Sandeep Chhatwal vs Pishori Lal Chhatwal & Ors
2015 Latest Caselaw 786 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment pronounced on: January 29, 2015

+      I.A. Nos.269/2012 & 17973/2012 in CS(OS) No.34/2012

       SANDEEP CHHATWAL                                  ..... Plaintiff
                   Through            Dr.Kanchan Chawla, Adv.

                          versus

       PISHORI LAL CHHATWAL & ORS               ..... Defendants
                     Through Mr.Sunder Khatri, Adv. with
                             Ms.Asiya, Adv.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for partition, declaration, rendition of accounts and permanent injunction in respect of various properties, the details of which are mentioned in the prayer clause.

2. The suit as well as the interim application were listed before Court on 6th January, 2012 when the Court issued summons in the main suit and notice in the interim application. An interim order was passed in the application being I.A. No.269/2012 under Order XXXIX Rules 1 & 2 CPC, directing the defendants to maintain the status quo with regard to title and possession of the property bearing No.3234-P, Sector 23-A, Gurgaon, Haryana (hereinafter referred to as the "Gurgaon Property").

3. The defendants upon service filed the application under Order XXXIX Rule 4 CPC being I.A. No.17973/2012 for vacation of the ex parte interim injunction on various grounds. By this order, I propose to decide these two applications, i.e. I.A. No.269/2012 under Order XXXIX Rules 1 & 2 CPC filed by the plaintiff and I.A. No.17973/2012 under Order XXXIX Rule 4 CPC filed by the defendants.

4. Both the parties have made their submissions only with regard to one of the properties, i.e. Gurgaon property against which the interim order was passed.

5. Brief facts for the purpose of deciding these applications are that the plaintiff is the second son of defendant No.1 who claims himself as a coparcener in Sewa Ram HUF. His contention is that after the death of Sh.Sewa Ram, the father of defendant No.1 on 13th August, 1971, the defendant No.1, Sh.Pishori Lal Chhatwal was appointed as the karta of the said HUF. The elder son of defendant No.1, i.e. late Sh.Pradeep Chhatwal, another coparcener in the HUF, expired on 27th December, 1997 and his legal heirs have also been arrayed as defendants No.2(a), (b) & (c) in the present suit. Defendant No.3 is the third son of defendant No.1 and a coparcener in the HUF so as the defendant No.4. Defendant No.5 is the mother of the plaintiff and wife of defendant No.1. With regard to the other properties, various submissions have been made in paras 8 to 19 of the plaint. As far as the Gurgaon property, against which the interim order was passed, is concerned, it is contended by the plaintiff that his father/defendant No.1 proposed to purchase the said property and the plaintiff contributed Rs.65 lacs on account of his half share in

the said property in addition to his 1/5th share in the rest half on account of his HUF share. The plaintiff made the said payment of Rs.65 lacs in the following manner:-

(i) Rs.30 lacs by way of two cheques, i.e. one cheque bearing No.010607 dated 22nd July, 2011 for Rs.28 lacs and another cheque bearing No.010608 dated 25th July, 2011 for Rs.2 lacs, both drawn on HSBC Bank.

(ii) Rs.35 Lacs in cash.

It is submitted that the Gurgaon property was purchased in the name of defendant No.1 out of love and affection and to give honour to defendant No.1, who is the father of the plaintiff. The entire chain of sale documents pertaining to the Gurgaon property is in possession of the plaintiff, but defendant No.1 has taken the original sale deed on the plea that the same was required for obtaining the electricity and water connection in his name. As such, the plaintiff is the owner of the half of the said Gurgaon property in addition to his 1/5th share, in the rest half on account of his HUF share.

6. It is further submitted that the plaintiff is in absolute possession of the entire Gurgaon property and he is claiming partition of half of the Gurgaon property for dividing the same by metes and bounds, otherwise the sale proceeds of half of the said property to be divided in the ratio of 1/5th for the plaintiff, 1/5th for defendants No.1, 3 & 4 each and the remaining 1/5th share together for defendants No.2(a),

(b) & (c).

7. The case of defendants No.1 to 5, on the other hand, as per the written statement is that the plaintiff has approached this Court with

unclean hands. The present suit has been filed by the plaintiff in order to grab the Gurgaon property illegally despite of the fact that defendant No.1 is the owner of the said property by virtue of sale deed dated 29th July, 2011 which was registered in the office of the Sub-Registrar, Gurgaon. The publication in this regard was also given by the defendants in the newspaper "The Hindustan Times" on 17th October, 2011 whereby it was disclosed to the public that the plaintiff has occupied the said property illegally without the consent of defendant No.1. The defendant No.1 has also lodged a criminal complaint against the plaintiff in the office of DCP, Gurgaon (Haryana), contending that the plaintiff occupied the property illegally and threatened the defendants No.1 & 5, his father and mother respectively, to be killed by the plaintiff. Not only that, it is submitted that prior to the abovementioned suit, the plaintiff filed the Suit No.102/2011 titled as Sandeep Chhatwal vs. Pishori Lal Chhatwal & Anr., in which the plaintiff sought an injunction against the defendants restraining them from dispossessing him from the said property. The said suit was disposed of vide order dated 15th December, 2011 after recording the statements of the parties. In fact, the said suit was dismissed as withdrawn.

8. The contention is also raised by defendants No.1 to 5 that this Court has no jurisdiction to entertain the suit, as the said property is outside the jurisdiction of this Court. The defendants reserve their right to file the counter-claim against the plaintiff. The defendants have denied that they ever filed the Income-Tax Returns of Sewa Ram HUF from 2002-2005. The allegation is made by the

defendants against the plaintiff that in fact, the said Income-Tax Returns have been filed by the plaintiff himself. It is stated that on one side, the plaintiff has stated that defendant No.1 is the Karta of HUF where he is claiming to be one of the members and on the other side, he is claiming separate half share in the suit property by way of partition. It is averred that the suit filed by the plaintiff is the misuse of the process of law; there is no cause of action and the same is liable to be dismissed.

9. With regard to the other properties, it is submitted that many of them were sold out long back. Even the funds by selling those properties have been received by the plaintiff himself and the plaintiff has purchased certain properties from the said funds with the help of his father, i.e. defendant No.1. The said properties have been concealed by the plaintiff in the plaint, the details of which are given as under:-

(a) Plot No.20, G.T. Karnal Road, Kundli, Sonepat.

(b) A-10, Paschim Vihar (Top Floor), New Delhi.

(c) 12/17, Palam Vihar, Delhi.

(d) Nitin Motors, Abdul Aziz Road, 15/10158, Karol Bagh, Delhi.

(e) Agricultural land at Manesar from House not less than 1500 Sq.

Yards.

(f) 16/25, 1st Floor, Abdul Aziz Road, Karol Bagh, Delhi.

(g) Plot No.10, Sector-10, Godrej Society, Flat No.Nil, Dwarka, Delhi.

(h) H.No.3/68, Vikas Puri, Delhi.

The defendants have also denied that the other properties which are mentioned in para 10 of the plaint are purchased out of the family funds.

10. With regard to Gurgaon property, defendant No.1 has denied having received Rs.65 lacs from the plaintiff. Though, the defendant has admitted that Rs.30 lacs was received by way of cheque from the plaintiff. However, no cash amount was paid by the plaintiff who is harassing his parents by filing the present suit. It is alleged that the plaintiff in order to take the undue advantage of their old age has also obtained their signatures on blank papers on the pretext that he would take permissions like electricity and water from the concerned authorities at Gurgaon and he took the possession of the Gurgaon property forcefully without any will of defendant No.1 by misrepresenting the facts.

11. In nut-shell, the case of defendant No.1 is that defendant No.1 is the absolute owner of the Gurgaon property. The said property was purchased by him. It is neither purchased from HUF funds nor any other defendants or the plaintiff have any share in the said property. The plaintiff is the witness to the sale deed and has taken the forcible possession of the said property.

12. As it is a family dispute, the matter was taken up at the end of the board from time to time. However, the plaintiff did not show any interest to settle the dispute with his father and other family members. The father has also offered Rs.30 lacs which were given by the plaintiff by way of cheque or any reasonable amount, so he should handover the possession of the Gurgaon property to defendant No.1-

father so that he may live in the said property with his wife peacefully. The father has also promised that he would help the plaintiff in future. But the plaintiff was not inclined to resolve the disputes. The plaintiff is not ready to part with any portion of the Gurgaon property in any manner whatsoever with the defendant No.1. However, left with no option, the hearing in the interim applications was concluded and order was reserved.

13. Learned counsel for the plaintiff invited attention to the photocopy of the Income Tax returns of the account of the Sewa Ram (HUF) for the assessment year 2002-2003 which were filed along with the suit and it was contended that the purchase consideration of the Gurgaon property has flown from the receipt of sale consideration of the other properties. By other means, the claim of defendant No.1 is barred by the Benami Act (hereinafter referred to as "the Act"). However, defendant No.1 has denied the plea of Benami transaction. His case is very simple that he is the exclusive owner of the Gurgaon property. The claim of the plaintiff is false and frivolous and is an afterthought. It is not denied by the plaintiff that the sale deed is registered in the name of defendant No.1 and he was the witness to the said document.

14. Section 2(a) of the Act defines a benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another person. Section 4(1) of the Act prohibits any 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 by or on behalf of a person claiming to be the real owner of such property.

15. Section 4(3) of the Act reads as under:

"(3)

(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."

At the best, the claim of the plaintiff falls in the exception provided in clause (a) and (b).

16. The plaintiff can only succeed if at trial he is able to prove the following:-

i. the existence of a Hindu undivided family at the time of purchasing the property or the same was purchased from the funds flown by selling the HUF properties.

ii. that the defendant No.1 in whose name the property is purchased by registered sale deed is a coparcener of the said Hindu undivided family; alongwith other coparceners as alleged by the plaintiff and, iii. that the property is held by the defendant No.1 for the benefit of the coparceners in the family.

17. In the case of Marcel Martins v. M. Printer, (2012) 5 SCC 342 in para 31 it has been held that though the expression "fiduciary capacity" has not been defined in the Benami Act or any other statute but is an expression of known legal significance, the import whereof

was examined in the subsequent paras, i.e. paras 38 & 44 of the judgment wherein it was observed that the plea of Benami would not be available when it can be proved that the funds for purchase of the property had come from the common ancestor of the parties.

18. In the case of Ramesh Advani v. Hiro Advani & Anr., being CS(OS) 1828/2012, IAs Nos. 5183/2013, 11449, 22979 & 22980/2012, decided on 16th July, 2013, this Court observed as under:

"25. Merely because a person at the time of acquisition of the property may be residing with his parents and siblings and merely because the sale consideration has flown from the parents or from some other siblings is not enough to bring a case within the exception aforesaid to the prohibition contained in Benami Act. It cannot be lost sight of that benami transactions prevalent earlier, generally were between family members and hardly ever in the name of absolute strangers, and if pleas as in the present case were to be held to be falling within the exception clause, would negate the legislative intent of prohibiting actions to enforce rights in respect of property held benami.

27. As far exception (b) supra is concerned, it was imperative for the plaintiff to plead a relationship of trust between the defendant no. 1 and earlier the father and/or that of defendant no. 1 was standing in a fiduciary capacity and holding the property for the benefit of the father. There are no such pleas in the plaint. The plaintiff has merely relied on Sri Marcel Martins. The Supreme Court in the said judgment has held that in determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the Court shall have to take into consideration the factual context in which the question arises for it is only in the

factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case.

28. Having said that, it becomes important to see the factual context in which the said observations were made. In that case it was not in dispute that the title to the property even though as a tenant originally vested in the common ancestor of the parties who had died intestate and was transferred in the name of one of the heirs only at the instance of the Municipal Corporation to avoid procedural complications and all the legal heirs had made contributions towards the sale consideration for conversion of the tenancy rights into ownership rights and it was in these facts that the Supreme Court held the plea of benami to be not available and held the case to be falling in the exception. The present is however not a case of parties acquiring title to the property from a common ancestor; rather the case is that the common ancestor from his self acquired funds had acquired the subject property in the name of the defendant no. 1. The said plea, even if were to be ultimately proved, is squarely in the teeth of the prohibition in the Benami Act.

29. I would be failing in my duty if do not refer to the Division Bench dicta in Manjeet Singh Anand Vs. Sarabit Singh Anand MANU/DE/1205/2009 where rejection of the plaint on the ground of claim therein being barred by the Benami Act was denied on the existence in the plaint of the plea of existence of a joint family and which was held to imply Hindu Undivided Family, observing that though the case of the plaintiff therein was weak and not likely to succeed but holding the same to be no ground for ousting the plaint under Order VII Rule 11 of the CPC. However in that case there were averments in the plaint of the property being held for the benefit of coparcerners in the family and the defendant holding the property as a trustee for the benefit of all the family members and which as aforesaid are lacking in the present case. I therefore do not consider myself bound by the said judgment. Mention in this regard

may also be made of another Division Bench of this Court in Babita Pal Vs. Jagdish Bansal 196 (2013) DLT 792 where also a plea for summary dismissal of the suit for reason of the claim therein being barred by the Benami Act was rejected for the reason that the real import of the transaction and the relation between the parties could be determined only after trial. However, I do not consider myself bound thereby also for the reason discussed in detail in my recent pronouncement dated 04.07.2013 in CS (OS) No. 1026/2010 titled Peeyush Aggarwal Vs. Sanjeev Bhavnani and for which reason it is not deemed necessary to burden this judgment therewith.

30. That brings me to the only document in this regard filed by the defendant no. 1 and qua which application aforesaid has also been filed by the plaintiff for examination of the signatures by this Court and/or for reference of the signatures to an expert. The counsel for the plaintiff in this regard has also relied on paras 36 to 39 of Ajit Savant Majagavi Vs. State of Karnataka AIR 1997 SC 3255.

33. I am unable to see how. If the same were to be permitted, it would amount to the Courts permitting the Benami Act to be defeated merely by the real owners obtaining execution of such documents from the benami owners; rather the said affidavit is an unequivocal admission of the property being benami and rights wherein cannot be enforced by the plaintiff claiming to be the true owner of a share in the property by inheritance from the father. The said affidavit nowhere advances the case of the existence of the coparcenary of which the plaintiff and the defendant no. 1 can be said to be coparceners."

19. The case of the plaintiff in the plaint is that when the Gurgaon property was purchased, he had also contributed the funds i.e. Rs.65 lac and the remaining amount was paid by defendant No.1 from the funds received by defendant No.1 after selling the properties owned

by the Joint Hindu Family. The contentions of the plaintiff were denied by the other defendants i.e. all the family members except the plaintiff. The plaintiff has failed to produce even an iota of evidence in this regard. Strangely, on one hand, he says that the defendant No.1 is the Karta of HUF and on the other hand, he is independently claiming separate half share in the suit property on the pretext that he has paid Rs.65 lac to defendant No.1 for the purpose of purchasing the property; he failed to produce any evidence to show what are the sources of the said alleged amount - whether it is his individual self earned money or it was part of the money received by him after selling the other HUF properties as admitted and alleged by him.

20. Prima-facie, this Court finds no merit in the plaintiff's case. Thus, the interim order passed on 6th January, 2012 is vacated by allowing the application filed by defendants under Order XXXIX Rule 4 read with Section 151 CPC being I.A. No.17973/2012. The application being I.A. No.269/2012 under Order XXXIX Rules 1 & 2 CPC filed by the plaintiff is accordingly dismissed. CS(OS) No.34/2012 List this matter before the Roster Bench on 10th March, 2015 for further proceedings, subject to orders of Hon'ble the Chief Justice.

(MANMOHAN SINGH) JUDGE JANUARY 29, 2015