Delhi High Court

Aarti Sabharwal vs Jitender Singh Chopra on 18 August, 2009

Author: S. Muralidhar

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                          CCP No. 180 of 2008 in CS(OS) 276/2007


        AARTI SABHARWAL                            ..... Petitioner
                    Through: Mr. Y.P.Narula, Senior Advocate with
                    Mr.Kirti Uppal and Mr. Sanjeet Singh, Advocates.


                          versus


        JITENDER SINGH CHOPRA & ORS.          ..... Respondents
                      Through: Mr. Sandeep Sethi, Senior Advocate
                      with Mr. Kamal Chaudhary and Mr. Nikhil Bhalla,
                      Advocates for Defendants 2 & 3.
                      Mr. T.K.Ganju, Senior Advocate with Mr. Ravi
                      Shankar Nanda and Mr. Varun Tyagi, Advocates
                      for Contemnor/Respondent No.6/Applicant in IA
                      No. 9739/2009.
                      None for Defendant No.1.


                                        WITH

                                   CS(OS) 276/2007


        AARTI SABHARWAL                           ..... Plaintiff
                    Through: Mr. Y.P.Narula, Senior Advocate with
                    Mr.Kirti Uppal, Advocate.


                          versus


        JITENDER SINGH CHOPRA & ORS.          ..... Defendants
                      Through: Mr. Sandeep Sethi, Senior Advocate
                      with Mr. Kamal Chaudhary and Mr. Nikhil Bhalla,
                      Advocates for Defendants 2 & 3.
                      None for Defendant No.1.


        CORAM:
CCP No.180/2008 & CS(OS) No. 276/2007                              page 1 of 24
          HON'BLE DR. JUSTICE S. MURALIDHAR

        1.Whether reporters of the local newspapers
            be allowed to see the judgment?                      No
        2.To be referred to the Reporter or not ?                Yes
        3. Whether the judgment should be reported in the        Yes
            Digest ?

                                    ORDER

18.08.2009

CCP No. 180 of 2008 in CS(OS) 276/2007 & I.A.No. 4037/2009 in CS(OS) No. 276/2007

1. This is a contempt petition filed by the Plaintiff in CS (OS) No. 276 of

2007 seeking punishment of the respondents/contemnors for willful

disobedience of the order dated 15th February 2007 passed by this Court in

the suit.

2. The background to the filing of the present petition is that the Petitioner

(hereinafter referred to as the Plaintiff) was married to the Respondent

No.1/Defendant No.1 (in the suit) on 27th October 2004. On account of the

differences that arose between the parties, the Plaintiff lodged a complaint

against Defendant No.1 (husband), Defendant No.2 (father-in-law),

Defendant No.3 (mother-in-law) with the Crime Against Women Cell,

Nanakpura, New Delhi under Sections 406/498A IPC. Pursuant thereto an

FIR was registered against the three Defendants on 3rd January 2007.

3. The Plaintiff also instituted proceedings against the Defendants under the CCP No.180/2008 & CS(OS) No. 276/2007 page 2 of 24 Protection of Women from Domestic Violence Act, 2005 („PWDVA‟)

claiming inter alia maintenance and right of residence and interim orders on

those terms.

4. The proceedings under the PWDVA before the learned Metropolitan

Magistrate („MM‟), New Delhi witnessed the passing of an interim order in

favour of the Plaintiff on 7th December 2006 directing the Respondents "not

to dispose of the shared household i.e. 32, Sultanpur Farms, Mehrauli." The

said interim order was continued on 11th December 2006 and again on 12th

December 2006 till 18th December 2006. A perusal of the order passed by

the learned MM on 18th December 2006 shows that the said interim order

was not continued thereafter.

5. The present suit was filed by the Plaintiff on 14 th February 2007 under

Section 18 of the Hindu Adoption & Maintenance Act, 1956 („HAMA‟)

seeking the following relief:

"(a) pass a decree of permanent injunction restraining the Defendants, their servants, agents, attorneys from selling, alienating or creating any third party interests in property No. 32 Sultanpur Farms, Mehrauli, New Delhi and Hotel Clarimont at Mehrauli Gurgaon Road, Aaya Nagar, Mehrauli, New Delhi.

(b) pass a decree of declaration thereby declaring the Divorce Proceedings filed by Defendant No.1 before Guildford Country Court, U.K. as void and without CCP No.180/2008 & CS(OS) No. 276/2007 page 3 of 24 jurisdiction and that the law applicable would be the Indian law and in the meantime restrain the Defendant No.1 from pursuing the same.

(c) pass a decree of maintenance under the Hindu Adoption & Maintenance Act and award a monthly maintenance of Rs.7.5 lacs or any other amount as adjudicated by the Hon‟ble Court on the basis of status and income of defendants plus right of residence to the Plaintiff."

6. The averments, inter alia, in the plaint were that the Defendant No.1who

was a British passport holder had moved to the United Kingdom (U.K) to

file a divorce petition against the Plaintiff there. On receipt of summons she

sent a letter to the said court pointing out inter alia that the allegations made

by Defendant No.1 are false and that she has no resources to defend herself

in the courts in UK. In the meanwhile the Plaintiff who had returned to

Delhi from Dubai, where the parties were last residing together, tried to

enter her matrimonial home at 32, Sultanpur Farms, Mehrauli, New Delhi

where Defendants 2 and 3 were also residing. She was however threatened

with dire consequences and her life was threatened as well. It was only

thereafter that she filed an application under the PWDVA on 5th December

2006 seeking the reliefs as noticed hereinbefore. It was averred in the plaint

that "the Plaintiff had learnt that Defendants 2 to 4 in connivance with each

other and at the behest of Defendant No.1 were trying to sell the immovable

properties in Delhi/Gurgaon which directly or indirectly belong to Defendant

CCP No.180/2008 & CS(OS) No. 276/2007 page 4 of 24 No.1 by virtue of a so-called Power of Attorney given in favour of

Defendant No.2 by the said Defendant No.1." It was apprehended that the

Defendants were attempting to defeat the claim of the Plaintiff for

maintenance and damages.

7. In para 23 of the plaint the Plaintiff has described the immovable

properties which according to her constituted the „shared household‟. These

included the property at 32, Sultanpur Farms, Mehrauli, New Delhi and a

Motel by the name of "Clarimount" in Aaya Nagar Farms, Mehrauli, New

Delhi. It was claimed that there was also a flat in Gurgaon the details of

which were not known to the Plaintiff. In para 31 the Plaintiff asserted that

"being legally wedded wife of Defendant No.1 and daughter-in-law of

Defendant Nos. 2 & 3 is entitled to maintenance under the Hindu Adoption

& Maintenance Act, 1956. This Hon‟ble Court and the Hon‟ble Supreme

Court of India has held that the wife was entitled to 1/3 rd of husband‟s

income as maintenance. The Plaintiff is entitled to the entire hotel property

as it belongs to Defendant No.1/husband."

8. Thereafter in the same paragraph the assets and business establishment of

the Defendants "to the best of the knowledge of the Plaintiff" were set out.

and the properties included Farm House at 32, Sultanpur Farms, Mehrauli,

New Delhi and Hotel Clairmont in Mehrauli Gurgaon Road, Aaya Nagar,

New Delhi.

CCP No.180/2008 & CS(OS) No. 276/2007 page 5 of 24

9. Along with the suit the Plaintiff also filed an application being IA

No.1711 of 2007 under Order XXXIX Rules 1 and 2 CPC seeking an

interim injunction restraining the Defendants from disposing of or alienating

the aforementioned properties during the pendency of the suit.

10. On 15th February 2007 the order passed by this Court in IA No. 1711 of

2007 reads as under:

"Notice. Mr.Bakshi accepts notice and states that there is already an order passed by the learned Metropolitan Magistrate in the criminal proceedings filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 to the effect that the property bearing No. 32, Sultanpur Farm, Mehrauli, New Delhi, shall not be disposed of, alienated, sold or third party interest created. He states that the defendant would abide by the said order. The defendants are additionally restrained from selling, alienating or creating any third party interest in Hotel Clairmont, Aya Nagar, Mehrauli, New Delhi. Mr. Bakshi further states that defendants No.2 and 4 shall not leave the country without the permission of the Court till the next date of hearing. Reply be filed within one week. Rejoinder be filed within one week thereafter.

List on 5.3.2007."

11. The proceedings in the suit show that the said interim order was

continued on 5th March 2007. On 12th March 2007 there was an interim CCP No.180/2008 & CS(OS) No. 276/2007 page 6 of 24 order restraining Defendant No.1 from pursuing the divorce proceedings in

the court in UK. The interim order was continued on 10th May 2007 as well.

12. It appears that in the meanwhile the learned MM took up for

consideration the application for interim maintenance and other reliefs

sought by the Plaintiff in the proceedings under the PWDVA. By an order

dated 28th May 2007 the learned MM restricted the interim relief granted to

the Plaintiff to that of Rs.30,000/- per month for accommodation charges

and Rs.70,000/- per month for maintenance. It was held by the learned MM

in the said order dated 28th May 2007 "that so far as Respondents 2 to 4 are

concerned, in my opinion they are not liable to provide accommodation and

maintenance to the complainant." It may be mentioned here that

Respondent No.4 referred to above is the brother of the husband. To

complete this part of the narration it should be noticed that thereafter on 19th

February 2009 the learned MM dismissed the petition under the PWDVA for

default.

13. Meanwhile the present suit was again listed before this Court on 6th June

2007. Defendant No.2 sought modification of the interim order dated 15 th

February 2007 seeking permission to travel abroad. Learned counsel for the

Defendant No.2 referred to the earlier order dated 15th February 2007

restraining the Defendants from alienating or creating third party interests in

both properties i.e. Hotel Clairmont, Aaya Nagar, New Delhi and 32, CCP No.180/2008 & CS(OS) No. 276/2007 page 7 of 24 Sultanpur Farms, Mehrauli, New Delhi and submitted that "his clients would

be bound by the order dated 15th February 2007 and undertake to comply

with the orders." The case was thereafter listed on 7 th August 2007. On that

date the interim order was not continued. However on 9th October 2007 it

was continued.

14. On 18th January 2008 the following order was passed by this Court:

"It is stated by the learned Counsel for Defendants No. 1 and 4 that two applications, one on behalf of Defendant No. 1 and her on behalf of Defendant No. 4 for condonation of delay in filing WS were filed but same are not on record. Learned Counsel seeks time to check with the Registry.

The matter be listed on 22nd May, 2008 Parties shall file all documents within four weeks. No further opportunity shall be given for filing documents.

Interim order to continue till then."

15. The immediate next date of hearing was 22nd May 2008 when the

following order was passed:

"It is stated by Counsel for the parties that parties are trying for a negotiated settlement.

List on 17th November, 2008."

16. What is significant is that on 22nd May 2008 the interim order which was

to expire on that day was not continued. In fact, this is the main bone of

CCP No.180/2008 & CS(OS) No. 276/2007 page 8 of 24 contention as far as the present contempt petition is concerned because of

what transpired between 22nd May 2008 and the next date i.e. 17th

November, 2008.

17. On 9th June 2008 the property at 32, Sultanpur Farms, Mehrauli, New

Delhi was sold by Defendant No.3 by a registered sale deed to Aarken

Advisors Pvt. Ltd., which has since been impleaded as Respondent No.6 in

the contempt petition.

18. The present petition was filed on 29th February 2008 in which it was

inter alia stated that the Respondents 1 to 3 had willfully disobeyed the

interim orders passed by this Court on 15th February 2007 which was

thereafter continued from time to time. As regards the property i.e. Hotel

Clairmont, Aaya Nagar, Mehrauli, New Delhi it was alleged that Defendants

2 and 3 had sometime in May/June 2008 increased the share capital of the

Fountainhead Motels Pvt. Ltd. („FMPL‟), of which they were Directors, and

which company was in fact running Hotel Clairmont. It is alleged that they

increased the shared capital from Rs.5 lakhs to Rs.15 lakhs, appointed

Seema Sharma (Respondent No.4 in the contempt petition) as a Managing

Director on 2nd June 2008. Earlier on 12th May 2008 a mortgage was created

in favour of one Baljit Singh (Respondent No.5 in the contempt petition) for

a loan of Rs.7,76,00,000. It is alleged that Respondents 4 and 5 were in total

control of Hotel Clairmont. It is submitted that by this method the

CCP No.180/2008 & CS(OS) No. 276/2007 page 9 of 24 Respondents 2 and 3 had in willful disobedience of the interim orders,

created a third party interest on the property at Aya Nagar, Mehrauli, New

Delhi in favour of the said Baljit Singh. A cash receipt evidencing the loan

taken from Baljit Singh and photocopies of Form 8 and Form 23 filed

pursuant to Sections 125, 127, 132 and 135 of the Companies Act, 1956

have been placed on record. As regards the property at Sultanpur Farms,

Mehrauli, New Delhi it was averred in para 13 "Respondents 1-3 have also

apparently sold 32, Sultanpur Farms, Mehrauli, New Delhi in violation of

the undertaking given to this Hon‟ble Court."

19. In reply to the contempt petition it was pointed out by

Defendants/Respondents 2 and 3 that they had in fact not violated or

willfully disobeyed any of the orders passed by this Court. It was submitted

that the learned MM in fact did not continue the restraint orders vis-à-vis the

property at 32, Sultanpur Farms, Mehrauli, New Delhi beyond 18th

December 2006. Therefore as on 15th February 2007 when the suit was

listed before this Court an erroneous statement was made on behalf of the

Defendants to this court by their counsel that the said restraint order will be

continued to be obeyed by them. The other statements made from time to

time including the one on 6th June 2007 are also stated to have been made

under some mistaken impression that the interim order passed by the learned

MM prior to 18th December 2006 was continuing. It is contended that the

interim order passed by this Court was not continued in any event beyond

CCP No.180/2008 & CS(OS) No. 276/2007 page 10 of 24 22nd May 2008. The sale deed was executed only thereafter on 9th June 2008

and therefore as regards the property at 32, Sultanpur Farms, Mehrauli, New

Delhi the sale by Respondent/Defendant No.3 to Aarken Advisors Pvt.Ltd.

was not in disobedience of the interim order dated 15 th February 2007. As

regards the property at Aya Nagar, Mehrauli it is submitted that the property

was purchased by FMPL by virtue of a sale deed dated 29th March 2006

much prior to the commencement of the matrimonial dispute. It is denied

that there has been any alleged transfer of shares which can amount to a

disobedience of the interim order passed by this Court. It is denied that the

Respondents had sold their interests in the property as alleged by the

plaintiff.

20. The case of Respondent No.6 is that he is a bonafide purchaser. It is

pointed out that as early as on 17th November 2006 an agreement was

executed whereby by Respondent/Defendant No.3 agreed to sell the property

at 32, Sultanpur Farms, Mehrauli, New Delhi to Respondent No.6. Of the

total consideration of Rs.15 crores for which the property was agreed to be

sold, a sum of Rs.5 crores already stood paid to Defendant No.3 even prior

to the execution of the sale deed. It is submitted that although in para 25 of

the plaint the Plaintiff acknowledges that she was aware of the sale

transaction, and even named Respondent No.6, she chose not to make

Respondent No.6 as a necessary and appropriate party to the suit. It is

submitted that the interim order which was adverse to the Respondent No.6

CCP No.180/2008 & CS(OS) No. 276/2007 page 11 of 24 was obtained behind the back of Respondent No.6 by the Plaintiff. It may

be mentioned here that Respondent No.6 has also filed IA No. 9047 of 2009

seeking to intervene in IA No. 4037 of 2009 filed by Defendants under

Order VII Rule 11 CPC.

21. The submissions of Mr. Y.P.Narula, learned Senior counsel appearing

for the Plaintiff, Mr. Sandeep Sethi, learned Senior counsel appearing for the

Defendants and Mr. T.K. Ganju, learned Senior counsel appearing for

Respondent No.6 have been heard.

22. It is submitted by Mr. Narula that a perusal of the sale deed dated 29 th

March 2006 by which the property at Aya Nagar was purchased by FMPL

would show that it was in fact a sham transaction. The sale was made by

Defendant No.1 to FMPL a company of which Defendant No.2 was the

Director. In fact, Defendant No.2 himself signed the sale deed as a power of

attorney of Defendant No.1. It was submitted that this was only to defeat the

rights of the Plaintiff. It is further submitted that the parties were attempting

to settle their disputes and on 29th March 2007 the learned Additional

Sessions Judge while dealing with the proceedings under the PWDVA

recorded the terms of settlement. In terms thereof a sum of Rs.4 crores and

property worth Rs.60 lakhs was to be given to the Plaintiff. However the

Respondents at the last moment backed out of the settlement leaving the

Plaintiff without any option but to pursue the proceedings under the

CCP No.180/2008 & CS(OS) No. 276/2007 page 12 of 24 PWDVA. It is submitted that there are averments in the plaint which at this

stage have to be taken at its face value, which show that the funding for the

properties both at Aaya Nagar as well as Sultanpur Farms was provided by

Defendant No.1. According to the Plaintiff her claim for maintenance is

essentially against Defendant No.1 and in order to recover maintenance she

lays claim to the properties of Defendant No.1 which are held benami.

23. It is pointed out by Mr. Narula that the bar under the Benami

Transactions (Prohibition) Act, 1998 (Benami Act) would not apply in such

instances because the Plaintiff is not seeking any declaration vis-à-vis these

properties as a rightful owner herself. The Plaintiff is only claiming that her

husband Defendant No.1 is a rightful owner and that these properties should

be made available for her to recover maintenance due to her from him.

Likewise, the claim for maintenance under the HAMA is also essentially

against the husband. Insofar as the properties are being held benami by

either Defendants 2 or 3, they become necessary parties to the suit. It is

further submitted that Respondent No.6 is not a bonafide purchaser as the

agreement to sell dated 17th November 2006 did not create any right in his

favour. Section 54 of the Transfer of Property Act is referred to. The

Plaintiff contests the claim of Respondent No.6 that he is a bonafide

purchaser of the property at 32, Sultanpur Farms, Mehrauli, New Delhi.

CCP No.180/2008 & CS(OS) No. 276/2007 page 13 of 24

24. Mr. Narula also refers to the definition of the word „fiduciary‟ as set out

in the Law Lexicon-cum-Digest and refers to Section 16 of the Indian

Contract Act, 1872 to contend that Defendant No.3 was entirely under the

control of her son as far as the transaction by which she either got title to the

property at 32, Sultanpur Farms, Mehrauli, New Delhi or sold it

subsequently to Respondent No.6. In the circumstances, according to Mr.

Narula, there is no need for a specific prayer to seek cancellation of the

documents of title by which Defendant No.3 was claiming to be the sole

owner of the said property or of her right to convey absolute title by way of

a sale to Respondent No.6.

25. On behalf of Defendants 2 and 3 it is submitted by Mr. Sethi that the sale

deed dated 9th June 2008 executed by Defendant No.3 in favour of

Respondent No.6 was not in fact in willful disobedience of any interim order

passed by this Court. Referring to the judgment of the Supreme Court in

Ashok Kumar v. State of Haryana (2007) 3 SCC 470 he pointed out that the

interim order cannot be said to have been extended beyond 22nd May 2008.

It is pointed out that there is a bar to laying a claim for maintenance against

Defendants 2 and 3 under Section 18 HAMA. That section makes it

absolutely clear that such a claim is maintainable only against the husband.

Reference is made to the judgment of the Supreme Court in Vimlaben

Ajitbhai Patel v. Vatslaben Ashokbhai Patel (2008) 4 SCC 649.

CCP No.180/2008 & CS(OS) No. 276/2007 page 14 of 24

26. Mr. Sethi also questions the resort to filing of the contempt petition for

alleged disobedience of the interim orders passed by this Court. The

appropriate remedy would be to file a petition, if any, under Order XXXIX

Rule 2A CPC. Reliance is placed on the judgment in Ishwar Industries Ltd.

v. The Crocus Chattels Pvt. Ltd. 128 (2006) DLT 10. Mr. Sethi also

distinguishes the judgment in Radhika Narang v. Kuldeep Narang 156

(2009) DLT 637 (DB) relied upon by Mr. Narula as the question whether the

Plaintiff is entitled to seek maintenance at all under Section 18 HAMA

against her father-in-law or mother-in-law was not decided in the said case.

27. Essentially on the same averments the Defendants 2 and 3 have filed IA

No. 4037 of 2009 under Order VII Rule 11 CPC. The specific ground on

which rejection of the plaint is sought is that the suit as presently formed

does not disclose any cause of action vis-à-vis Defendants 2 and 3. It is

submitted no claim for maintenance can be made against either of them

under Section 18 HAMA. The claim to the immovable properties owned

either by FMPL absolutely or Defendant No.3 in her individual capacity,

which was subsequently sold to Respondent No.6, would be barred under

Section 4 read with Section 2 of the Benami Act. In any event there is no

prayer for cancelling the title deeds by which these parties became the legal

owners of the properties in question. Inasmuch there is an express bar to the

in-laws to the relief being granted, the plaint be rejected as regards

Defendants 2 and 3.

CCP No.180/2008 & CS(OS) No. 276/2007 page 15 of 24

28. The Court would first like to take up for consideration the issue whether

Defendants 2 and 3 can be said to be in contempt of the order dated 15th

February 2007 passed by this Court in IA No. 1711 of 2007.

29. A perusal of the record of proceedings in petition under the PWDVA

before the learned MM shows that the interim order restraining the

Respondents from transferring or creating third party interests in respect of

property at 32, Sultanpur Farms, Mehrauli, New Delhi was not continued

beyond 18th December 2006. Clearly on the date (15th February 2007) the

statement was made before this court by learned counsel for Defendants that

the Defendants would abide by the said interim order passed by the learned

MM, the said order was not operative. Nevertheless, this Court is not

prepared to go only by this position. As long as learned counsel for the

Defendants did undertake before this Court that the Defendants would abide

by the order of the learned MM, even if it had come to an end by that date, it

should be taken that the Defendants bound themselves not to alienate, sell or

create third party interest in respect of the said properties.

30. For the same reason this Court is prepared to accept the submissions of

learned counsel for the Plaintiff that this position continued at least till 22 nd

May 2008. The difficulty however is that the interim order which was

continued by this Court till 22nd May 2008 was not continued thereafter. A

perusal of the order dated 22nd May 2008 as extracted hereinbefore shows

CCP No.180/2008 & CS(OS) No. 276/2007 page 16 of 24 that the case was listed thereafter only on 17th November 2008 by which

time the sale deed had been executed. A similar question was considered by

the Supreme Court in Ashok Kumar v. State of Haryana (2007) 3 SCC 470.

It was held in paras 12 and 13 as under:

"12. The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.

13. In our considered opinion, the purport of the order passed by the learned Civil Judge, Senior Division, Panipat, in extending the order of injunction is absolutely clear and explicit. It may be true that the date was preponed to 28-7-1988, but from a bare perusal of the order passed by the learned Civil Judge, Senior Division, it is evident that the order of injunction was not extended. Even on the subsequent dates, the order of injunction was not extended. In fact, no order extending the period was passed nor any fresh order of injunction was passed by the learned Civil Judge, Senior Division, subsequent thereto."

It is not possible therefore for this Court to accept the submissions of the

Defendants that the execution of the sale deed dated 9 th June 2008 was in

violation of an interim order passed by the court as far as the property at 32, CCP No.180/2008 & CS(OS) No. 276/2007 page 17 of 24 Sultanpur Farms, Mehrauli, New Delhi is concerned.

31. As regards the property at Aya Nagar, Mehrauli, New Delhi, this Court

is really not called upon to decide whether the sale deed dated 29 th March

2006 by which this property was sold to FMPL was a sham transaction.

There is no prayer sought for in the suit in that regard. In any event the said

transaction obviously took place long before any interim order was passed in

respect thereof by any court. While the documents placed on record prima

facie show that a loan of Rs.7.76 crores was taken from Baljit Singh by

FMPL, they do not describe the property on which the charge was created.

Significantly, FMPL is itself neither a party to the suit nor a party to the

contempt petition. It cannot therefore be urged that the interim order dated

15th February 2007 bound FMPL. There has been no attempt by the Plaintiff

to implead the said entity either in the suit or in the contempt petition. In the

circumstances, this Court is unable to hold that Defendants 2 or 3 or any of

the other Respondents are liable for contempt as having violated the order

dated 15th February 2007 which was continued till 22nd May 2008.

32. In view of the above findings this Court finds no merit in the contempt

petition and it is dismissed as such. The contempt notices to the

respondents/contemnors stand discharged.

IA No.4037/2009 in CS (OS) No. 276/2007

33. Now the Court takes up for consideration the application under Order CCP No.180/2008 & CS(OS) No. 276/2007 page 18 of 24 VII Rule 11 CPC. The suit is one under Section 18 HAMA. A perusal of

the said Section shows that the wife is entitled to claim maintenance only

from her husband and not from any other relation to her husband. The

definition of word „maintenance‟ under Section 3(b)(i) read with Section 18

makes it apparent that no claim for maintenance can be made under Section

18 HAMA by a wife against either the father-in-law or the mother-in-law. A

similar question arose for consideration before the Supreme Court in

Vimlaben Ajitbhai Patel. After referring to Sections 4 and 18 HAMA, it was

observed as under in para 24:

"24. Section 4 provides for a non obstante clause. In terms of the said provision itself any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid. In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable. Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise."

The other observation in para 27 of the same judgment about the wife being

entitled to higher right under the PWDVA does not really advance the case

of the Plaintiff here. In any event as already noticed, the petition filed by the

Plaintiff under the PWDVA has been dismissed for default. As such,

CCP No.180/2008 & CS(OS) No. 276/2007 page 19 of 24 therefore, the prayer in the suit for grant of maintenance is incapable of

being granted to the Plaintiff insofar as Defendants 2 and 3 are concerned.

34. The case made out in the plaint is that the property at 32, Sultanpur

Farms, Mehrauli, New Delhi is being held by Defendant No.3 as benami for

Defendant No.1, her son. In this context the provisions of the Benami Act

require to be noticed. The expression „benami‟ is defined under Section 2(a)

to mean "any transaction in which property is transferred to one person for a

consideration paid or provided by another person." Under Section 3(1) there

is a bar to any person entering into a benami transaction. The only exception

carved out is under Section 3(2) which states that such a bar would not apply

to the purchase of a property by any person either in the name of his wife or

unmarried daughter. Clearly, the prohibition would apply if the property is

purchased in the name of the mother. Section 4 of the Benami Act imposes a

complete prohibition on the right to recover a property held benami. Section

4 reads as under:

"(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in

CCP No.180/2008 & CS(OS) No. 276/2007 page 20 of 24 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."

35. It is plain from Section 4(1) that no suit shall lie to enforce any right in

respect of any property held benami against the person in whose name the

property is held. Even if one were to stretch the argument, as is sought to be

done by the Defendants, the plaintiff cannot claim ownership to the suit

properties but only lay claim for recovering maintenance from Defendant

No.1, who according to her is the real owner of such property. Such a

prayer in any event cannot be made on account of Section 4(1) Benami Act.

It was sought to be contended that under Section 4(3)(b) Defendant No.3

was holding the property in fiduciary capacity for Defendant No.1. This

event is neither pleaded nor substantiated even prima facie through any

document filed along with the plaint. Even if the plaint is read as it stands,

no case is made out to show that Defendant No.3 was in fact holding the CCP No.180/2008 & CS(OS) No. 276/2007 page 21 of 24 property at 32, Sultanpur Farms, Mehrauli, New Delhi in any fiduciary

capacity for Defendant No.1. Viewed from any angle, the bar under Section

4 of the Benami Act would apply and prevent the Plaintiff from claiming

any relief vis-a-vis the properties shown to be owned by Defendant No.3 and

FMPL.

36. There is merit in the contention of Defendant 2 and 3 that the suit should

also fail for not seeking any relief of cancellation of the title deeds under

which the properties are held either by FMPL or at present by Respondent

No.6. For all of the above reasons, this Court is of the view that prayer of

Defendants 2 and 3 in the application under Order VII Rule 11 CPC should

succeed. The plaint is accordingly rejected vis-à-vis Defendants 2 and 3.

IA No. 9739/2009 in CONT. CAS(C) No.180/2008

37. In view of the orders passed in the Contempt Petition, the application is

disposed of.

IA No. 12163/2008 in CONT. CAS(C) No.180/2008

38. The interim order dated 17th November 2008 in the present application

will stand vacated.

39. The application is dismissed.

IA No. 7940/2009 in CS (OS) No.276/2007

40. In terms of the order passed in IA No. 4037 of 2009 under Order VII CCP No.180/2008 & CS(OS) No. 276/2007 page 22 of 24 Rule 11 CPC, the application is disposed of.

IA No. 1711/2007 in CS (OS) No.276/2007

41. It is submitted by learned counsel for Defendants 2 and 3 that the interim

order dated 12th March 2007 restraining Defendant No.1 from pursuing the

proceedings in the UK courts does not survive on account of the fact that a

decree of divorce has in fact been granted by that court in favour of

Defendant No. 1. In that view of the matter, the said interim order also

stands vacated as having become infructuous.

42. The application stands dismissed.

IA No. 1712/2007 in CS (OS) No.276/2007

43. For the reasons stated in the application, it is allowed and disposed of as

such.

IA No. 8904/2007 in CS (OS) No.276/2007