Delhi District Court
Smt. Kanta vs ) Sh. Anil Kumar on 24 March, 2015
IN THE COURT OF SH. RAVINDER SINGH1 : A.D.J08(CENTRAL):
TIS HAZARI COURTS: DELHI
SUIT NO. 180/14
(Old Suit No. 25/2011)
Smt. Kanta
W/o Late Sh. Rajesh Kumar
D/o Late Sh. Roop Ram Moria
R/o D81, Madipur, J.J. Colony,
New Delhi. ............... Plaintiff
V/s
1) Sh. Anil Kumar
S/o Late Sh. Roop Ram Moria
R/o Flat no. 65D, DDA Flats,
Residential Colony Now known as
Pandav Nagar, New Shadi Pur Depot,
New Delhi.
2) Sh. Manohar Lal
S/o Late Sh. Roop Ram Moria
R/o B175, DDA Flats, Madipur Village,
New Delhi.
3) Sh. Raj Pal
S/o Late Sh. Roop Ram Moria
R/o E10, Hastal Vihar, Uttam Nagar,
New Delhi.
4) Sh. Anand Kumar
S/o Late Sh. Roop Ram Moria
R/o Flat No. 65C, DDA Flats,
Residential Colony Now known as
Suit no. 180/14 1/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
Pandav Nagar, New Shadi Pur Depot,
New Delhi.
5) Ms. Durgesh
W/o Sh. Laxami Narain
D/o Late Room Ram Moria
R/o H.No. 3243/30, Bidan Pura,
Karol Bagh, New Delhi05.
6) Ms. Geeta
W/o Sh. Dwarka Prasad
D/o Late Room Ram Moria
R/o 2/6043, Gali No. 1,
Dev Nagar, Karol Bagh,
New Delhi05.
7) Sh. Deepak Kumar
S/o Sh. Panna Lal
R/o D15, Sector 41,
Noida, UP.
8) Smt. Bina Sung
W/o Sh. Johnson Sung
R/o 3548, Regarpura,
Gali No. 8, Third Floor,
Karol Bagh, New Delhi05. ...............Defendants
Date of Institution : 04032011
Date on which order was reserved : 23032015
Date of Pronouncing order : 24032015
Suit no. 180/14 2/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
ORDER
1. Vide this order, I shall dispose off defendant no. 8 application u/o VII Rule 11 r/w Order XII Rule 6 & Section 151 CPC.
2. Defendant no. 8 in her application alleged that plaintiff filed instant suit for partition in respect of DDA Flats bearing no. 65D, Pandav Nagar, Near Shadi Pur Depot, New Delhi (hereinafter referred as suit property) which she has purchased from defendant no. 1. Defendant no. 8 pleaded that the suit is barred U/s 4 of Benami Transactions (Prohibition) Act 1988 (hereinafter referred as Act), because plaintiff has admitted that suit property was purchased by her father in the name of her brother i.e., Defendant no. 1. Further Defendant no. 8 also pleaded that suit is not maintainable as plaintiff has not claimed partition qua property bearing flat no. 65C, Pandav Nagar, Delhi which was also purchased by her father. Accordingly, defendant no. 8 prayed for dismissal of suit with exemplary cost.
3. Plaintiff contested the application by filing detailed reply stating that instant application is nothing but abuse of process of law as to decide an application U/O VII Rule 11 CPC only averments of plaint are to be seen. Plaintiff denied that suit is barred U/Sec 4 of Act. Further plaintiff stated that she is going to file an application for Suit no. 180/14 3/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
amendment in plaint seeking the relief of partition in respect of other property of her father. Accordingly, she prayed for dismissal of application with cost.
4. I have heard the arguments of Ld. Counsel for defendant no. 8 and plaintiff and perused the material placed on record.
5. Admittedly, Plaintiff Initially filed instant suit against her four brothers and two sisters but none for them appeared, hence they all were proceeded exparte vide order dated 07102011. Thereafter, plaintiff implead Sh. Deepak Kumar and Smt. Bina Sung as defendant no. 7 and 8 respectively by moving an application under order VI Rule 17 r/w Order I Rule 10 CPC. Defendant no. 7 chose not to appear before the court so, he was also proceeded exparte vide order dated 1282013. The only contesting defendant is now defendant no. 8 who moved aforesaid application.
6. Plaintiff in her suit alleged that she is daughter of late Sh. Roop Ram Moria, who had four sons and three daughters including herself. Plaintiff further alleged that her father purchased suit property for a sum of Rs. 72,000/ and her father got executed SPA and GPA in his own name whereas receipt of payment and agreement to sell were executed in the name of his minor son i.e., defendant no. 1. Plaintiff Suit no. 180/14 4/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
further alleged that her father purchased the suit property in the name of defendant no. 1 for benefit of all the family members. Plaintiff further alleged that she was married on 28111996 but unfortunately her husband was expired on 542002 leaving herself and two male children, plaintiff further alleged that her father told her that suit property had been purchased for the benefit of all family members including her so she has a right to stay in the suit property during his life time. Plaintiff further alleged that she remained in possession of a room in suit property till 10122009 and during her stay, defendant no. 1 had never objected to use of the room by the plaintiff as he knew that she is also one of the coowner of suit property. Plaintiff further alleged that after the death of her mother in the year 2009, defendant no. 1 became dishonest and he did not allow her to enter in the room of suit property so she called other brothers and sisters but instead of resolving the matter, defendant no. 1 has openly challenged them that suit property is in his own name and he will sell the same within two months. Plaintiff further alleged that during pendency of the suit she came to know from her brother defendant no. 4 who is residing adjacent to the suit property that defendant no. 8 alongwith her husband is making addition and alteration in the suit property so she served a legal notice upon defendant no. 8 and her husband who replied her notice but did not disclose as to in what capacity they are carrying out constructions in Suit no. 180/14 5/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
the suit property. Plaintiff further alleged that after detailed enquiry from the office of Janakpuri, she came to know that defendant no. 7 by way of agreement to sell dated 3122011 has purchased the suit property from defendant no. 1 who later on, sold the same to defendant no. 8 on 2112012. Plaintiff further alleged that defendant no. 1 was having no right, title or interest to sell the suit property to defendant no. 7 and further defendant no. 7 has no right, title or interest to sell the suit property to defendant no. 8. Accordingly, she is entitled after determining her share a decree of partition and declaration and injunction. Hence, she filed the suit.
7. Defendant no. 8 contested the suit by filing her written statement stating therein that suit is liable to be dismissed under Order VII Rule 11 CPC because same is barred u/s 4 of Act. Defendant no. 8 further stated that defendant no. 1 was the sole owner and in possession of suit property. Defendant no. 8 further stated the present suit is not maintainable as the same is for partial partition as Plaintiff has not claimed partition qua other property of her father i.e, property bearing no. 65C, Pandav Nagar, Delhi. On merit, defendant no. 8 denied that plaintiff has a share in the suit property as suit property belongs to defendant no. 1 who sold the same to defendant no. 7 who later on sold her and accordingly, she prayed for dismissal of suit. Suit no. 180/14 6/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
8. Plaintiff filed replication to the written statement of the defendant no. 8 wherein, she stated that Section 4 of Act does not attract to the facts and circumstances of the case because her late father had purchased the suit property for the benefit of entire family including herself. So she is claiming partition of the suit property. Plaintiff further reiterated the facts stated in the plaint and denied the contents of written statement.
9. Ld. counsel for defendant no. 8 contended that plaintiff in her plaint categorically admitted that her father Late Roop Ram Moria purchased suit property in the name of defendant no. 1 so suit is barred U/s 4 of Act.
10. Ld. Counsel for plaintiff contended that section 4 of Act is not applicable as suit property was purchased in the year 1986 whereas Act is came into force w.e.f. 1951988. Ld. Counsel for plaintiff further contended that late father of plaintiff and defendant no. 1 to 6 Sh. Roop Ram Moria purchased the suit property on 01121986 in the name of his minor son being coparcener of HUF i.e., defendant no. 1 for the benefit of all the family members. Ld. Counsel for defendant also contended that plaintiff's father under trust purchased the suit property in the name of defendant no. 1, so defendant no. 1 is trustee because suit property was purchased for the benefit of family Suit no. 180/14 7/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
members. Hence, plaintiff comes under the exception of Section 4 (3) (a) & (b) of Act. In support of his argument Ld. Counsel for defendant relied upon Guru Narayan vs Sheelan Singh, AIR 1918 PC 140.
11. Plaintiff admitted in her plaint that suit property was purchased by her father Late Sh. Roop Ram Moria in the name of his son i.e., defendant no.1. The relevant para4 of plaint is as under.
"That aforesaid flat was purchased in the name of defendant no. 1 for the benefit of all the family members of late Room Ram Moira including the plaintiff"
12. Section 4 of Benami Transaction (Prohibition) Act 1988 is 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 not in dispute that the suit property was purchased in name of defendant no. 1 on 01121986 and Act came into force on 1951988. Suit no. 180/14 8/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
Plaintiff filed instant suit on 0432011. So it is clear that plaintiff filed instant suit after commencement of the Act. Hon'ble High Court of Delhi in Manoj Gupta vs Mrs. Manju Rani & Others RSA no. 53/2011 while relying upon Probodh Chandra Ghosh vs Urmila Dasi AIR 2000 SC 2553 held that "In view of the aforesaid judgment, it becomes clear that any suit with claim of right inhering in the real owner in respect of any property held benami would not be enforceable after the enactment of the Act of 1988 even if such transaction had been entered into prior to 1951988 (date of enactment of Act) and no suit could be filed on the basis of such a plea after 19588. Expression "perspective operation" of the Act in this context means that in case any suit to enforce the right in the property held benami if pending, prior to the Act but in case any suit brought after the enactment of period prior to the enactment of Act will not be entertainable on account of the fact that law has come into being prohibiting the enforcement of any right in benami property".
14. In view of above discussion, I find no force in argument of Ld. Counsel for plaintiff that section 4 of Act is not applicable because suit property was purchased in the year 1986 whereas Act is came into force w.e.f. 1951988 .
15. Now it is to be seen, whether plaintiff case comes under exception of Section 4 (3) (a) & (b) of Act. It is admitted that plaintiff and defendant no. 1 to 6 are brother and sister but plaintiff in her entire plaint has not pleaded the formation of Hindu Undivided Family or Suit no. 180/14 9/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
that she is a coparceners of said HUF and the payment of consideration amount to purchase the suit property from the fund of Hindu Undivided Family. It is also admitted fact that plaintiff has not pleaded that defendant no. 1 had no source of income at the time of purchase of suit property. It is also pertinent that plaintiff has not pleaded in her entire plaint or even in replication that there is a trust and defendant no. 1 is one of the trustee and suit property was purchased for the benefit of person/persons for whom defendant no. 1 is a trustee. The case law relied by Ld. Counsel for plaintiff is not applicable to the facts of the instant case.
16. In view of above discussion, I am of the considered opinion that plaintiff case does not come under exception of Section 4 (3) (a) &
(b) of Act however her case squarely covers under prohibition of Section 4 of the Act.
17. Ld. Counsel for defendant no. 8 contented that plaintiff not only in the replication but also in the reply to her application admitted that plaintiff's father also purchased another property bearing no. 65C Pandav Nagar, Delhi, but plaintiff has not claimed partition in respect of that property. Hence, instant suit of plaintiff is for partial partition and therefore, same is not maintainable. In support of his arguments Ld. Counsel for defendant no. 8 has relied upon R. Mahalakshmi vs. Suit no. 180/14 10/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
A.V. Anantharaman & Ors, (2009) 9 SCC 52; Kenchegowds (since deceased) by Legal Representatives vs. Sri Siddegowda @ Motegowds, JT 1994 (4) SC 125 and Bhajahari & Ors vs Abdul Karim Shaikh & Ors AIR 1988 Calcutta 421.
18. It is admitted fact that plaintiff filed instant suit for declaration, partition and possession in respect of suit property. Defendant no. 8 in her written statement vide para no. 3 & 4 of Preliminary Objection categorically stated that plaintiff has not claimed partition qua property bearing no. 65C, Pandav Nagar, New Delhi which was purchased by plaintiff's father and same was given to defendant no.
3. Plaintiff has not denied this fact in replication. Further plaintiff in reply to the aforesaid application stated that she is going to file an application for amendment in plaint seeking the relief of partition in respect of other property of her father. Under these circumstances, it is clear that plaintiff has admitted clearly and unequivocally that property bearing no. 65C, Pandav Nagar, New Delhi was purchased by her father during his life time and same is in possession of defendant no. 3 and she has not claimed partition in respect to that property. Admittedly till date plaintiff has not filed any application for seeking amendment of plaint qua relief for partition of property bearing no. 65C Pandav Nagar, New Delhi also. Hence, it is clear that plaintiff has filed the instant suit for partial partition of property of her late father.
Suit no. 180/14 11/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
19. Hon'ble Supreme Court in R. Mahalakshmi v. A.V. Anantharaman & Ors., (2009) 9 SCC 52, held that "The matter deserves to be remanded to the trial court because all the properties that were inherited by the father of the parties by virtue of registered deed of partition dated 27.04.1954 were not included in the present partition suit. The appellant herein had taken a consistent stand right from the very beginning that unless all the properties are included in the plaint, the suit would be bad and partial partition cannot be effected".
20. Further Hon'ble Supreme Court in Kenchegowda (since deceased) by Legal Representatives v. Sri Siddegowda @ Motegowda, JT 1994 (4) S.C. 125, also held that "A decree for partition could not have been passed on a mere application for amendment Even otherwise, a suit for partial partition in absence of the inclusion of other joint family properties and the impleadment of other cosharers was not warranted in law.
21. Further, Hon'ble Supreme Court in Bhajahari & Ors. v. Abdul Karim Shaikh & Ors., AIR 1988 Calcutta 421, held that "We must hold that the suit for partial partition at the instance of the plaintiffs was not maintainable".
22. In view of above discussion, it is clear that plaintiff has not included Suit no. 180/14 12/13 Smt. Kanta v. Sh. Anil Kumar & Ors.
all the properties of her late father in the instant suit. Hence, instant suit for partial partition at the instance of plaintiff is not maintainable.
23. In view of aforesaid discussion, defendant no. 8 application u/o VII Rule 11 r/w Order XII Rule 6 & Section 151 CPC is disposed of as allowed and accordingly, suit is dismissed. No order as to cost. Decree Sheet be prepared.
24. File be consigned to Record Room.
Announced in the open court (Ravinder Singh1)
on 24032015 Addl. District Judge - 08
(Central), Tis Hazari Courts, Delhi
Suit no. 180/14 13/13 Smt. Kanta v. Sh. Anil Kumar & Ors.