Smt.Asha Jain And Another vs Sh.Anil Kumar Jain
2010 Latest Caselaw 2791 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                     Date of decision: 26.05.2010

+      CS(OS) 483/2009

       SMT.ASHA JAIN AND ANOTHER                         ..... Plaintiffs
                       Through : Mr. Mahabir Parshad and Mr. S.K. Gupta, Advocates.

                      versus

       SH.ANIL KUMAR JAIN A+                            ..... Defendant
                       Through : Mr. K.K. Gupta, Sr. Advocate with Mr. Rajiv Bakshi,
                       Mr. Mukesh Kumar and Mr. Vikash Sharma, Advocates.

       CORAM:
       MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers         Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?            Yes.

3.     Whether the judgment should be                Yes.
       reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)

1. The plaintiffs have, in the present suit, claimed a partition decree and other consequential

reliefs, including injunction and damages.

2. Briefly the facts are that the plaintiffs claim to be co-owners of the suit property, being

No. 181, Gagan Vihar, Delhi-110 092, (which measures 200 sq. yards, and has a building

constructed upon it), comprising of ground floor. The plaintiffs trace their title to a Registered

Deed dated 06.07.2000. The suit mentions that the original owner of the property was one Sh.

Manphool Singh, who parted with interest in the property, (including possession), to the

plaintiffs and the defendant, by virtue of an Agreement to Sell dated 11.08.1995, and received

CS (OS) 483/2009 Page 1 Rs.5,50,000/- from them. It is stated that besides the plaintiffs and defendant, there was a fourth

co-owner, Sh. Vijay Kumar Jain, who sold his proportionate one-fourth share in the suit property

to the plaintiffs and defendant. The said Sh. Vijay Kumar Jain was the first plaintiff's brother.

3. The averments further disclose that the first plaintiff is related to the defendant, being his

sister-in-law, and that the second plaintiff and the defendant are also closely related, being

maternal first cousins.

4. The suit alleges that the plaintiffs requested the defendant to vacate the property,

sometime in 2004, as they were entitled to peacefully occupy their one-half portion or share. It is

alleged that the original documents pertaining to the ownership of the suit property as well as the

sale transaction with Sh. Vijay Kumar Jain continue to be in the power and possession of the

Defendant. The suit alleges that instead of complying with this request, the defendant refused to

vacate the premises and registered a police complaint dated 30.11.2008 against the plaintiffs. The

plaintiffs also mention about a registered legal notice dated 26.12.2008. The plaintiffs, premising

the suit on these averments, assert that they are co-owners of the property and are entitled to their

proportionate share, and, therefore, seek a decree for partition. The suit alleges about some

incident said to have occurred on 08.02.2009 which has triggered the present action. The

plaintiffs claim mesne profits, valuing @ Rs. 5,40,000/- for the three years preceding the suit,

quantified at Rs.15,000/- per month with effect from 12.02.2006, as well as permanent

injunction.

5. After summons were issued, the defendant entered appearance and filed his written

statement. The essential particulars relating to the original ownership of Sh. Manphool Singh; the

transaction whereby the plaintiffs and defendant acquired title to the property; relinquishment of

an undivided share by Sh. Vijay Kumar Jain etc. are not disputed. However, the defendant

CS (OS) 483/2009 Page 2 asserts his absolute right to possession of the entire property.

6. The defendant specifically sets up a case of the plaintiffs having parted or sold their share

in the property and further avers that the said transaction, (whereby the plaintiffs allegedly

agreed to part with their 50% of the share) was for a consideration of Rs. 25 lakhs.

7. The defendant alleges that in furtherance of the agreement - to sell the property, the

plaintiffs were given two cheques, dated 27.02.2004 and 17.05.2004, for an aggregate sum of

Rs.3,20,000/-, drawn on Punjab National Bank (PNB). The defendant further alleges that one of

the cheques was a blank instrument and that it was misused by the plaintiffs - who inserted the

words "M/s. Gudia Fire Works" as the Payee's description.

8. It is submitted that the second cheque, for Rs. 1,70,000/- (out of Rs. 3,20,000/-) was in

favor of the first plaintiff. The defendant submits, in para 5 of the Reply on Merits as follows:

"XXXXXX XXXXXX XXXXXX

5. That the contents of para 5 of the plaint as stated are denied. It is denied that the plaintiffs in the year 2004 requested the answering defendant to vacate their share as alleged. It is submitted that once the plaintiffs had sold their share in the suit property there was no occasion for them to ask the answering defendant to vacate their share in the suit property. It is denied that the plaintiffs ever asked from the answering defendant as regards any of the documents related to the suit property onwards April-May 2004.

XXXXXX XXXXXX XXXXXX"

9. Again in para 8, the same averment is repeated as follows:

"XXXXXX XXXXXX XXXXXX

8. That the contents of para 8 of the plaint as stated are denied. It is denied that the plaintiffs are co-owners in the suit property any longer. Once they sold their share in the suit property, it does not lie with them to allege that they have any share in the suit property. It is denied that the plaintiffs have the share in the suit property to the extent of 100 sq. yards. It is denied that in the circumstances the plaintiffs can raise the issue of partition of the suit property once they sold their share in the suit property to the answering defendant.

CS (OS) 483/2009                                                                                Page 3
        XXXXXX                          XXXXXX                         XXXXXX"

10. It is contended by the learned senior counsel for the defendant, by pointing to the

averments in the reply to I.A. No. 11139/2009 filed by the plaintiffs (Under Order 12 Rule 6) to

say that the consideration for the 50% share was paid in cash. Para 3 of the said reply reads as

follows:

"XXXXXX XXXXXX XXXXXX

3. In reply to the instant para it is submitted that in order to understand the written statement, the averments made in it have to be understood in entirety and the tenor of the written statement could be understood only after reading the written statement as a whole instead of reading it in piece-meal. It is submitted that the plaintiff as per his own choice picked up the words and phrases from different paras of the written statement in a piece-meal manner to make out a case for judgment on admission. It is submitted that two lines picked up by the plaintiff from para 5 of preliminary objections clearly show that the defendant has not admitted the co-ownership of the plaintiffs since in para 4 of the parawise reply it is very much clear that the defendant had purchased the share of the plaintiffs in the suit property against the payment of consideration. Therefore, the three lines of the para 5 of the preliminary objection are not an admission as alleged by the plaintiff.

XXXXXX XXXXXX XXXXXX"

11. Learned counsel for the plaintiffs relied upon the averments in the suit and the

application, I.A. No. 11139/2009 and submitted that based on an overall consideration to the

pleadings, the defence cannot be sustained and that the Court should forthwith pass a preliminary

decree, partitioning the property. It is contended that the defendant has not filed any document

and that the averments in the written statement with regard to the payment of any amount to the

plaintiffs are vague. It is submitted that he defendant's right to file reply to the application. I.A.

No. 11139/2009 stood closed, despite which he has, during the interregnum between the last

hearing and today, chosen to place on record a reply without permission of the Court. Learned

CS (OS) 483/2009 Page 4 counsel submits that this reply is bereft of material particulars as to when the defendant paid any

amount in cash, as alleged.

12. The plaintiffs submit that taken in totality, the written statement does not disclose a

triable defence. The Court had, on previous date of hearing, indicated to the counsel for the

defendant that the provisions of The Benami Transactions (Prohibition) Act, 1988 would be

involved and that appropriate arguments might have to be addressed having regard to the fact

that no document evidencing the agreement to sell the 50% share is on record and also having

regard to the fact that the averments in the written statement are lacking in any particulars in this

regard.

13. It is submitted by the defendant's senior counsel that he has every right to continue in the

property and that he is the absolute owner and that the Court cannot pass any order on alleged

admission, as none exists. It is submitted that the plaintiffs' rights itself being suspect on account

of specific averments of their having parted with their share of the property, the defendant is

entitled to a full trial during which they ought to be afforded the opportunity to place on record

evidence disclosing payment of amounts to the plaintiffs.

14. It is further argued that the provisions of The Benami Transactions (Prohibition) Act,

1988 are inapplicable because the plea of the defendant being the benami owner of the property

or any part of it has never been taken in the written statement. Learned senior counsel relies upon

Section 2 of the Act and submits that only such defences which are based on rights in respect of

the property held benami are barred and not the kind which are projected in the written

statement.

15. From the above discussion, it is apparent that on essential particulars, such as the original

ownership of the property of Sh. Manphool Singh, his having parted with the title to the plaintiffs

CS (OS) 483/2009 Page 5 and the defendant sometime in 1995; the further relinquishment of proportionate share by an

erstwhile co-owner Sh. Vijay Kumar Jain and the execution of the Conveyance Deed in 2000,

there is no dispute between the parties. It is also not denied that the parties are related, rather

closely. The only question is whether the existing and available materials on record entitle the

Court to draw a decree now, for partition. The defendant alleges in more than one place in the

written statement that he is the full owner and, therefore, the plaintiffs are not entitled to claim

partition.

16. The question as to the applicability of the Act has to be seen from its terms. The material

provisions of the enactment are extracted below:

        "XXXXXX                       XXXXXX                         XXXXXX

        2. Definitions.    - In this Act, unless the context otherwise requires, -

(a) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person:"

3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to -

(a) 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;

(b) the securities held by a-

(i)depository as registered owner under sub-section (1) of section 10 of the Depositories Act, 1996

(ii) participant as an agent of a depository.

(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.

CS (OS) 483/2009 Page 6 (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.

4. Prohibition of the right to recover property held benami. - (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 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.

XXXXXX XXXXXX XXXXXX"

17. From the above, it is apparent that the benami transaction is defined as one in which the

properties are transferred to one person for consideration paid or provided by another. Benami

transactions are prohibited by virtue of Section 3 of the enactment; Section 3(3) deems it to be an

offence punishable with imprisonment for a term which may extend to three years or with fine or

with both. Section 4(1) bars a suit, claim or action to enforce any right in respect of any property

held benami. Section 4(2) states that 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 any suit, claim or action by or on behalf of a person claiming to be

the real owner of such property.

CS (OS) 483/2009 Page 7

18. Facially, the defendant's contention that the transaction is not benami appears to be

attractive because the defendant is not asserting that the amount was paid originally by him to

enable the plaintiffs to hold 50% as his benami owner. Yet a well-settled proposition of law is

that what cannot be achieved directly cannot be achieved indirectly. By asserting that the

defendant had paid the amount and that he claims ownership of an unambiguous averment in

paras 5 and 8 of the written statement, what the defendant is in fact stating is to set-up a defence

that he is the real owner of the balance 50% share originally owned by the plaintiffs, and that the

plaintiffs are holding such share only nominally. If the matters are seen from this perspective and

in the context of Section 4(3), which categorically enjoins only two exceptions to the rule, i.e.

where the person in whose name the co-parcenary property is held by one on behalf of a body of

persons or where the person in whose name is held, does so as trustee on another's behalf, the

plea of benami or any similar plea is inadmissible; in present case, neither is such plea

admissible, nor has it been taken. Concededly, the parties to the suit are not members of one co-

parcenary or members of a HUF. The defendant has nowhere mentioned that the plaintiffs are

holding 50% share (which stands in their name) in any fiduciary capacity or as his trustees.

19. In view of the above analysis and having regard to the specific pleadings of the defendant

that he is the real owner of 50% share (which originally stood in the name of the plaintiffs) and

is, therefore, the absolute owner of the property, the Court finds that the defence is inadmissible

by virtue of Section 4(2). Furthermore, the defendant has not placed on record any document or

material particulars in the pleadings of the suit to suggest as to how and when the amounts were

allegedly paid, and who received them.

20. In view of the above conclusions, the Court is of the opinion that the pleadings contain

admissions which are sufficient to draw a decree under Order 12 Rule 6 CPC. The suit claim for

CS (OS) 483/2009 Page 8 partition in terms of para (a) of the Relief Clause has, therefore, deserves to be and is accordingly

allowed. Let a decree for partition as sought be drawn.

21. Ms. Priya Kumar, Advocate (Mob. No. 9811355512) is appointed as Commissioner to

visit the premises and after ascertaining the views of the parties as well as the nature of the plot

and the construction on it, report to the Court. The Commissioner's fee is fixed at Rs. 75,000/- to

be borne by the parties. The Commissioner shall file her report within two months. In the

circumstances, the defendant shall bear costs quantified at Rs. 30,000/-.

CS (OS) 483/2009

The suit for a decree of partition, under (a) of Relief Clause is decreed in the above terms.

List on 07.10.2010.

                                                                            S. RAVINDRA BHAT
                                                                                      (JUDGE)
       MAY        26, 2010
       'ajk'




CS (OS) 483/2009                                                                              Page 9