Delhi High Court
Bharat Kumar vs Ashok Sahdev & Ors. on 15 May, 2014
Author: Pradeep Nandrajog
$~3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: May 15, 2014
+ FAO(OS) 465/2013
BHARAT KUMAR & ORS ..... Appellant
Represented by: Mr.Sunil Magon, Advocate
versus
STATE & ORS ..... Respondents
Represented by: Mr.Amit Sibal, Senior Advocate
instructed by Mr.Peeyoosh Kalra,
Mr.Rakesh Kumar Garg and
Mr.Anirban Sen, Advocates
RFA(OS) 123/2013
BHARAT KUMAR ..... Appellant
Represented by: Mr.Sunil Magon, Advocate
versus
ASHOK SAHDEV AND ORS ..... Respondents
Represented by: Mr.Amit Sibal, Senior Advocate
instructed by Mr.Peeyoosh Kalra,
Mr.Rakesh Kumar Garg and
Mr.Anirban Sen, Advocates for R-1
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J. (ORAL)
Caveat No.839/2013 in RFA (OS) No.123/2013
Since counsel as above appears for the caveator, the caveat is
discharged.
CM No.14953/2013 in RFA (OS) No.123/2013
Allowed subject to just exceptions.
FAO (OS) No.465/2013 & RFA (OS) No.123/2013
1. The appellant Bharat Kumar has been held disqualified to compete
with his brother and his sister-in-law. The latter two have thus got a walk
over. Suit filed by Bharat Kumar has been held to be barred by law. The
game has not been played. The evidence has not been led. Issues have not
been settled. The suit has been dismissed.
2. Testamentary Case No.61/2010 filed by Bharat Kumar seeking
Letters of Administration of the Will dated April 09, 1998 statedly executed
by Sh.Sahdev has been dismissed summarily with liberty to Bharat Kumar,
his two sons and a daughter, who were co-petitioners to seek revival of the
petition but limited to the assets of late Sh.Sahdev mentioned at Sl.No.2 to 8
of the schedule to the petition, after giving full particulars thereof.
3. The order is a composite order dated September 09, 2013.
4. Under RFA (OS) 123/2013 challenge is to the order dated September
09, 2013 dismissing CS(OS) No.1517/2010 as the claim has been held to be
barred by law. Under FAO(OS) 465/2013 the challenge is to the said order
in so far Testamentary Case No.61/ 2010 has been dismissed with liberty
for revival granted on the condition aforenoted in paragraph 2 above.
5. Concerning Testamentary Case No.61/2010, seeking Letters of
Administration of the Will dated September 09, 1998 statedly executed by
Sh.Sahdev, in the Schedule of Property left behind by late Sh.Sahdev who
died on January 09, 2000, the estate is described as under:-
Sl.No. Assets Value
1. Half ownership of No.92, Golf Links, `15 crores
New Delhi
(approx.)
2. Cash deposits in State Bank of india,
Rajpur Road, Delhi
3. Investments in Unit Trust of India
4. Jewellery and household goods
5. Investment in India Trading House
6. Household goods like furniture,
fixtures, carpets, decorative articles,
godrej almirah
7. 50% share in the firm India Trading
House
8. Akai T.V, Onida T.V. and VCR
6. Claim in CS(OS) 1517/2010 by Bharat Kumar is to an alleged 50%
share of late Sh.Sahdev in property No.92, Golf Links, New Delhi, partition
whereof has been prayed on the plea that late Sh.Sahdev, the father of
Bharat Kumar and Ashok Sahdev, owned 50% share in the property.
Stating that the two sisters of Bharat and Ashok Sahdev have relinquished
their interest in the estate of the father, on the death of Sahdev, Bharat
Kumar would inherit 25% share in the property.
7. In what manner late Sahdev came to own 50% share in 92, Golf
Links, New Delhi has been pleaded by claiming that India Trading House
was a partnership firm of which Sahdev, Ashok and his wife Sarita were
partners. It has been pleaded that an industrial plot belonging to the firm
was sold by Sahdev and from the money realized property No.92, Golf
Links was purchased with clear intent that Sahdev would have 50% share
therein and the remaining 50% would be that of Ashok and his wife Sarita.
8. No reference whatsoever has been made in the pleadings to any
document by which right, title or interest in property No.92, Golf Links was
acquired, as pleaded in the plaint. The averment in para 17 of the plaint
would be necessary to be noted. It reads:-
"That without there being a formal conveyance of the
property, the father late Sh.Sahdev and defendant No.1 and
defendant No.2 became entitle to the suit property No.92, Golf
Links as co-owners."
9. In the written statement filed by Ashok and his wife Sarita, to which
they found a support from Prabha and Sobha, the two daughters of late
Sh.Sahdev, it was denied that the father purchased property No.92, Golf
Links, New Delhi or had any interest therein. Ashok and Sarita pleaded
that whereas the ground floor of the property was purchased by Ashok
from the previous owners Surinder Singh Dhingra and Ravinder Singh
Dhingra with proportionate interest in the land, the first floor and the barsati
floor, with proportionate interest in land, was purchased by Sarita. It was
pleaded that interest as aforesaid was purchased by an under : (i)
agreement(s) to sell, (ii) General Power of Attorney, (iii) Possession letter,
(iv) Receipt, and (v) Wills. They relied upon :-
(i) An agreement to sell dated October 25, 1997 in favour of Sarita
executed by Surinder Singh Dhingra and Ravinder Singh Dhingra
acknowledging therein that for a consideration of `48,00,000/- (Rupees
Forty Eight Lacs only) they had agreed to sell to Sarita the first floor and
the barsati floor with proportionate interest in the land;
(ii) Agreement to sell dated November 01, 1997 in favour of Ashok
Kumar executed by Surinder Singh Dhingra and Ravinder Singh Dhingra
acknowledging therein that for a consideration of `46,00,000/- (Rupees
Forty Six Lacs only) they had agreed to sell to Ashok the ground floor
with proportionate interest in the land;
(iii) Possession letter of January 1998 acknowleding having received
`42,00,000/- (Rupees Forty Two Lacs only) from Ashok pursuant to the
agreement dated November 01, 1997 and having handed over the ground
floor to Ashok and being left with no interest in the ground floor, with a
stipulation that Surinder and Ravinder have a claim of only `4,00,000/-
(Rupees Four Lacs only) against Ashok.
(iv) Possession letter dated January 01, 1998 acknowledging having
received `42,00,000/- (Rupees Forty Two Lacs only) from Sarita pursuant
to the agreement dated October 25,1997 and having handed over the first
floor and the barsati floor to Sarita and being left with no interest in the
said floors, with a stipulation that Surinder and Ravinder have a claim of
only `6,00,000/- (Rupees Six Lacs only) against Sarita.
(v) A registered irrevocable power of attorney constituting and
appointing Mr.R.N.Marwaha as the attorney of Surinder Singh and Ravinder
Singh to manage and deal with the ground floor of property 92, Golf
Links, New Delhi
(vi) A registered irrevocable power of attorney constituting and appointing
Mr.R.N.Marwaha as the attorney of Surinder Singh and Ravinder Singh to
manage and deal with the first floor and the barsati of property 92, Golf
Links, New Delhi.
(vii) Registered Will dated April 15, 1998 by Ravinder Singh Dhingra in
favour of Sarita bequeathing her his half share in the property 92 Golf Links,
New Delhi.
(viii) Registered Will dated April 15, 1998 by Surinder Singh Dhingra in
favour of Ashok bequeathing him his half share in the property 92, Golf
Links, New Delhi.
(ix) An undated receipt acknowledging having received `45,50,000/-
(Rupees Forty Five Lacs Fifty Thousand only) from Ashok Kumar towards
sale consideration of the ground floor of 92, Golf Links, New Delhi,
recording that balance sale consideration to be received is only `50,000/-
(Rupees Fifty Thousand only).
(x) An undated receipt acknowledging having received `42,00,000/-
(Rupees Forty Two Lacs only) from Sarita towards sale consideration of
the first floor and the barsati floor of 92, Golf Links, New Delhi recording
that the balance sale consideration to be receives is only `6,00,000/- (Rupees
Six Lacs only).
(xi) An agreement to sell dated February 04, 2009 on which stamp duty in
sum of `8,48,900/- (Rupees Eight Lacs Forty Eight Thousand Nine Hundred
only) has been affixed executed by Surinder Singh and Ravinder Singh in
favour of Ashok Kumar and Sarita recording past payments received
pursuant to the earlier agreements to sell and further fact that full sale
consideration having been received from Ashok Kumar and Sarita, the
two, Surinder Singh and Ravinder Singh would sell property No.92, Golf
Links, New Delhi to Ashok Kumar and Sarita who were already in
possession of the property
(xii) A General Power of Attorney dated February 04, 2009 duly
registered, constituting and appointing Ashok Kumar and Sarita as their
constituted attorneys.
(xiii) A declaration dated February 04, 2009 affirming that Surinder Singh
and Ravinder Singh have been left with no title or interest in 92, Golf Links
and that the same vests absolutely in Ashok Kumar and Sarita.
(xiv) A Special Power of Attorney in favour of Prabha, the sister of Bharat
Kumar and Ashok Kumar empowering her to execute the sale deed in favour
of Ashok Kumar and Sarita.
10. In the replication filed by Bharat Kumar he simply pleaded that the
documents were illegally created.
11. We note that entire payment made to Surinder Singh Dhingra and
Ravinder Singh Dhingra is by cheques drawn on the account of Ashok
Kumar and Sarita. The details of the cheques have been recorded in the
agreement to sell executed on February 04, 2009. The same would be as
under:-
Payments Received by Sh.Surinder Singh Dhingra:
Cheque No. Date Amount
220059 01.11.97 `2,00,000/-
152533 08.12.97 `.9,00,000/-
152534 31.12.97 `10,00,000/-
179383 26.5.98 ` 1,00,000/-
228316 23.08.98 `75,000/-
410035 25.10.97 ``5,00,000/-
410039 10.12.97 ``6,00,000/-
154202 01.01.98 ``10,00,000/-
179404 26.05.98 ``1,50,000/-
179421 23.08.99 ``1,25,000/-
913553 04.02.09 ``25,000/-
540308 04.02.09 `25,000/-
Payments Received by Sh.Ravinder Singh
Cheque No. Date Amount
220058 25.10.97 `5,00,000/-
152532 08.12.97 `6,00,000/-
152535 31.12.97 `10,00,000/-
179384 26.05.98 `1,00,000/-
228317 23.08.99 `75,000/-
410036 15.11.97 `2,00,000/-
410040 10.12.97 `9,00,000/-
154201 01.01.98 `10,00,000/-
179403 26.05.98 `1,50,000/-
179422 23.08.99 `1,25,000/-
913551 04.02.09 `25,000/-
540307 04.02.09 `25,000/-
12. Section 4 of the Benami Transactions (Prohibition) Act, 1988 reads as
under:-
" 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."
13. It is apparent that no claim or action to enforce any right in respect
of any property can be made against the person in whose name the
property is held on the plea that the property is held benami, with the
exception that 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 coparceners of the family or where the person in whose name the
property is held is a trustee or stands in a fiduciary capacity to another.
14. It may be true that Ashok and Sarita are not the registered owner of
the property for the reason under the Transfer of Property Act, right, title or
interest in immovable property can be conveyed and hence acquired by a
registered sale-deed where value of the immovable property is more than
`100/-; and the value of the suit property is admittedly more than `100/-.
But, registered documents executed by the registered owners i.e. Surinder
Singh and Ravinder Singh, details whereof we have noted in paragraph 9
above are in favour of Ashok and Sarita.
15. The learned Single Judge has noted that it may be true that defendants
No.1 and 2 have no sale-deed in their favour but has noted that Bharat has
made no reference to any title document in support of his claim. The
learned Single Judge has noted that the Benami Transactions (Prohibition)
Act, 1988 defines a benami transaction as one in which property is
transferred to one person for a consideration paid or provided by another and
that except of the two situations contemplated by sub-Section 3 of Section 4,
sub-Section 1 of Section 4 of the Act prohibits any claim in a property held
benami.
16. The learned Single Judge has noted that apart from the fact that in the
plaint Ashok made no reference to any title document in support of his
claim, in the replication filed a challenge was made to ownership rights
claimed by Ashok and Sarita under the various documents executed by
Surinder and Ravinder in their favour.
17. The learned Single Judge has noted that there was no plea in the plaint
that Ashok and Sarita held the property as trustees or the two being in a
fiduciary capacity towards Sahdev. The learned Single Judge has taken the
view that a positive averment requires to be made in the plaint to bring the
case within the two exceptions contemplated by sub-Section 3 of Section 4
of the Benami Transactions (Prohibition) Act, 1988.
18. The learned Single Judge has noted that the usual practice prevalent in
Delhi to sell property was through the medium of an agreement to sell
coupled with delivery of possession in part performance thereof, powers of
attorney, wills etc. The learned Single Judge has noted that this Court in the
decision reported as 94 (2001) DLT 841 Asha M.Jain Vs. Canara Bank
recognized the said practice. The learned Single Judge has noted that the
said view was overruled by the Supreme Court but prospectively, in the
decision reported as 2012 (1) SCC 656 Suraj Lamp & Industries Pvt. Ltd.
Vs. State of Haryana. The learned Single Judge has noted the decision
pronounced by the Supreme Court in the decision reported as (2012) 5 SCC
342 Marcel Martins Vs. M.Printer with reference to Bharat's plea that in the
said decision it was noted that the expression 'fiduciary capacity' has not
been defined in the Benami Transactions (Prohibition) Act, 1988 and thus
the expression must take its meaning from the non jural recognized concept
of what would be a fiduciary capacity. The learned Single Judge has noted
that purchase of a property in the name of a son/brother, if in trust or for hte
benefit of the father/sisters, the prohibition under the Benami Transactions
(Prohibition) Act, 1988 would not be applicable. With reference to Marcel
Martin's case, the learned Single Judge noted that the Supreme Court not
merely traced the flow of the purchase consideration from the father but
three other facts : (i) the fact of the right to purchase being available to all
the occupants of hte property, (ii) the father and the daughters being in
occupation also having a right to purchase and having desired to purchase in
the joint names but the purchase being effected in the name of the
son/brother only for the reason of the seller insisting on sale in a name of
only one, and (iii) the agreement between the parties recording the
son/brother holding the property in trust and for the benefit of the father and
the sisters also. The learned Single Judge has distinguished the decision in
Marcel Martin's case with reference to the existing pleadings in the instant
suit.
19. Same arguments which were advanced before the learned Single
Judge have been reiterated before us.
20. Concerning the issue that the Benami Transactions (Prohibition) Act,
1988 would not be applicable because there is no sale-deed in favour of
Ashok and his wife Sarita, the argument of the appellant overlooks the fact
that there is no sale-deed in favour of either Sahdev or anyone else executed
by the registered owners of the property Sh.Surinder Singh Dhingra and
Ravinder Singh Dhingra. As noted by the learned Single Judge, in the
replication filed, Ashok Kumar has challenged the documents on which
Ashok and Sarita rely upon for their title. Indeed, it was the common
practice in Delhi, judicially recognized by this Court in the decision in Asha
Jain's case (supra) that in Delhi title in immovable property was being
transferred on the basis of registered agreements to sell, power of attorney,
receipts acknowledging payments and possession handed over in part
performance. The said decision has been prospectively overturned by the
Supreme Court in Suraj Lamp's case (supra). The transaction between
Surinder Singh Dhingra and Ravinder Singh Dhingra on the one hand and
Ashok Kumar and his wife Sarita on the other hand precedes the decision of
the Supreme Court.
21. The concept of beneficial ownership is recognized by law. Under the
documents executed by Ravinder Singh Dhingra and Surinder Singh
Dhingra, Ashok Kumar and Sarita claim beneficial ownership. Bharat
challenges the same. The plea of benamidar is inherent in his claim.
22. Bharat's argument that there is no title document in the form of a sale-
deed in favour of Ashok and Sarita and thus the two cannot claim title while
acknowledging that there is no title document whatsoever, much less a sale-
deed in favour of his father but he could still stake a claim to the property on
the strength of a title of his father, would be a situation akin to just as the
inverse and the converse of a conditional are logically equivalent to each
other the conditional and its contra-positive are logical equivalent to each
other, but the inverse of a conditional is not inferable from the conditional.
23. Indeed, there are no averments in the plaint to bring the case within
the exception provided by sub-Section 3 of Section 4 of the Benami
Transactions (Prohibition) Act, 1988. Since we are adopting the reasoning
of the learned Single Judge on said aspect of the pleadings, we need not like
a copy cat re-pen the view of the learned Single Judge by imitating his
words. Likewise, we concur with the ratio of law culled out by the learned
Single Judge in Marcel Martin's decision.
24. We would supplement that pleadings in the plaint are speculative. A
title to a property has to be pleaded with material particulars such as the
nature of document conferring the title, the date of its execution and by
whom. The instant plaint filed by Bharat Kumar lacks in material
particulars and it has to be held that the so called pleadings of title of Late
Sh.Sahdev are no pleadings in the eyes of law.
25. We dismiss RFA (OS) No.123/2013.
26. Concerning Testamentary Case No.61/2010 the view taken by the
learned Single Judge is that since Sahdev does not have any title to property
No.92, Golf Links, New Delhi it would be futile to decide whether the Will
dated April 09, 1998 was the last legal and valid testament executed by him.
The learned Single Judge has noted that the estate at serial No.2 to 8 of the
Schedule to the Testamentary Case was sans any particulars. We have noted
the contents of the schedule to the Testamentary Case in paragraph 5 above
and from which it would be apparent that there is no reference to the amount
or the folio number under which Sahdev has cash deposits with the State
Bank of India, Rajpur Road, Delhi. There is no reference to the amount or
the particulars of the investment in the Unit Trust of India. There is no
reference to the amount for the nature of investment in India Trading House.
There is no reference to the value or the extent of jewellery or house hold
goods. Mere reference to furnitures, fixtures, almirahs, Onida TV, AKAI
TV or VCR is worthless. The learned Single Judge has thus correctly
opined that proceedings in the Testamentary Case have to be terminated
with liberty to Bharat to seek revival thereof if he could supply particulars of
the estate of the deceased as per serial No.2 to 8 of the schedule.
27. FAO (OS) No.465/2013 is accordingly dismissed.
28. Parties shall bear their own costs.
CM No.14954/2013 in RFA (OS) No.123/2013
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
MAY 15, 2014
skb/mamta
