Dr Sonia And Anr vs Jagat Singh Gahlot And Anr
2022 Latest Caselaw 3127 Del

                                                                           Citation No.2022/DHC/005127




                          $~
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                            Reserved on:      11.11.2022
                                                                            Date of decision: 25.11.2022
                          +     RFA 251/2021, CM APPL. 16486/2021 (stay) & CM APPL.
                                16487/2021 (delay of 215 days)
                                DR SONIA AND ANR                              ..... Appellants
                                                  Through: Mr.Anil Kaushik, Mr.S.N.Pandey,
                                                  Mr.Rajat Rana & Ms.Anju Kaushik, Advs.

                                                     versus

                                JAGAT SINGH GAHLOT AND ANR                ..... Respondents
                                             Through: Ms.Ashu Arora, Adv. for R-1 with
                                             respondent no.1 in person.
                                             Mr.Apurv, Adv. with respondent no.2 in person.

                                CORAM:
                                HON'BLE MS. JUSTICE REKHA PALLI
                          REKHA PALLI, J
                                                           JUDGMENT

1. The appellants, who are the daughter and son-in-law of plaintiff/respondent no.1, are in first appeal before this Court, laying challenge to the decree passed by the learned Trial Court, declaring the respondent no.1 as the owner of flat No.511, CGHS Supriya Apartments, Plot No. 20, Sector 10, Dwarka, New Delhi. The appellants also assail the consequential direction issued to them to hand over peaceful possession of the suit property to the respondent no.1.

2. Before dealing with the rival submissions of the parties, it would be apposite to note in brief, the factual matrix as emerging from the record. The appellant nos.1 and 2 are the married daughter and son-in-law of the

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

respondents. The marriage of the appellant no.1 with appellant no.2 was solemnized in 2005 and they were blessed with a son in April 2007. While the respondent no.1/plaintiff is the father of appellant no.1, the respondent no.2 is the mother of appellant no.1, arrayed as defendant no.1 before the learned Trial Court.

3. It is the common case of the parties that the respondent no.1 was sent to jail on 25.01.1995 after being convicted under Section 302/34 of the IPC. At the time of his going to jail, all his three children were minor, with the appellant no.1, the eldest daughter, being 17 years of age. While in jail, the respondent no.1 availed of parole on a number of occasions. He was finally released from jail on 16.07.2009, after completion of his life sentence of 14 years and has since been residing with his son Nitin at flat No.102, Supriya Apartments, Dwarka, New Delhi.

4. During the period of his incarceration, the respondent no.1, while on parole, sold certain properties, including some ancestral property held by him in Village Tajpur Najafgarh. Part of these sale proceeds were given by him to the appellant no.1, respondent no.2, as also to his son, Nitin. While, the respondent no.1 was still in jail, the appellant no.1 on 03.11.2007, vide a registered sale deed, purchased the suit property for a sum of Rs. 17 lakhs, in her exclusive name.

5. More than seven years after he had been released from jail, the respondent no.1, on 10.11.2016, filed the instant suit against the two appellants, as also his wife/respondent no.2, seeking a declaration to the effect that he was the owner, or in the alternative, co-owner, of the suit property. The respondent no.1 also sought permanent and mandatory injunction against the appellants and respondent no.2 to hand over peaceful

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

possession of the suit property to him. The parties are hereinafter being referred to as per their position before the learned Trial Court.

6. In his plaint, the respondent no.1, as the plaintiff, claimed that the suit property, though in the name of the appellant no.1/defendant no.2, had been purchased entirely out of his funds, with the sum of Rs.8 lakhs towards the sale consideration being paid directly from his bank account, and the remaining sale consideration having been paid out of the sale proceeds of Tajpur land, as also funds transferred to the accounts of the defendants on different occasions by him, and therefore, he was the sole owner of the same. It was further averred that the defendants, in connivance with each other, were trying to now throw him out of the suit property. It was also averred that the defendants were trying to sell the property, which fact came to his knowledge only on 14.10.2016 through some property dealers and, therefore, he was compelled to approach the Court to seek a declaration that he was the owner/co-owner of the property.

7. Through a common and joint written statement, all the three defendants, i.e., the wife, daughter and son-in-law of respondent no.1/plaintiff contested the suit. In the written statement it was averred that the suit was not maintainable as being barred by limitation. The suit property having been purchased in 2007, and the suit having been filed on 10.11.2016, after a period of almost 9 years had passed since the property was purchased, was beyond the three years‟ limitation period provided under Article 58 of the Limitation Act, 1963. It was further averred that the suit was also barred under sections 3 and 4(1) of the Benami Transaction (Prohibition) Act, 1988 ("Old Act") as, even if it was assumed that the suit property had been purchased out of the funds of the plaintiff, it being a

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

benami transaction as per the plaintiff himself, no suit was maintainable to seek a declaration in respect of the said property. The defendants also claimed that in view of the provisions of section 14 of the Hindu Succession Act, 1965 the defendant no.2 had to be treated as the absolute owner of the suit property, and no suit claiming any right in the said property owned by her was maintainable.

8. Based on the evidence of the parties, the learned Trial Court, framed the following issues:-

"1. Whether the suit is barred by limitation, in view of preliminary objection no. (1) of the written statement ? OPD

2. Whether the suit is hit by Section 3 & 4(1) of Benami Transaction (Prohibition) Act 1988, in view of preliminary objection no. (2) of the written statement ? OPD

3. Whether the suit is hit by Section 14 of Hindu Succession Act, in view of preliminary objection no. (3) of the written statement ? OPD

4. Whether the plaintiff has no locus standi to file the present suit, in view of, preliminary objection no. (6) of the written statement ? OPD

5. Whether the plaintiff is entitled to the decree of declaration, as prayed for in prayer (a) ? OPP

6. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer (b) ? OPP

7. Whether the plaintiff is entitled to the decree of possession/mandatory injunction as prayed for in prayer (d) ? OPP

8. Relief;"

9. In support of his claim, the plaintiff examined seven witnesses, while the defendants examined two witnesses, including the respondent no.2, who

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

was defendant no.1 in the suit. At this stage itself, it may be noted that except for PW5, none of the other six witnesses of the plaintiff were cross examined by the defendants. It also needs to be noted that the only two witnesses of the defendants were never cross examined.

10. Based on the evidence led by the parties, the learned Trial Court has, vide its impugned judgment dated 16.05.2020, decreed the suit of the plaintiff by deciding all issues in his favour and has, accordingly, passed a decree of declaration in his favour, by holding him to be the owner of the suit property, and has consequently, directed the defendants to hand over peaceful possession of the suit property to him.

11. It is the appellants‟ case that though a common written statement on behalf of all the three defendants, including the respondent no.2 herein, was filed before the learned Trial Court, the suit was subsequently being defended only by defendant no.1, who kept assuring the two appellants/defendant nos. 2 and 3, that she was taking all steps to bona fidely defend the suit. It is only after they learnt about the passing of the impugned judgment that they realised that the defendant no.1, had, in connivance with the plaintiff, filed a false affidavit supporting his claim that the suit property was purchased by utilising the funds provided by him, and therefore, he was the sole owner of the same. It is in these circumstances, that the present appeal came to be filed before this Court.

12. In support of the appeal, Mr.Anil Kaushik, learned counsel for the appellants has made the following submissions:-

(i) His first and foremost submission is, that the learned Trial Court has gravely erred in passing the impugned judgment by presuming that the transaction was governed by the Benami Transactions (Prohibition) Act,

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

2016 ("Amended Act, 2016"), and has consequently, come to an erroneous conclusion that the purchase of the suit property in the name of the defendant no.2 on 03.11.2007, was not hit by the bar under the Amended Act, 2016. It is his case that the learned Trial Court failed to appreciate that the Amended Act was not applicable to the purchase of the suit property, which admittedly took place in 2007. He contends that since the suit property was purchased in 2007, the purchase thereof was to be governed by the Old Act, under the provisions whereof, the appellant no.1 being a married daughter, would not fall under the exemption under Section 3(2)(a) of the said Act. He submits that even if the plaintiff‟s plea that the property was purchased by him, though in the name of his married daughter/defendant no.2, were to be accepted, the same would still be a benami transaction under the provisions of the Benami Transactions (Prohibition) Act, as applicable on the date of the purchase of the property. No suit to seek any declaration in respect of the said property purchased in the name of the married daughter was, therefore, maintainable in view of the specific bar under the Benami Transactions (Prohibition) Act, 1988.

(ii) Mr. Kaushik next submits that even otherwise, once the suit property stands in the name of the defendant no.2, a Hindu female, she must, in terms of Section 14 of the Hindu Succession Act, 1965 be treated as its absolute owner. Consequently, no declaration could be sought by the plaintiff to the effect that the suit property was in fact owned by him and was not purchased with the intention of letting his married daughter/ defendant no.2 to be its absolute owner. The defendant no.2 being a coparcener, had an equal right to the ancestral properties in the name of the

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

plaintiff, and therefore, was entitled to receive a share from the proceeds of the sale of ancestral land in village Tajpur.

(iii) He further submits that the learned Trial Court has also failed to appreciate that the suit was grossly barred by limitation, as the plaintiff‟s right to sue, if any, accrued in the year in which the property was purchased, i.e., in 2007 whereas, the suit was filed after a long gap of 9 years. The respondent no.1/plaintiff was, from the very beginning, always aware that the suit property was in the name of the defendant no.2, the sale deed for the same having been executed in her exclusive name on 03.11.2007. In fact, he, after his release from jail in 2009, being aware that the defendant no.2/his married daughter was the exclusive owner of the suit property, started residing in a different property, being flat no.102 Supriya Apartments, alongwith his son. He, therefore, contends that the suit filed by the plaintiff in 2016 was clearly barred by Article 58 of the Limitation Act, 1963 which provides a period of three years for filing of a suit, seeking declaration from the date when the right to sue first accrues. In support of his plea, he places reliance on the decisions of the Apex Court in Ramti Devi vs. Union of India, (1995) 1 SCC 198, Dahiben v. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366 and Khatri Hotels (P.) Ltd. vs. Union of India, (2011) 9 SCC 126

(iv) Finally, he submits that even otherwise as per the own case of the plaintiff, he had contributed only Rs.8 lakhs towards the purchase of the suit property, which was purchased by the defendant no.2 for a much higher consideration of Rs. 17 lakhs. The plaintiff having voluntarily provided a sum of Rs 8 lakhs to the defendant no.2 without any conditions whatsoever, cannot now contend that he is the owner of the suit property.

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

The fact that the suit property was purchased by the defendant no.2 in her exclusive name was always well known to the plaintiff, and therefore, he cannot now be permitted to claim that the same was purchased for him. He, therefore, prays that the appeal be allowed.

13. Per contra, Ms.Ashu Arora, learned counsel for the respondent no.1/plaintiff vehemently opposes the appeal by raising the following contentions:

(i) She first submits that the learned Trial Court has rightly held that the suit filed by the plaintiff was within limitation as the cause of action for filing the same accrued only in 2016, when the defendants started disputing the title of the plaintiff and threatened to dispossess him from the suit property. The suit property having been purchased for the plaintiff, though in the name of his daughter/ defendant no.2, was always held in a fiduciary capacity by the defendant no.2 and, therefore, she cannot claim that she was the owner of the said property. She submits that the right to sue accrues only when the right is disputed, and since in this case, the plaintiff‟s right to the suit property was, for the first time infringed only in 2016, the suit, as filed in 2016, was within the limitation period. By placing reliance on Section 10 of the Limitation Act, 1963, she also submits that since there was a breach of this trust on the part of the defendants in 2016, it is only then that the limitation period commenced, and not in 2007/2009, as contended by the appellants. In support of her plea that the „right to sue‟ accrued only from 2016, she relies on the decision of the Kerala High Court in Belcita Vincent Gomez vs. Vincent Gomez 2013 4 KLT 890, and on the decision of the Madhya Pradesh High Court in Kamla Baiand Ors. vs. Prem Bai and Ors., AIR 2020 MP 171.

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

(ii) She next submits that the learned Trial Court has rightly held that the suit wherein the plaintiff had sought not only the relief of simpliciter declaration, but also the relief of possession, was governed by Article 65 and not Article 58 of the Limitation Act, 1963. When a suit seeking both possession and declaration of title is filed, as against a suit whereby only declaration of title without any ancillary reliefs is sought, it is only Article 65 of the Limitation Act which provides a limitation period of 12 years would be applicable, and not Article 58, which prescribes a limitation period of three years for a suit seeking declaration of title. When there are two reliefs being sought in a plaint in respect of the suit property, i.e., when it is not a simpliciter suit for declaration of title, but a suit for declaration with further relief, as in this case for possession as well, the limitation period is enlarged, and the period of twelve years under Article 65 would become the determinative factor. She therefore, contends that even assuming that the cause of action arose in 2007/2009, the reliefs sought in the present case were squarely governed by Article 65, and therefore, the suit was filed well within limitation. She relies on the decision of the Andhra Pradesh High Court in Ashok Kumar (supra), and on the decisions of the Telangana High Court in B.Pullaiah vs. J. Mala Pulamma, (2014) 4 ALT 326 AIR and Gottumukkala Sundara vs. Pinnaraju Venkata,(2016) 2 ALT 497.

(iii) She finally submits that the appellants‟ plea that the suit was barred by Sections 3 and 4(1)(b) of the Benami Transactions (Prohibition) Act, 1988 (Old Act) is also wholly misplaced. It is her case that the suit having been filed on 10.11.2016, by which date the Old Act already stood amended, as rightly held by the learned Trial Court, the parties would be

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

governed by the amended provisions which came into force on 01.11.2016. The purchase of the property in the name of defendant no.2, was therefore, rightly not to be treated as „benami‟ by the learned Trial Court, and the plaintiff was held entitled to seek declaration in respect thereof by showing that the funds towards sale consideration had been provided by him. Moreover, the plaintiff‟s evidence to show that the sale consideration was met solely by the funds provided by him either directly, or through the accounts of his wife/defendant no.1, remained unrebutted, and therefore, the learned Trial Court was justified in accepting his unrebutted testimony to hold that he, having paid the entire sale consideration, was the actual owner of the suit property, despite the same having been purchased in the name of his daughter/ defendant no.2. The property was purchased by the plaintiff, in the name of the defendant no.2, with the intention that she would take care of the family in his absence, as his other children were minor. The plaintiff had only expected the defendant no.2 to safeguard the interests of the family, and had never intended for her to enjoy absolute ownership of the suit property. She, therefore, submits that as the suit property was purchased in the name of his daughter for the benefit of his family, so that she could keep it "in Trust" for her father. In support of her plea, she relies on the decision of the Kerala High Court in Belcita Vincent Gomez (supra).

14. At this stage, I may note that the respondent no.2, who was the defendant no.2 before the learned Trial Court, has before this Court, supported the impugned judgment and has, therefore, like the respondent no.1,/plaintiff prayed that the appeal be dismissed.

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

15. Before embarking on the submissions made at the bar, it would be appropriate to first note the aspects on which the parties are ad idem:

(i) Both parties agree that an amount of Rs.8 lakhs had been paid towards consideration of the suit property by the plaintiff, directly from his bank account.

(ii) A registered Sale deed dated 03.11.2007 qua the suit property was executed in the exclusive name of the defendant no.2, who was already married to appellant no.2/ defendant no.3 at the time of the purchase of the suit property.

(iii) The plaintiff has not seriously disputed that he was all along aware of the sale deed having been executed in favour of the defendant no.2 on 03.11.2007. His case, however, is that his cause of action arose only in 2016, after the defendant no.2 started disputing his ownership of the suit property whereas the appellants contend that the cause of action arose in 2007/2009.

(iv) Before the learned Trial Court, neither defendant no.2, nor defendant no.3, led any evidence. However, an affidavit in evidence was filed by defendant no.1, supporting the plaintiff‟s stand that the entire sale consideration for the suit property had been paid by him. The only other defence witness presented the bank statement of the defendant no.1, which showed the payment of Rs 8 lakhs from the plaintiff‟s account to that of the defendant no.1.

16. Having noted the facts on which the parties are ad idem, I may now proceed to deal with the issues arising for my consideration in the present case.

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

17. Though the parties have made extensive submissions not only on the aspect as to whether the suit as filed was maintainable, but also on the question of limitation, I am of the considered opinion that the primary issue which needs to be determined is regarding the maintainability of the suit. While the appellants have vehemently urged that no cause of action had arisen in favour of the plaintiff, as the suit as framed was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988, the respondents have contended that the suit having been filed after the Amended Act, 2016 came into force, and was, therefore, maintainable as per the provisions of the Amended Act, 2016. Thus, what emerges is that, while it is the appellants‟ stand that the suit was governed by the provisions of the Old Act, it is the respondents‟ stand that the suit is governed by the Amended Act. I am, therefore, of the view that the pivotal question to be first determined is, as to whether, the suit as filed, was to be governed by the provisions of the Old Act, or by the Amended Act. In order to appreciate this plea, it would be appropriate to refer to the Sections 3(2(a) and 4(1) of the Old Act, and Section 2(9)(A) of the Amended Act:

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

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

(ii) participant as an agent of a depository. Explanation- The Expressions "depository" and "Participants shall have the meanings respectively assigned· to them in clauses (e) and (g) of subsection (1) of section 2 of the Depositories Act, 1996.

(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.

(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. "Section 4 of the Old Act 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."

"2. Definition: In this Act, unless the context otherwise requires,--

(1.} to (8} xxxxx (9) "benami transaction" means,-(A) a transaction or an arrangement--

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

( a) where a property is transferred to, or is held by, a person, and the Consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by--

(i).xxxxx

(ii) xxxxx

(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;

(iv) xxxxx"

18. From the undisputed factual matrix, it is apparently clear, that the property in dispute was purchased in the name of the defendant no2, the married daughter of plaintiff, on 03.11.2007, in her exclusive name. It is the common case of the parties that on this date, the Old Act was in vogue, and as per Section 3(2)(a) thereof, the purchase of property by any person in the name of his wife or unmarried daughter, was not to be treated as a benami transaction. However, this exemption from a property being treated as benami, was not applicable to the property purchased by an individual in the name of his married daughter. The position, thus, under the Old Act was that, property purchased by an individual in the name of his married daughter, if claimed to have been purchased by an individual for his benefit, and for consideration paid by him, had to be necessarily treated as benami property under Section 3(2), as the exemption applicable to an unmarried daughter was not applicable to a married daughter. This position has undoubtedly changed under the Amended Act, and now, property

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

purchased even in the name of a married daughter, would in terms of Section 2(9)(A) thereof, fall within the exceptions to a benami transactions.

19. It is the plaintiff‟s plea, that the property, though purchased in the name of defendant no.2, was purchased for his benefit, and the entire consideration thereof was provided by him. It is his further case that, since, as per the exceptions provided under section 2(9)(A) of the Amended Act, 2016, property held by a child, whether married or unmarried, is not treated as a benami transaction, the bar under section 4 of the Benami Transactions (Prohibition) Act, which prohibits filing of a suit to enforce any right in respect of any property held benami, against the person in whose name the property is held, would not apply to the present case. Though, this argument appears to be attractive on the first blush, on a closer scrutiny of the factual matrix, this plea of the respondents must be necessarily rejected. As already noted hereinabove, the transaction of purchase of the suit property took place on 03.11.2007, when the Old Act was in vogue, according to which, the purchase of property in the name of a married daughter like the defendant no.2, did not fall within the stipulated exemptions to a benami transaction. The plaintiff has vehemently contended that since the suit was filed on 10.11.2016, the parties will be governed by the provisions of the Amended Act, and therefore, in view of the provisions of Section 2(9)(A) thereof, the bar under Section 4 of the Act applicable to benami transactions, was not applicable to the purchase of the suit property. The Amended Act, 2016 came into existence only on 01.11.2016, and therefore, the provisions thereof, which have not been made retrospective, cannot be made applicable to a transaction which took place much prior. It may be noted that it is not even the case of the plaintiff

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

that the provisions of the Amended Act, 2016 were to be applied retrospectively. Merely because the suit has been filed after the enactment of the Amended Act, 2016 would not alter the fact that the transaction took place when the provisions of the Old Act were applicable. The parties were therefore, at the time of the purchase of the suit property, governed squarely by the provisions of the Old Act under which, the suit of the nature filed by the respondent no.1 seeking declaration qua property purchased in the name of his married daughter/defendant no.2, was clearly barred under Section 4 of the Benami Transactions (Prohibition) Act. The learned counsel for the appellants is, therefore, correct in contending that the very institution of the suit was hit by Section 4 of the Benami Transactions (Prohibition) Act,1988.

20. The learned Trial Court, has however, without appreciating this vital fact, that the suit property was purchased much prior to the coming into effect of the Amended Act, 2016, proceeded to hold that the parties would be governed by the provisions of the Amended Act, by observing as under:

"32. During the course of arguments Ld. Counsel for the plaintiff has contended that the present suit has been filed after coming into ·force The Benami Transactions (Prohibition) Amendment act, 2016, (hereinafter referred to as the Amended Act) therefore, the provisions of the Amended Act are applicable to the fact of the present case. He further submitted that as per section 2(9)(A)(b) Exception (iii) of the Amended Act, the suit property transferred in the name of defendant no. 2 by plaintiff is not a benami transaction and the same is also not hit by Section 3 & 4 of the Old Act. In this regard reliance is placed upon Manoj Anand v. Mamta Arora in RFA No. 522/2017, judgment passed by Hon'ble High Court of Delhi.

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

33. Ld. Counsel for the plaintiff has further submitted that there is no doubt that by virtue of Section 14(1) of the Hindu Succession Act, a female has become absolute owner of the property .owned and possessed by her after coming into force the Hindu Succession Act, however, the plaintiff has purchased the suit property in the name of defendant no. 2 from his own funds for the welfare of his family, therefore the Sections of Hindu Succession Act cannot override the provision of the amended Benami Transaction Act.

34. He further submitted that plaintiff has locus standi to file the present suit in as much as it is legally permissible for a person to purchase immovable property in the name of his wife /daughter by virtue of provision of the unamended/Amended Act and plaintiff being de jure owner of the property is entitled to seek the ownership and possession of the same from defendant no. 2. Ld. Counsel for defendant no. 1 has argued on the lines of plaintiff and supported the case of plaintiff.

36. It is relevant at the outset to state that Section 4(3) of the Old Act as it stood was replaced in terms of the Amended Act which came into force with effect from 01.11.2016 and what was contained in the same part of sub sections (3) of Section 4 of the Old Act as originally' stood was incorporated in the definition of "Benami Transaction': as found in Section 2 (9) of the Amended Act. Relevant provision of the Section 2(9) of Amended Act is as under: "2. Definition: In this Act, unless the context otherwise requires,--

(1.} to (8) xxxxx (9) "benami transaction" means,-- A) a transaction or an arrangement--

( a) where a property is transferred to, or is held by, a person, and the Consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by--

(i).xxxxx

(ii) xxxxx

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;

(iv) xxxxx"

37. It may be relevant to mention here that in terms of Section 4(1) no suit shall lie 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. Further, there cannot be any suit in respect of a property held benami against a person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof, prior to the coming into force of Section 4(1 ).Section 4 (2) bars a claim or defence permitting the "real owner" of such property and has been held from saying that the property is benami. It may be relevant to mention here that the bar contained in the Old Act, prior to its amendment and now the Amended Act, bars a 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 any other person, by or on behalf of a person claiming to be the real owner of such property. 'Benami transaction' in the Act, prior to its amendment, was described as 'any transaction in which property is transferred to one person for a consideration paid or provided by any another person'. The Amended Act defines 'benami property' as meaning any property which is the subject matter of a benami transaction and describes a 'benami transaction' as meaning a transaction or an arrangement "where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another. person; and the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

38. At this stage I will deal with the controversy whether the Old Act or the Amended Act is applicable to the facts of the present suit, in this regard it may be noted that Hon'ble High Court of Delhi in Judgment Neeru Dhir &Ors. v. Kamal Kishore Dhir, in RFA No. 73/2019 in para 12, has observed as under :

"12. The plea taken by Mr. Chawla, learned counsel for the appellants that the bar placed under Section 4 of the Benami Act would not apply retrospectively, is no longer res integra. The said proposition had come up before the Supreme Court in R. Rajagopal Reddy (dead) by LRs and Ors. vs. Padmini Chandrasekharar. (dead) by LRs reported as (1995) 2 SCC 630, wherein Justice S.B. Majmudar, speaking for the other members of a three Judge Bench had arrived at a conclusion that Section 4(1) of the Benami Act does not have any retrospective application. By the same analogy, any amendment to the said enactment by virtue of Act 43 of 2016, that came into effect on 01.11.2016, cannot acquire retrospectively in a case like the present one where the suit was instituted by the appellants well before the said date, in February, 2016. We therefore have no hesitation in accepting the submission made by learned counsel for the appellants that the amended Benami Act, wherein sub- section (3) of Section 4 · was omitted, would not apply to the instant case. Instead, the Old Act, which included sub- section (3) to Section 4, would govern the case."

39. In addition to it, Hon'ble High Court in Anis Ur Rehman v. Mohd. Tahir, judgment passed in RFA No. 855/2018 has held that the Amended Act is applicable with retrospective affect and in Para 8 has observed as under :

"In view of the aforesaid discussion, I cannot agree with the ratio of the judgment of the Bombay High Court in the case of Shri Joseph Isharat v. Smt. Rozy Nishikant Gaikwad in Second Appeal No. 749/2015 decided on 01.03.2017, which was cited on behalf of respondents/defendants that the

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

provisions of the Amended Act are prospective"

40. The Hon'ble Supreme Court in case Mangathai Ammal v. Rajeswari, in CA No. 4805/2009 in para no. 12 has observed that :

"It is required to be noted that Benami Transaction came to be amended in the year 2016 as per section 3 of the Benami Transaction Prohibition Act 1988, there was a presumption that the transaction made in the name of wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3(2) of the Benami Transaction Act, 1988, the statutory presumption, which was rebuttable has been omitted. It is the case on behalf of the respondent that therefore in view of the omission of. section 3{2) of the Benami Transaction Act the plea of statutory transaction that the purchase made in the name of wife and children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this Court in case of Binapani(supra). The Benani Transaction (Prohibition) Act would not be applicable retrospectively.

41. From the above discussion it can be safely concluded that the Amended Act is not applicative retrospectively, however the Amended Act is applicable w.e.f. 01.11.2016 and the suit has been filed on 11 November 2016, therefore, what will govern the parties is not the Old Act but the Amended Act."

21. In my considered view, the learned Trial Court has failed to appreciate that it was the date of the purchase of the suit property which was relevant to determine as to whether Old Act would apply, or the Amended Act, 2016 would apply. When it is undisputed that the transaction, in respect whereof, the plaintiff was seeking a declaration, took place on 03.11.2007, i.e., much prior to the coming into force of the

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

Amended Act, the transaction, and any declaration qua the same, had to be tested on the parameters applicable on the date of the transaction. The learned Trial Court has, therefore, erred in holding that the transaction would be governed by the Amended Act, 2016.

22. Once I find that the transaction, i.e., the purchase of the suit property, was governed by the Old Act, under which Act, purchase of property in the name of a married daughter was not exempted from the rigours of benami transactions, the suit preferred by the plaintiff was clearly hit by the bar under Section 4 of the Benami Transactions (Prohibition) Act, 1988. The suit as instituted was clearly not maintainable, and deserved to be outrightly rejected. Once the exemption under Section 3(2)(a) of the Old Act was not applicable to the purchase of the suit property in the name of the defendant no.2, a married daughter, irrespective of his plea that the entire sale consideration was paid by him, the plaintiff was barred under section 4 of the Old Act from seeking such a declaration as sought by him.

23. Once, on account of the bar under section 4 of the Benami Transactions (Prohibitions) Act, the plaintiff had no legal right to question the sale deed executed in 2007 in the name of the defendant no.2/, his married daughter, the suit is liable to be rejected on the ground of maintainability itself. The plaintiff‟s suit must necessarily fail and, therefore, I do not deem it necessary to deal with the other pleas raised either by the appellants, or the respondents. Consequently, despite extensive submissions having been made by the learned counsel for the parties on the question of limitation, this Court is not delving into the question as to whether the suit, as filed by the plaintiff, was governed by Article 58 or Article 65 of the Limitation Act, 1963. For the same reasons,

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00 Citation No.2022/DHC/005127

I am refraining from examining the question as whether the suit, as filed by the plaintiff, was barred under section 14 of the Hindu Succession Act, 1965.

24. For the aforesaid reasons, the impugned judgment being unsustainable is set aside and consequently, the suit filed by the plaintiff stands dismissed.

25. The appeal is accordingly allowed in the aforesaid terms.

(REKHA PALLI) JUDGE NOVEMBER 25, 2022 kk

Signature Not Verified Digitally Signed By:GARIMA MADAN

Signing Date:25.11.2022 15:06:00