Uttarakhand High Court
SA/118/2023 on 13 October, 2023
Office Notes,
reports, orders or
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Date COURT'S OR JUDGES'S ORDERS
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SA No.118 of 2023
Hon'ble Vivek Bharti Sharma, J.
Present Mr. Piyush Garg, counsel for the
appellants.
2. Present Mr. Vikas Bahuguna, counsel through
V.C with Mr. Rajendra Arya, counsel for
respondent no.1/1.
3. Counsel for the appellants/plaintiffs would
submit that the suit was filed by the
appellants/plaintiffs against their father (now since
deceased) seeking a decree of prohibitory
injunction with averments that the father of the
appellants/plaintiff had sold his property situated at
Aligarh; that, the share of the appellants/plaintiff,
being daughter of the Late Hazari Lal Saini the
original defendant, jointly came out to be ₹58,000/-;
that, the appellants/plaintiff wanted to purchase the
property out of that money, however, as there in-
laws wanted to get the property purchased in their
own name, therefore, the original defendant i.e. the
father of the appellants/plaintiff purchased the
property in his own name with the money that came
in the share of the appellants/plaintiffs for benefit of
appellants/plaintiffs to obviate the
appellants/plaintiffs from the trouble created by the
in-laws of the appellants/plaintiffs; that, thereafter
the appellants/plaintiffs raised the construction, got
started all the civic amenities, operated their
business, opened the PCO in the same property, the
sale deed was in possession of the
appellants/plaintiffs and it remained in their
possession throughout i.e. right from the date of
purchase till the date and motive to purchase the
same was to obviate the appellants/plaintiffs from
the problem being faced by them from their in-laws.
4. Counsel for the appellants/plaintiffs would
further submit that both the courts below got a
finding about the nature and possession of the
property that the possession is with the
appellants/plaintiffs and further observed that the
sale deed is with the appellants/plaintiffs and the
relation of appellants/plaintiff with the original
defendant was also admitted, however, the courts
below did not find favour with the
appellants/plaintiffs on the point that the suit
property was purchased as a Benami transaction for
the benefit of the appellants/plaintiffs by their father
i.e. the original defendant.
5. Per contra, counsel for respondent no.1/1
would oppose the second appeal on the ground that
the appellants/plaintiffs have utterly failed to prove
the source of the money wherefrom the suit
property was purchased. He would further submit
that just before the death the father of the
appellants/plaintiffs i.e. the original defendant had
executed a Will at his place of residence at Aligarh
in the favour of respondents i.e. his sons, therefore,
the matter got finally clinched as the property got
bequeathed in favour of the respondents i.e. legal
heirs of the original defendant.
He would further rely upon the judgment of
Hon'ble Supreme Court in "Pushpalata vs. Vijay
Kumar (Dead) Thr. Lrs. And others, (2022) SCC
OnLine SC 1152".
6. Perused the impugned judgments and the
ruling of Supreme Court in Pushpalata case (supra).
Out of six determinations spelt out in para 22 of this
ruling, five are admitted at bar to be present.
7. In view of the above, the matter needs
deliberation.
8. Admit the appeal on the following substantial
questions of law:-
"i. Whether a suit over which provisions of
Benami Transaction (Prohibition) Act 1988
are held to be not applicable, could have been
dismissed on the ground that the property is
held in the name of the defendant?
ii. Whether a father will not stand in fiduciary
capacity towards his daughters for the
purposes of Section 4 (3) (b) of the Benami
Transaction (Prohibition) Act 1988 and the
benefit of Section 4 (3) (b) of the said Act
could be denied only for the reason that the
suit has been filed against the person who is
claimed to be in fiduciary capacity?
iii. Whether after holding the plaintiffs to be
licensee, and raising permanent construction
at their own cost and expenses, their license
could have been held to be revoked and
whether or not the same would become
irrevocable under Section 60 of the Easement
Act?"
9. Issue notices to remaining respondents
except respondent no.1/1 through ordinary process
and registered post, acknowledgement due as well
as by email and WhatsApp, if available.
10. Steps to be taken within a week.
11. Put up on 28.03.2024.
12. Till further orders, the effect and operation of
the judgment dated 20.02.20218 passed in OS
No.379 of 2006 "Pushpa Saini vs. Hazari Lal" and
judgment dated 16.08.2006 passed in Civil Appeal
No.38 of 2018 "Pushpa Saini vs. Hazari Lal" shall
remain stayed.
13. Interim Relief Application IA No.1/2023 is
disposed of.
(Vivek Bharti Sharma, J.)
13.10.2023
BS
