal J. Ganatra Vs. Heirs of Parshottam S. Shah, , where provisions of Section 4(1) of the Benami Transactions (Prohibitions) Act 1988 are applicable prospectively and not retrospectively. As such sale deed dated 29th January 1985 remains unaffected. Besides, sub-section (2) provides an exception that no person shall enter into any Benami transaction for it provides that nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and this sub-section (2) also raises a presumption that it shall be presumed that the said property had been purchased for the benefit of the wife or the unmarried daughter. But the presumption is unrebuttable for it could be proved otherwise. Consequently, the son/respondent could challenge that it was benami, though burden of proof being on the son, the mother being recorded owner and there being dispute about the source of payment of amount of the price, it may be an uphill task for the son to establish that property was purchased in the name of the petitioner benami and for the benefit of the entire Joint Hindu Family. It is a question of fact depending predominantly on the intention of the person who paid the money and this question cannot be decided without trial.

(9) When attention of Shri Khadaria, learned counsel for the petitioner was drawn towards this aspect, he submitted that the recalcitrant son wanted to take entire property and was putting hurdles in marriages of three daughters of the petitioner for the petitioner did not have sufficient amount to marry her daughters. He also submitted that this 4th suit No. 762/93 had virtually reached final stage and it would not be desirable to stay the proceedings in this suit.

(10) 1 As submitted by learned counsel for the petitioner Shri Khadaria in his submissions dated 27th January 1997, there could not be any dispute with the proposition that the court in which the first suit is pending must be competent to grant relief claimed in earlier and the subsequent suit. But could it be said that High Court of Delhi at New Delhi has got no jurisdiction to try this last suit, along with the suit for partition filed earlier in this court? I think not. Therefore, this argument also fails. 10.2 As regards the identity of the subject-matter, subject-matter in all the suits is property in question. The two contesting parties have different versions about its being property of an individual or property of Joint Hindu Family. Only label changes with the change of parties and consequential perceptional changes. 10.3 It was also contended that the matter in issue in two suits meant all-disputed material questions. According to the learned counsel in the suit in band, the petitioner sought recovery of possession in respect of the self-acquired property. She was dispossessed on 8th May 1991, whereas in the suit for partition pending in the High Court "has got nothing identical except the respondent has taken the defense of benami transaction and of HUF". The question of ownership and nature of possession of the petitioner and the respondent undisputedly involved in the partition suit. The acid test is whether decision in earlier suit can now be said to be binding on the plaintiff/ petitioner in this suit. And it appears to be so in this case. 10.4 I feel that proceedings in this suit are required to await decision in suit No. 201791 filed on 6th May 1991, as it 'is evident that this suit has been subsequently filed and in this suit issue No. (i) is required to be decided - words and language of the issues may be different. However, remedy of the petitioner may lie elsewhere by moving an application for transfer of all the three other suits pending before District courts to the file of the High .Court of Delhi and get them consolidated, if possible.

(11) Since there does not appear any illegality in the impugned order, I dismiss the petition. Parties are left to bear their own costs.

(12) A copy of this order be sent to the learned Trial Court concerned through learned District Judge for information and to proceed in the matter in accordance with law.