Harish Peswani vs Jaishree Peswani & Ors.
2016 Latest Caselaw 7139 Del

$~17.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) No.498/2016 & IA No.12006/2016 (under Order XXXIX
      Rules 1&2 CPC).
      HARISH PESWANI                                   ..... Plaintiff
                      Through: Mr. J.P. Sengh, Sr. Adv. with Mr.
                                 A.C. Bhasin and Ms. Manisha Mehta,
                                 Advs.
                              versus
      JAISHREE PESWANI & ORS.              ..... Defendants
                   Through: None.
      CORAM:
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                   ORDER

% 29.11.2016

1. It is the case of the plaintiff Harish Peswani in the plaint (i) that the

plaintiff and the defendant no.3 Sh. Deepak Peswani are the sons of

defendant no.1 Smt. Jaishree Peswani, while the defendants no.2(a) to 2(c)

namely Smt. Divya Peswani, Ms. Varsha Peswani and Ms. Khushboo

Peswani are the widow and daughters respectively and only legal heirs of

Shri Naresh Peswani deceased son of defendant no.1; (ii) that the father of

the plaintiff Shri Parmanand Peswani died intestate on 1st May, 2009

leaving the plaintiff and the defendants as his only heirs; (iii) the entire

family was residing in property no.481, Jahangir Puri, Delhi and having a

common kitchen; (iv) Shri Parmanand Peswani started running the business

in the name and style of M/s Jaishree Box Makers, of manufacturing of

boxes, from A-481, Jahangir Puri, Delhi; after sometime the said business

was shifted to A-524, Jahangir Puri, Delhi which property was purchased

out of joint family funds; (v) Shri Naresh Peswani, being the predecessor of

the defendants no.2(a) to 2(c), defendant no.3 Sh. Deepak Peswani and the

plaintiff, as and when each came of age, also started assisting the father Shri

Parmanand Peswani in the business of M/s. Jaishree Box Makers; (vi) in or

around 1992-1993 another joint family business of Cable was started in the

name and style M/s. Naresh Cables but was closed in the year 2002-2003;

(vii) that pursuant to mutual understanding/arrangement all the income

generated from the said joint business was put under the control of

defendant no.1 who used to give only Rs.500/- per month as pocket

expenses to each of the sons; (viii) that from time to time immoveable

properties were purchased in the name of Shri Parmanand Peswani and

defendant no.1 and the same "belong to the Hindu Undivided Family

(HUF)"; (ix) properties no.A-413, A-420, A-481 and A-524 all at Jahangir

Puri, Delhi and property no.BB(East)-64 D, Shalimar Bagh, Delhi were

purchased in the name of Shri Parmanand Peswani and the properties no.A-

489, first floor and A-526, second floor, both at Jahangir Puri, Delhi were

purchased, after the death of Shri Parmanand Peswani, in the name of

defendant no.1 out of joint family funds; (x) none of the properties were self

acquired properties either of Shri Parmanand Peswani or defendant no.1 and

all the properties were purchased with the aid of joint family funds and not

from any individual income of either of the parties; (xi) that property no.A-

420, first floor, Jahangir Puri, Delhi is in the exclusive possession of the

plaintiff and the ground floor portion of the said property is in possession of

defendant no.1; (xii) the defendant no.1 is also in possession of ground floor

of A-481, Jahangir Puri and the second floor whereof is in occupation of

defendants no.2(a) to 2(c); (xiii) property no.A-489, first floor, Jahangir Puri

is in occupation of defendant no.3; (xiv) properties no. A-413, A-420

(second floor) and A-481 (first floor) and A-526 (second floor) all at

Jahangir Puri have been let out and fetching a total rent of over Rs.50,000/-

per month; (xv) the defendant no.1 is a housewife having no independent

income from any quarter; (xvi) behaviour of defendant no.1 has become

strange; and, (xvii) the defendant no.1 has appropriated to herself the sale

proceeds of BB (East), 64D, Shalimar Bagh, Delhi and has also started

appropriating to herself earnings from the business.

2. The plaintiff has thus sought the relief of (i) partition of A-413,

A-420, A-481, A-489 (first floor), A-524 and A-526 (second floor) all at

Jahangir Puri, Delhi - 110 033; (ii) rendition of accounts and permanent

injunction etc.

3. The suit came up first before this Court on 27th September, 2016 when

inter alia the following order was passed:-

"3. The plaintiff has sued for partition with respect to as many as six immoveable properties.

4. Of the said six properties, four of the properties are stated to be in the name of the father of the plaintiff and the other two properties are admittedly in the name of the mother of the plaintiff impleaded as defendant no.1.

5. It is the case of the plaintiff that all the six properties were purchased out of joint family funds and savings and thus the plaintiff has a share therein.

6. The plaintiff has not filed any document and has not made any averment to show that there was any such joint family fund, for the plaintiff to have a share in the property admittedly in the name of the mother of the plaintiff.

7. The plaintiff can at best have a share as an heir of the father in the property in the name of the father of the plaintiff.

8. The counsel for the plaintiff on enquiry states that neither the mother of the plaintiff nor the other heirs of the father have till now set-up any Will of the father.

9. The counsel for the plaintiff seeks time to satisfy this Court that this suit qua properties in the name of the defendant no.1 is maintainable.

10. List on 19th October, 2016 as sought".

4. Thereafter on 19th October, 2016, the following order was passed:-

"1. The counsel for the plaintiff today also, instead of addressing the queries raised in the order dated 27 th September, 2016, states that once summons of the suit and notice of the application are issued and the defendants file their written statement, the position will become clear.

2. A suit cannot be set in motion, without the plaintiff making out a case. The plaintiff is suing for partition not as an heir of his father but on the basis of existence of a joint family and a joint family fund but of the existence whereof neither there are any proper pleadings nor any prima facie case. Attention of the counsel for the plaintiff is drawn to Surender Kumar Vs. Dhani Ram 2016 SCC Online Del. 333, Santosh Vishweshwarnath Wadhwa Vs. Gulshan Chhabra MANU/DE/1029/2016 and Mukesh Kumar Vs. Pavitra MANU/DE/2287/2016. The counsel to study the same and then address the Court.

3. The counsel for the plaintiff has also referred to Section 4 of the Benami Transactions (Prohibition) Act, 1988.

4. However, Section 4 of the Act applies to purchase of property benami in the name of wife or unmarried daughter. The case of the plaintiff however is of the purchase of benami property in the name of the mother after the demise of the father of the plaintiff. It thus cannot be said that the purchase of the property in the name of the mother of the plaintiff was by her husband or by her father, for Section 4 of the Act to be attracted.

5. The counsel to look up the said aspect also and address thereon on the next date of hearing. If Section 4 of the Act were not to apply, then the bar to Benami Transactions (Prohibition) Act would squarely apply to the case set up at least qua the properties in the name of the mother of the plaintiff.

6. List on 29th November, 2016, as sought."

5. The plaintiff has filed IA No.14734/2016 to amend the plaint to

incorporate paras 15-A and 15-B in the plaint as originally filed pleading (i)

that during the lifetime of Shri Parmanand Peswani there was a joint family

who were living jointly in property no.A-481, Jahangir Puri, Delhi carrying

on joint business; (ii) all the income generated from the said family business

was deposited either in the account of Shri Parmanand Peswani or of the

defendant no.1 or of any of the sons i.e. plaintiff Harish Peswani or

defendant no.3 Mr. Deepak Peswani or Naresh Peswani; (iii) that the

defendant no.1 at no point of time had any job or was employed or had any

independent source of income to purchase the properties and during the

lifetime of her husband was totally dependent upon him and thereafter on her

sons and the properties were purchased in the name of defendant no.1 out of

love and affection and as a trustee for the benefit of the other joint family

members; (iv) the entire consideration for purchase of the properties in the

name of the defendant no.1 was paid out of joint family funds of the family;

and ,(v) the plaintiff is one of the co-parceners in the aforesaid properties

and is entitled to his share in the moveable and immoveable properties under

the law.

6. I do not see as to how the amendments sought, even if allowed,

advance the case of the plaintiff. Be that as it may, IA No.14734/2016 is

allowed and the amended plaint is taken on record. The maintainability of

the suit of the plaintiff is being gauged vis-a-vis the amended plaint.

7. The suit as aforesaid is for partition of as many as six immoveable

properties. The plaintiff has neither filed documents of title of any of the

properties nor the documents to show the ownership of the business. It is not

shown whether the business being carried on and from the income whereof

all the properties are stated to have been acquired is of a sole proprietary or

of a partnership or of a joint Hindu family firm and what is the status thereof

in the various Governmental records and who are the proprietors/partners

thereof. The plaintiff has only filed, site plans of the properties, electricity

bills of the properties, Adhar cards of the plaintiff and his wife and son,

copies of the legal notices stated to be issued, Ration card and passbooks of

bank accounts in the name of the defendants no.1 and 3.

8. According to the plaint, four of the six properties are in the name of

the father Shri Parmanand Peswani and the other two properties are in the

name of defendant no.1. The plaintiff as an heir of his father who is stated to

have died intestate could have sought partition of the four properties owned

by the father. However the plaintiff is not seeking partition of the said four

properties also as an heir of the father but as having a right/share in the said

property since the lifetime of his father. The plaintiff claims such a right in

the said four properties owned by the father, pleading the four properties to

have been acquired from the business which the plaintiff calls the joint

family business.

9. A perusal of the plaint shows a total lack of pleadings of any ancestral

property in the hands of the father which may have formed the nucleus for

commencing the business and a specific plea that the business of M/s

Jaishree Box Makers was commenced by the father in the year 1981 and the

plaintiff, defendant no.3 and Sh. Naresh Peswani started assisting the father

in the said business on coming of age. Such a plea is not a plea of existence

of a HUF or joint Hindu family firm or of a coparcenary. Merely because the

father of the plaintiff may have commenced the business and the plaintiff

and his brothers on coming of age may have started assisting the father in the

said business would not make the plaintiff and his brothers the owners of the

said business along with the father and the ownership of the business

commenced by the father would remain with the father Shri Parmanand

Peswani only. There is thus no basis pleaded in the plaint for the plaintiff to

claim a share in the four properties in the name of the father, along with the

father.

10. There is similarly no case of existence of any HUF or co-parcenary

made out from the pleadings. Merely because after coming of age, a son

continues to reside with the father or joins the father in the business being

run by the father does not result in creation of a co-parcenary to which the

principles of ancient or customary Hindu Law and recognised in section 6 of

the Hindu Succession act, 1956 would apply. Need to expound further on the

said aspect is not felt as the issues have been discussed threadbare in the

judgments referred to in order dated 19th October, 2016 supra.

11. Thus the plaintiff, on the pleas made, is not found to have a right of

partition of the four properties owned by the father though may have a claim

for partition thereof as an heir of the father. However when the plaintiff has

not approached the Court for partition as an heir of the father but has

approached the Court for partition as having a right in the properties even

during the lifetime of the father, the suit for partition of the said properties

cannot be entertained.

12. The other two properties for partition of which the suit is filed are

admittedly in the name of defendant no.1 being the mother of the plaintiff.

13. The claim of the plaintiff of the four properties in the name of the

father of the plaintiff and the two properties in the name of the mother of the

plaintiff being owned not by the father and mother respectively but by the

father and mother along with the plaintiff and the other two defendants is

also found to be barred by the Prohibition of Benami Property Transactions

Act, 1988 (as per Amendment w.e.f. 1st November, 2016 of the Benami

Transactions (Prohibition) Act, 1988). The said Act even prior to its

amendment w.e.f. 1st November, 2016 prohibited any suit or claim or action

to enforce any right in respect of any property held benami against the

person in whose name the property was held or against any other person and

on behalf of a person claiming to be the real owner of such property. The

claim of the plaintiff of the properties though being held in the name of the

father and mother respectively of the plaintiff being owned by the father and

mother along with the plaintiff and the other defendants is in the teeth of

such a claim.

14. Though sub-section (3) of Section 4 of the said Act as it stood prior to

amendment w.e.f. 1st November, 2016 exempted the application of Section

4(1) thereof where the person in whose name the property is held was a co-

parcener in a HUF and the property was held for the benefit of co-perceners

in the family but the plaintiff, on the pleadings has not made out a case for

existence of a co-parcener or a HUF or of the property being held by the

father and mother respectively for the benefit of co-parceners in the family.

Moreover the said sub section (3) of Section 4 has been deleted vide the

amendment of the Act w.e.f. 1st November, 2016 though corresponding

changes have been made to definition of benami transaction in Section 2(9)

of the Act.

15. In the aforesaid chronology of events, in my view the claim of the

plaintiff, of being one of the real owners of the properties held in the name

of his father or mother would also be barred by the Prohibition of Benami

Property Transactions Act, 1988.

16. Supreme Court recently in Om Prakash Sharma Vs. Rajendra

Prasad Shewda (2015) 15 SCC 556 held that purchase of property by a

Hindu in the name of his wife is a specie of Benami purchase that had been

prevalent in India since ancient times; such a practice appears to have been

prevalent on account of the position of Hindu women to succession until the

enactment of the Hindu Succession Act and the amendments made thereto

from time to time; in a situation where a Hindu widow had a limited right to

the estate of the deceased husband under the Hindu Women‟s Right to

Property Act, 1937, the purchase of immovable property by a husband in the

name of the wife in order to provide the wife with a secured life in the event

of the death of the husband was an acknowledged and accepted feature of

Indian life which finds recognition in the explanation clause to Section 3 of

the Benami Transactions (Prohibition) Act, 1988; this is a fundamental

feature that must be kept in mind while determining the nature of a

sale/purchase transaction of immoveable property by a husband in the name

of his wife. It was also reiterated that if the property belongs to the wife and

the husband manages the property on her behalf, it would be idle to contend

that the management by the husband of the properties is inconsistent with

the title of his wife to the properties. It was also held that even if the wife is

the owner of the property, possession may continue with the husband as a

matter of convenience and that the purchase of the property by a female in

her own name though the consideration paid for such transaction had been

received by her from her husband would not make the husband the owner of

the property.

17. The plaint thus does not disclose a cause of action for the relief

claimed of partition as co-owner of the four properties held in the name of

the father of the plaintiff and of two properties held in the name of defendant

no.1 being the mother of the plaintiff.

18. The plaint is therefore rejected.

19. It is however clarified that the same would not come in the way of the

plaintiff, if entitled as an heir of the father, to claim a share in the four

properties in the name of the father.

No costs.

RAJIV SAHAI ENDLAW, J

NOVEMBER 29, 2016 „pp/gsr‟ ..

(Corrected and released on 21st December, 2016).