Delhi District Court
Chaman Lal Anand vs Mr. Jyoti Anand on 12 November, 2021
1
IN THE COURT OF SH. PAWAN SINGH RAJAWAT ,
ADDITIONAL DISTRICT JUDGE- 08, (WEST DISTRICT),
TIS HAZARI COURTS, DELHI.
SUIT NO. :- 1300/2017
IN THE MATTER OF :-
CHAMAN LAL ANAND
S/O LATE SHRI SANT RAM
R/O H.NO. 7/157, RAMESH NAGAR,
NEW DELHI-110015. ....Plaintiff
VERSUS
1. MR. JYOTI ANAND
S/O SHRI CHAMAN LAL ANAND
R/O 5C-87, FIRST FLOOR,
NEW ROHTAK ROAD,
NEW DELHI-110005.
2. SMT. MAMTA SEHGAL
D/O SHRI CHAMAN LAL ANAND
R/O H.NO. 29-A, GALI NO. 08,
INDRA PARK, EAST DELHI,
GEETA COLONY, CHANDER NAGAR,
NEW DELHI-110051. ....Defendants
SUIT FOR DECLARATION, MANDATORY AND
PERMANENT INJUNCTIONS.
Date of institution of the Suit : 17.11.2017
Date of Judgment was reserved : 26.10.2021
Date of Judgment : 12.11.2021
Chaman Lal Anand Vs. Jyoti Anand
Page 1 of 29
2
::- J U D G E M E N T -::
1. This is a suit filed by the plaintiff claiming that the
suit property was purchased vide registered sale deed dt.
18.05.2011 in joint name with his wife Late Ms. Phoola
Rani Anand out of natural love and affection and entire
sale consideration was paid by him from his own funds
and therefore a declaration be passed that he is the sole and
exclusive owner of the suit property. The plaintiff is
seeking permanent and mandatory injunction against the
defendants.
2. It is averred that defendants after the demise of
plaintiff's wife on 20.11.2016 started harassing plaintiff
and constantly threatens him to encroach on his exclusive
ownership rights over the suit property claiming their
alleged respective shares through inheritability/succession.
The plaintiff is also seeking decree of permanent and
mandatory injunction restraining the defendants from
claiming any share by way of inheritance / succession in
the suit property.
3. The defendants were summoned vide order dated
17.11.2017 and after disposal of the application under
Order 7 Rule 11 CPC, the written statement was filed on
Chaman Lal Anand Vs. Jyoti Anand
Page 2 of 29
3
29.11.2018. Thereafter, on 27.01.2020, the following is the
admitted position between the parties :
(i) that the registered sale deed of the suit property is in
joint name of plaintiff and mother of all defendants.
(ii) that the suit property is in possession of plaintiff.
(iii) that the sale deed of suit property is also in
possession of plaintiff.
(iv) that all the parties are class-I legal heirs of deceased
wife of plaintiff.
4. Thereafter, from the pleadings of the parties, the
following issues were framed on 19.03.2021 and matter
adjourned for plaintiff's evidence:-
(1) Whether the plaintiff is entitled to relief of
declaration as prayed for? OPP
(2) Whether the plaintiff is entitled to decree of
permanent injunction, as prayed for? OPP
(3) Whether the plaintiff is entitled to decree of
mandatory injunction as prayed for? OPD
(4) Relief.
5. Plaintiff examined himself as PW1 by way of
affidavit Ex.PW-1/A. He also relied upon the documents
i.e. copy of Sale Deed Ex.PW-1/1 (Colly. OSR), death
certificate of Phoola Rani Anand as Ex.PW-1/2, Legal
Chaman Lal Anand Vs. Jyoti Anand
Page 3 of 29
4
notice dated 28.10.2017 (Colly.) as Ex.PW-1/3, reply dated
01.11.2017 (colly) as Ex.PW-1/4, copy of my Aadhar card
(OSR) as Ex.PW-1/5 and copy of PAN card as Ex.PW-1/6.
During cross examination, he admitted that in the sale deed
Ex.PW-1/1, his name alongwith name of his wife Smt.
Phoola Rani Anand are mentioned. He also admitted that
he has not filed any document to show that the entire sale
consideration of the suit property was paid by him and
without any contribution of any other person. He also
admitted that besides Ex.PW-1/1 there is no other title
paper pertaining to the suit property. He further admits
that Ex.PW-1/1 reflects that the sale consideration was
paid jointly by him and his wife. But he volunteered that it
was an arrangement made on the advice of his tax lawyer
to save higher stamp duty and his wife was homemaker
and was not earning anything. He admitted that he has not
given in writing anywhere that his wife is not the 50%
owner. He volunteered that it was never required at any
place or any point of time. He admitted that his wife has
never made any relinquishment deed / WILL in his favour.
6. Plaintiff also examined PW-2 Sh. Jitender Anand by
way of affidavit Ex.PW-2/A. During cross examination,
PW-2 denied the suggestion that the suit property has been
jointly purchased by his parents. He further denied that the
Chaman Lal Anand Vs. Jyoti Anand
Page 4 of 29
5
suit property has not been purchased by the entire sale
consideration of the plaintiff. He admitted that his mother
died intestate. He denied the suggestion that he has come
to depose at the behest of the plaintiff and is not
conversant with the true facts of the case. He admitted that
he has not filed any document on record to show as to who
paid the sale consideration of the suit property and to what
extent.
7. Plaintiff also examined PW-3 Sh. Bharat Bhushan
Mourya by way of affidavit Ex.PW-3/A. During cross
examination, he denied the suggestion that the suit
property has been jointly purchased by plaintiff and his
deceased wife. He further denied that the suit property has
not been purchased by the entire sale consideration of the
plaintiff. He admitted that Late Smt. Phoola Rani Anand
died intestate. He denied that he has come to depose at the
behest of the plaintiff and is not conversant with the true
facts of the case. He admitted that he has not filed any
document on record to show as to who paid the sale
consideration of the suit property and to what extent.
8. To prove that entire sale consideration was paid by
Plaintiff, Sh. Rakesh Kumar, Officer, Punjab National
Bank, Bank Street, Karol Bagh as PW-4 was examined.
Chaman Lal Anand Vs. Jyoti Anand
Page 5 of 29
6
He has brought and proved the statement of account of
A/C No. 0119000100207292 for the period from
04.04.2011 to 13.06.2011 which belongs to Plaintiff Sh.
Chaman Lal Anand as Ex.PW-4/1 and one letter address to
the Court verifying the details of cheques no. 760631,
760640 and 768311 and other particulars of the cheques as
Ex.PW-4/2. During cross examination, he admitted that he
is not aware of the facts of the present case. He also
admitted that he cannot state the source of these payments
or who has paid this money to the plaintiff.
9. No other witness was examined by Plaintiff and
therefore, the plaintiff evidence was closed and the matter
was posted for defence evidence.
10. In his defence, defendant no. 1 Sh. Jyoti Anand
examined himself as DW-1 by way of affidavit Ex.DW-
1/A. During cross examination, he stated that he cannot tell
the address of the suit property but volunteered that he
knows the location of the same. He denied the suggestion
that his mother had no income of her own but volunteered
that she used to stitch clothes and sell them when they
were small/minor. However, he admitted that she was a
homemaker. He further stated that he has not filed any
document to show that his mother had independent
Chaman Lal Anand Vs. Jyoti Anand
Page 6 of 29
7
income, that in the sale deed, his mother was 50% owner
of the suit property and that he cannot tell the exact sale
consideration amount but it was near about Rs.40 lacs to
45 lacs approximately. He denied the suggestion that the
entire sale consideration for purchasing the suit property
was paid by plaintiff. He stated that he cannot tell about
the sale consideration being paid by his mother to the
erstwhile owner. He volunteered that she paid her lifetime
savings alongwith her entire gold ornaments for purchase
of the suit property. He admitted that he has not filed on
record any document to show that his mother paid her
lifetime savings alongwith her entire gold ornaments for
purchase of suit property and the exact date and month of
selling the same by his mother but it was at the time of
purchase of suit property. He stated that he does not know
the name of erstwhile owner of the suit property.
11. Defendant No. 2 has not examined any witness and
therefore, defence evidence was closed and the matter was
posted for final arguments.
12. I have heard Ld. Counsel for both the parties. Ld.
Counsels for both the parties have filed written
submissions / arguments. I have also carefully perused the
record.
Chaman Lal Anand Vs. Jyoti Anand
Page 7 of 29
8
13. Ld. Counsel for Plaintiff argued that in view of
testimony of Plaintiff and other witnesses including the
bank witness, it is crystal clear that it is the plaintiff who
had paid the entire sale consideration towards the suit
property and hence, is entitled to a declaration that he is
the exclusive owner of the same. He also relied upon the
judgments in the matter of G. Mahalingappa Vs. G.M.
Savitha on 9 August, 2005 , Appeal (Civil) 2867 of 2000
passed by Hon'ble Supreme Court and Yogita Dasgupta
Vs. Kaustav Dasgupta on 27 July, 2016 MAT. APP
(F.C.) 7/2014 before Hon'ble High Court of Delhi. He also
relied upon the judgment in the matter of Jagan Singh
Gahlot Vs Raj Bala passed by Ld. ADJ, South West,
Dwarka Courts, on 16.05.2020. Ld. Counsel also submits
that since the entire payment was debited from the bank
account of plaintiff and defendant no.2 has not lead any
evidence and therefore, an adverse inference should be
drawn against her. He also submits that DW-1 in his cross
examination admitted that his mother was homemaker and
has not filed any document to show her independent
income. He also cited section 92 of Indian Evidence Act
and claims that all the documents of the plaintiff have been
duly proved in view of Section 110 Indian Evidence Act.
Chaman Lal Anand Vs. Jyoti Anand
Page 8 of 29
9
14. On the other hand, Ld. Counsel for defendants
argued that the short question for determination in this suit
is : "whether Late Smt. Phoola Rani Anand was the co-
owner of the suit property"? He argued that the suit
property was jointly purchased vide a registered sale deed
Ex.PW-1/1 in the name of plaintiff and his wife, Late Smt.
Phoola Rani Anand and after her intestate demise on
20.11.2016, her children became the co-owners of her
share in equal proportion as per Hindu Succession Act
being Class I Legal Heirs. It is further argued that the
property has been purchased jointly, sale consideration has
been paid jointly, title has been transferred to both the
vendees and not to the plaintiff only. It is further argued
that the sale deed is the only conclusive evidence to be
seen. He has further argued that no oral evidence or
submission which is inconsistent to the sale deed (Ex.PW-
1/1) is allowed and the theory of the plaintiff of paying the
entire sale consideration by himself and calling himself the
sole owner, that too, after the death of the joint owner, is
inconsistent with the terms of the sale deed. He has argued
that presuming but not admitting, that the plaintiff has paid
the entire sale consideration and made his wife Smt.
Phoola Rani Anand as 50% benami owner, this suit itself is
not maintainable and is liable to be dismissed outrightly.
He has further argued that the law of benami is so stringent
Chaman Lal Anand Vs. Jyoti Anand
Page 9 of 29
10
that it even prevents the person to sell the property
purchased as benami and the entire intention of the
legislation being making this act was to restrain a person
from tax evasion and in this matter the plaintiff has
admitted on oath as a witness before the court that he has
included his wife's name for tax evasion after consulting
his Accountant. He has further argued that the law makes
the transfer of title absolute and irrevocable when the same
is made as per the mandates of law and in this case the said
transfer has been made in favour of plaintiff and deceased
wife. He has further argued that the burden of proof was
on the plaintiff to prove that he had paid the entire sale
consideration but during his cross examination dated
09.09.2021 he specifically deposed "I have not filed any
document on file to show that the entire sale consideration
of the suit property was made by me and without any
contribution from any other person.", the plaintiff is bound
to fail in absence of any evidence in the light of above
deeming provision. He has further argued that in the event
of the parties concerned are not in a position to adduce
clinching and clear evidence of the exact share of their sale
consideration, the court has to hold that all the joint
purchasers are equally entitled to the share of the property.
He has further argued that once the property is vested with
a hindu female, it becomes her absolute property and
Chaman Lal Anand Vs. Jyoti Anand
Page 10 of 29
11
cannot be divested. He has further argued that the plaintiff
is blowing hot and cold in the same breath which shows
that his case is nothing but bundle of lies as in para 4 page
4 of the plaint he is saying "due to natural love and
affection towards his spouse, plaintiff got the sale deed
executed on his own and his spouse's named i.e. Chaman
Lal Anand and Phoola Rani Anand, respectively", while in
his cross examination dated 09.09.2021 on page 2, he is
stating "it is correct that the Ex.PW-1/1 reflects that sale
consideration was paid jointly by me and my wife. (Vol.
This was an arrangement made on the advice of our tax
lawyer to save higher stamp duty." Ld. Counsel for
defendants has relied upon the following Judgments :
(i) Kanwal Arora Vs. Prem Chand Khaneja (CS(OS)
2788/2011-Delhi High Court).
(ii) R. Ramanathan Vs. M. Arunkumar (A.S. No. 25 of
2009-Madras High Court).
(iii) Smt. Surasaibalini Debi Vs. Phanindra Mohan
Majumdar (1965 AIR 1364, 1965 SCR (1) 861-
Supreme Court of India.
(iv) Mrs. Dinesh Kumari Mishra Vs. Smt. Ranjana
Mishra (CS(OS) 187/2009-Delhi High Court).
(v) Bhavna Khanna Vs. Subir Tara Singh ((Cs O(S)
356/2016, IAS Nos. 8562/2016 (u/s 151 CPC) and
6676/2018 (u/o XIV R-5 CPC-Delhi High Court).
Chaman Lal Anand Vs. Jyoti Anand
Page 11 of 29
12
(vi) Ramesh Chander Gupta Vs. Kanta Gupta (R.S.A.
No. 66/2014-Delhi High Court).
15. My findings on the issues are as follows:-
Issue No. 1 : Whether the plaintiff is entitled to
relief of declaration as prayed for? OPP
In order to appreciate the averments of the parties
and the evidence led by them, it is imperative that
provisions of Hindu Succession Act dealing with intestate
succession alongwith provisions of Benami Transaction
(Prohibition Act), 1988 (as amended) and Transfer of
Property Act are to be looked into.
16. Section 45 of Transfer of Property Act deals with
joint transfer for consideration. It provides :
"An immovable property is transferred for consideration to 2 or
more persons and such consideration is paid out of a fund belonging
to them in common, they are, in the absence of a contract to the
contrary, respectively entitled to interests in such property identical,
as nearly as may be, with the interests to which they were
respectively entitled in the fund ; and , their such consideration is
paid out of separate funds belonging to them respectively, they are
in the absence of the contract to the contrary, respectively entitled to
interest in such property in proportion to the shares of the
consideration which they respectively advanced. In the absence of
evidence as to the interest in the fund to which they were
respectively entitled, or as to the shares which they respectively
advanced, such person shall be presumed to be equally interested in
the property."
Chaman Lal Anand Vs. Jyoti Anand
Page 12 of 29
13
17. The intention of legislature in incorporating Section
45 Transfer of Property Act is to ensure that the joint
ownership of immovable property will be governed by the
share provided by each of the co-owner towards its
purchase. In the present case, the plaintiff is claiming that
he paid all the sums of money towards the execution of
sale deed and has examined PW-4 the bank official Sh.
Rakesh Kumar who had proved the account statement of
A/c No. 0119000100207292 for the period from
04.04.2011 to 13.06.2011 pertaining to Sh. Chaman Lal
Anand as Ex.PW-4/1 and one letter addressed to this
Hon'ble Court verifying the details of cheques No.
760631, 760640 and 768311 and other particulars of the
cheques as Ex.PW-4/2. The said cheques also find mention
in the Sale Deed Ex.PW-1/1 being the mode of payment of
the sale consideration for the property in question. DW-1
Jyoti Anand stated that his mother was a homemaker and
used to stitch clothes and sell them. However, he had not
filed any document to show that his mother had
independent income and no evidence has been led that out
of said independent income, Late Smt. Phoola Rani Anand
has contributed / deposited any amount in the bank account
of plaintiff. The above evidence has evidently shown that
even though name of Phoola Rani is included in the Sale
Chaman Lal Anand Vs. Jyoti Anand
Page 13 of 29
14
Deed, but she has not contributed any share towards
purchase of the suit property.
18. Even though in terms of Section 15 and 16 of Hindu
Succession Act, the sons and daughters alongwith husband
of deceased Phoola Rani Anand are entitled to intestate
succession to her share in a property as she has not
executed any WILL, but in view of section 3 of Benami
Transaction Act, it is to be seen whether the suit property
was acquired jointly in her name for her benefit only.
19. The Benami Transaction (Prohibition) Act, 1988 has
been amended in 2016 and Section 4(3) of the 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
Chaman Lal Anand Vs. Jyoti Anand
Page 14 of 29
15
(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"
20. 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
Chaman Lal Anand Vs. Jyoti Anand
Page 15 of 29
16
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.
21. Hon'ble High Court of Delhi in the matter of 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 Chandrasekharan (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
Chaman Lal Anand Vs. Jyoti Anand
Page 16 of 29
17
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 retrospectivity 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."
22. 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.
23. From the above discussion it can be concluded that the Amended Act is not applicable retrospectively, and it is applicable w.e.f. 01.11.2016. The suit has been filed on 17.11.2017, therefore, what will govern the parties is the Amended Act. It is relevant to observe that under the Chaman Lal Anand Vs. Jyoti Anand Page 17 of 29 18 Benami Act, before amendments, the plaintiff was supposed to prove that he was the owner of the property and overcame the presumption cast by Section 3(2) with respect to purchase of the property inuring to his benefit, rather than to the benefit of his wife and under the Section 2(9) of the Amended Act the said rebuttable presumption has been dispensed with as has been observed in Mangathai (supra).
24. It may be noted that Hon'ble Supreme Court in P Leelavathi v. V. Shankaranarayana Rao, 2019 (6) SCALE 112 has laid down the principles governing the determination of the question whether a transaction is a Benami transaction or not which were reiterated by Hon'ble Supreme Court in Fair Communications & Consultants & Anr. v. Surendra Kerdile, in Civil Appeal no. 106/2010, wherein, it has been held that :
"20. In Valliammal (D.) by L.Rs v Subramaniam & Ors. (2004) 7 SCC 233, this Court held that the onus of establishing that a transaction is benami is upon one who asserts it:
"13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the Chaman Lal Anand Vs. Jyoti Anand Page 18 of 29 19 transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid and the following six circumstances which can be taken as a guide to determine the nature of the transaction :
(1) the source from which the purchase money came ; (2) the nature and possession of the property, after the purchase ;
(3) motive, if any, for giving the transaction a benami colour ;
(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar ; (5) the custody of the title deeds after the sale ; (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra1, SCC p 7, para 6).
25. It was further observed that the above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. It is well settled that intention of the parties is the essence of the benami transaction and the money must have been Chaman Lal Anand Vs. Jyoti Anand Page 19 of 29 20 provided by the party invoking the doctrine of benami. These observations were reiterated in Binapani Paul vs. Pratima Ghosh & Ors. 2007 (6) SCC 100."
26. It may be noted that in Yogita Dasgupta v. Kaustav Dasgupta, judgment passed in MAT Appeal (FC) 07/2014 and relied by plaintiff the Hon'ble High Court of Delhi has observed as under :
Here it would be important to recognize that a plain interpretation of Section 3 would be firstly, that benami transactions are barred; the exception would be, inter alia, where the husband acquires the property in the wife's name. Secondly, this exception has an attendant presumption that the property had been purchased for the wife's benefit. However, the presumption is rebuttable, as the contrary (i.e. that the property was not for the benefit or the wife, or was for the benefit of another or others) can be proved. What is the net result if the contrary is proved? Would the property then be treated as benami and suffer the bar under Section 4? We think not. The structure of Section 3 is such that two categories of what would otherwise be benami acquisitions are kept out from its sweep purchase in the name of wife, and purchase in the name of unmarried daughter. It would indeed be anomalous if it were held that Parliament intended that in case the husband did not prove that the property was for the benefit of someone not the wife, it would be hers and at the same time, also intended that in case he did prove that it was for someone else's benefit, he would be unable to secure a decree as he would be remediless because of Section 4. The correct interpretation would be, in our opinion that the class of transactions covered by Section 3 is treated as a class apart. It is only the inter se rights of the disputing parties, which is dependent upon the party asserting that the acquisition was not for the benefit of the wife/daughter, proving it to be so."
Chaman Lal Anand Vs. Jyoti Anand Page 20 of 29 21
27. In light of above said principles of law, the facts of the present case are to be appreciated. It may be noted that from the testimony of PW1 it is clear that the entire sale consideration for the purchase of suit property was paid by plaintiff/PW1 in as much as the sale deed Ex. PW1/1 contained the following recitals so far as payment of sale consideration to the vendor which are as under:
i) Rs.24,00,000/- vide Cheque No.760631, dated 4.4.2011,
ii) Rs.5,00,000/- vide Cheque No.760640, dated 12.5.2011,
iii) Rs.15,00,000/- vide Cheque No.768311, dated 13.5.2011, all drawn on Punjab National Bank, Bank Street, Karol Bagh, New Delhi-110005.
28. The cheques were issued by the plaintiff and got encashed by the vendor of the sale deed Ex. PW1/1 as reflected in bank statement Ex. PW4/1 and the certification issued by the Senior Manager of the bank Ex.PW-4/2 which mentions that the above cheques were drawn on the account no. 0119000100207292 of Chaman Lal Anand. The above documents have not been controverted by the defendants.
Chaman Lal Anand Vs. Jyoti Anand Page 21 of 29 22
29. In the present case the existence of the property is in the name of mother of defendants and of wife of plaintiff will fall as an Exception to the prohibited benami transaction in view of Section 2(9)(A)(b) Exception (iii) of Benami Act inasmuch as it is legally permissible for a person to purchase an immovable property in the name of his spouse/child from his known sources, and in which position, the property purchased will not be a benami property but the property will be of the de jure owner/plaintiff and not of the de facto owner (in whose name title deeds exist), being wife of plaintiff and mother of defendants. This is more apparent in view of the fact that Sale Deed was in joint name of plaintiff and his wife.
30. It was the defence of defendants that plaintiff had failed to allege that the suit property though was purchased in joint name of Plaintiff and Phoola Rani Anand but was not for her benefit alone and further the property was acquired her as per Section 14 of Hindu Succession Act, and therefore, suit property vested in her as an absolute owner, hence the suit is not maintainable.
Chaman Lal Anand Vs. Jyoti Anand Page 22 of 29 23
31. Hon'ble High Court of Delhi in the matter of Hemant Satti vs Mohan Satti & Ors decided on in CS(OS) 824 of 2010 after referring to the ration of in Gangamma v. G. Nagarathnamma CIVIL APPEAL NO.4126-4127 OF 2009 has held that:
Section 14(1) Hindu Succession Act contemplates that a female Hindu becomes the full owner of a property that comes into her possession and she has also all the powers of disposition of such property. The said decision reiterated what was explained in an earlier decision in Punithavalli Ammal v. Minor Ramalingam (1970) 1 SCC 570 that the rights conferred under Section 14(1) HSA are not restricted or limited by any rule of Hindu law. It further held :
15. The effect of Section 3(2) read with Section 4(2) of the BTA was considered in Nand Kishore Mehra v. Sushila Mehra. It was clarified by the Supreme Court as under (SCC @ p. 575-76):
"6........it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit."
16. The collective reading of both provisions makes the following position clear:
(i) The right under Section 14(1) HSA accruing to a Hindu female in respect of the property in her possession is absolute and untrammelled. It includes property that comes to her through acquisition or "in any other manner whatsoever", and not limited to purchase of the property.
Chaman Lal Anand Vs. Jyoti Anand Page 23 of 29 24 She is free to deal with the property in any manner which she pleases.
(ii) The position under Section 3(2) BTA can be harmonised with Section 14 HSA. Section 3(2) BTA does not dilute the right of a Hindu female to her property under Section 14(1) HSA. It is only where it is able to be proved under Section 3(2) BTA that the property purchased by the husband of the Hindu female in her name was not for her benefit, could a challenge to her absolute right thereto be entertained.
(iii) However, in order to prove such a defence, it has to be pleaded, in the first place.
32. The reliance of defendant on judgment in the matter of Kanwal Arora(supra) is misplaced as in that case, the defendant claims that he paid the entire sum of consideration on the promise of plaintiff to reimburse him of his portion of sale consideration on a later date. The decision in Dinesh Kumari Mishra (supra) and in Kanwal Arora (supra) was passed before the coming into force of the amended Act of Benami Transaction (Prohibition Act) 1988 which has carved out exception to the General Rule of benami transaction. Moreover, the judgment in the matter of Bhawna Khanna (supra) dealt with sale deed dated 16.12.2003 and in view of the above discussion regarding the applicability of Old Act Vs. Amended Act, the decision have no bearing to the facts of the present case. Similarly, the judgment of R.Ramnathan (supra) is also not applicable as the provisions of Benami Act Chaman Lal Anand Vs. Jyoti Anand Page 24 of 29 25 overrides the provisions of Transfer of Property Act. The judgment of Ramesh Chander Gupta though dealt with the property being jointly purchased but the relationship of parties is of sister-in-law and brother-in-law and in the said case there was an averment that the name of defendant Kanta Gupta was added being elder sister-in-law which shows that it was done only out of respect. Moreover, the said case dealt with doctrine of adverse possession and case was held to be barred by provisions of Benami Act (Old Act) as the judgment was passed on 20.02.2015.
33. The plaintiff in his replication denied that the Phoola Rani Anand i.e, his wife had become absolute owner of the suit property. The stand of the plaintiff is all along being that the name of his wife was included in the sale deed out of love and affection only and he had no intention to confer ownership rights upon her. Admittedly, Smt. Phoola Rani Anand had not executed any testamentary declaration in favour of any of her LRs including the plaintiff, which shows that she has no misgiving that she is a co-owner of the suit property. It is not the case of defendants that suit property was exclusively for benefit of their mother. It is also not in dispute that plaintiff is having the title deeds and is in possession of the suit property. It is not the case Chaman Lal Anand Vs. Jyoti Anand Page 25 of 29 26 of defendants that during her lifetime, Phoola Rani Anand had a any point assert her ownership rights.
34. It may be relevant to note here that even if the plaintiff has been able to establish that the suit property was purchased for himself though in joint name with his wife, the defendants could have still succeeding in defeating the ownership claim of the plaintiff, if they could have establish that the suit property was purchased for benefit of their mother Phoola Rani Anand. The conduct of the parties also did not establish that the suit property has been purchased by the plaintiff for the benefit of his wife only as it was purchased in joint name. The plaintiff has, therefore, been able to successfully establish from the nature of the transaction and the surrounding circumstances that he is the actual owner of the suit property and claim of plaintiff to the suit property is not a claim based upon a benami transaction and such transaction falls in the exemption (iii) of the Amended Act. The present case thus is not that of a "benami transaction"
and hence bar of Section 4 of the Act is not attracted in the present case.
Chaman Lal Anand Vs. Jyoti Anand Page 26 of 29 27
35. It is common knowledge that nowadays persons get the sale deeds of immovable property executed in name of female members of their families including wife, sister, daughter and daughter- in-law to take benefit of lower stamp duty charges. The intention of parties as gathered from the circumstances shows that the sale deed of the suit property was done jointly by plaintiff in the name of his wife in order to take such benefit of lower stamp duty charges.
36. It has come of record that the source of money for purchase of suit property came entirely from plaintiff. The property is a residential one and is being used and occupied by the plaintiff. The motive, of joint registration is apparently to save some money on stamp duty. The Plaintiff is husband of Late Phoola Rani Anand and the custody of the title deeds is with him only. After the purchase the property is being used for residential purposes of the family and it is not the case of defendants that it was rented out by their mother to any other person and she was receiving any sum of money from it. The defendants have failed to bring any evidence that during her lifetime, Phoola Rani Anand had asserted her share in the suit property. Hence Issue No. 1 is decided in favour of plaintiff and against the defendants as he has discharged Chaman Lal Anand Vs. Jyoti Anand Page 27 of 29 28 the burden of proof and defendants have failed to bring any evidence to the contrary.
37. In view of the above findings, the Issue no. 1 goes in favour of the plaintiff in as much as the transaction in question whereby the suit property was purchased in joint name of Plaintiff and his wife cannot be termed as Benami owner of the Property under the Amended Act, nor the provision of the Hindu Succession Act and also of the Transfer of Property Act are found to be in favour of defendants and therefore, not applicable to the facts of the present case and plaintiff is found to be entitled to the suit property as being not a benami property in joint name of plaintiff and his wife (now deceased).
38. Issue no. 2 and 3 also goes in favour of the plaintiff in view of the findings given in respect of issue no. 1.
RELIEF
39. Hence, in view thereof, the suit of the plaintiff is "decreed" as follows :
(a)Decree of declaration is passed in favour of the plaintiff declaring the plaintiff Chaman Lal Anand as the actual owner of the suit property bearing no. 7/157, Ramesh Chaman Lal Anand Vs. Jyoti Anand Page 28 of 29 29 Nagar, New Delhi-110015 which was registered vide Sale Deed dated 18th May 2011 executed on E-stamp No. IN-
DL-04996161723033J registered as document no. 11,171 in Book No. 1, Vol. No. 18,703 on page no. 102 to 109 and defendants namely Jyoti Anand and Mamta Sehgal have no right, title, claim or interest in any manner in respect of the suit property.
(b) Decree of permanent injunction is passed in favour of the plaintiff thereby restraining the defendants to not to claim any share by way of inheritence/succession in suit property on the basis of Sale Deed dt. 18.05.2011.
(c) Decree of mandatory injunction is passed in favour of the plaintiff thereby directing the defendants from making any atttempt to disturb the peaceful possession and enjoyment of the suit property by the plaintiff.
(d) Plaintiffs is also entitled to cost.
40. Decree sheet be prepared accordingly and file be consigned to record room.
Announced in the Open Court on 12th November 2021.
(PAWAN SINGH RAJAWAT) ADJ-08 (West) Tis Hazari Courts, Delhi Chaman Lal Anand Vs. Jyoti Anand Page 29 of 29