Delhi District Court
Shiv Narain Sharma vs Chanda Devi Sharma on 28 January, 2025
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
RCA No. 47659/2015
CNR No. DLNE01-000865-2015
Shiv Narain Sharma
(Through legal representatives)
1(i) Kusum Lata
W/o Late Shiv Narayan Sharma
1(ii) Hari Narayan Sharma
S/o Shiv Narayan Sharma
1(iii) Ms. Laxmi
W/o Sh. Santosh Sharma
R/o E-49, A-106, Welcome Market,
Janta Majdoor Colony, Phase-3rd,,
Seelam Pur, North-West, Delhi.
1(iv) Neetu
W/o Sh. Vinod Kumar
R/o 666 D/17, Jeel Khuranja, Geeta Colony,
Gandhi Nagar, East Delhi.
1(v) Babita
W/o Sh. Kapil Sharma
R/o X-2/12, Gali No. 7, X-Block,
Braham Puri, Garhi Mendu,
North-East, Delhi.
1(vi) Chanchal Sharma
W/o Sh. Deepak Sharma
R/o C-129, Gali No. 4/5, Band Gali,
Ganga Vihar, Gokal Pur,
North-East, Delhi. ...Appellants
Versus
RCA No. 47659/2015 Page No. 1 of 23
Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
Chanda Devi
(Through legal representatives)
1(a). Sh. Vishanu Dutt Sharma
(Through legal representatives)
1(a.i) Shorabh Sharma
1(a.ii) Deepa Sharma
W/o Sh. Rinku Sharma
1(a.iii) Kavita
W/o Sh. Sheel Ji.
All residents of H.No. 15/23, Gali No. 4,
Shivaji Marg, East Babar Pur,
Shahadra, Delhi.
1 (b). Kamla
W/o Sh. Lalta Prashad Sharma
D/o Sh. Ram Sharan Sharma
R/o 5/18, Mahabir Gunj Pradhan,
Police Station Kotwali, Farrukhabad.
2. Satya Dev Sharma
Late Ram Sharan Sharma
R/o J-101/11, Gali No. 2,
IVth-Pushta, Kartar Nagar,
Delhi. ....Respondents
Date of filing of the present appeal : 15.07.2015
Date of completion of Final Arguments : 28.01.2025
Date of judgment : 28.01.2025
Final Decision : Dismissed
JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant (plaintiff, before, the Learned Trial Court) against, the impugned judgment and decree, dated 06.05.2015, titled as Sh. Shiv Narain Sharma vs. Smt. Chanda Devi Sharma & Another in Civil Suit number 403/2007. The suit RCA No. 47659/2015 Page No. 2 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. of the appellant was dismissed by the Court of the then Learned ACJ/ARC/CCJ (North East), Karkardooma Courts, Delhi. Thereafter, the present appeal.
2. For the sake of convenience, parties shall be denoted as they were before Learned Trial Court. Appellant, herein, Sh. Shiv Narain Sharma (Through legal representatives that is (i) Kusum Lata, (ii) Hari Narayan Sharma, (iii) Ms. Laxmi, (iv) Neetu (v) Babita and (vi) Chanchal Sharma) as plaintiff and respondents Sh. Chanda Devi Sharma {through legal representatives that is (i) Sh. Vishanu Dutt Sharma (through legal representatives that is (a.i) Shorabh Sharma, (a.ii) Deepa Sharma, (a.iii) Kavita), Kamla and Sarya Dev Sharma shall be referred to as defendants. It is pertinent to mention here that the initially the present appeal has been preferred by the plaintiff/appellant Sh. Shiv Narain Sharma only.
Plaint
3. The brief facts as disclosed in the plaint are that the plaintiff/appellant is the son of defendant/respondent number 1. It is stated that the defendant/respondent alongwith her other two sons namely, Shri Vishnu Dutt Sharma and Shri Satya Dev Sharma (defendant/respondent number 2) used to live at her native village Budnamau, District Farukhabad, Uttar Pradesh. It is further stated that in the year about 1977- 78, plaintiff/appellant who used to work in Delhi, since the year 1972, brought the defendant/respondent number 1, alongwith his two brothers. It is further stated that at that time, brother of plaintiff/appellant, Sh. Vishnu Dutt Sharma, was learning the work of electrician and Sh. Satya Dev Sharma was a student. It is further stated that on 03.01.1979, plaintiff/appellant had purchased a piece of land measuring 107 square RCA No. 47659/2015 Page No. 3 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. yards, out of Khasra number 142, 143 situated at Village Ghonda Gujran Khadar, Illaqa Shahdara, Delhi (now numbered as J-101/11, Gali number 2, IVth Pushta, Kartar Nagar, Delhi) in the name of his mother that is defendant/respondent number 1 from one Shri Ram Pal son of Shri Harkesh. It is further stated that the defendant/respondent number 1 used to be a housewife through out her life and she never earned any money. It is further stated that after the purchase of the abovesaid property, plaintiff/appellant had raised construction at different points of time and now it is double storey building. It is further stated that seven to eight years ago nalah nearby the house was converted by the authorities into a pucca construction. At the time of converting of nallah, some of the land of the aforesaid plot/premises was taken by the government hence, suit premises is now of the size mentioned in the site plan. It is further stated that because of the increase in price of the property in Delhi defendant/respondent number 1 had become dishonest and she wanted to bequeath the same in favour of defendant/respondent number 2.
It is further stated that on 05.06.2007, plaintiff/appellant had requested his mother to execute the title documents of his share in the abovesaid property in his favour as there was scarcity of water supply in the house and the plaintiff/appellant wanted to get sanction another connection in the premises. Hearing the aforesaid request, defendant/respondent number 2, became angry and he tried to indulge in a brawl with the plaintiff/appellant. It is further stated that as mentioned above, the plaintiff/appellant had purchased the abovesaid property/plot with his earnings, the construction was also raised by the plaintiff/appellant time to time as per the necessity/requirement of family hence, the actual owner of the aforesaid property is the plaintiff/appellant instead of defendant/respondent number 1. It is further stated that now the RCA No. 47659/2015 Page No. 4 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. defendants/respondents in collusion with one another and with the malafide intention to deprive the plaintiff/appellant from his legitimate right tried to dispossess the plaintiff/appellant. It is further stated that the defendants/respondents do not have any right, title or interest in the suit premises except that they are living in the property as licensee. It is further stated that on 11.07.2007, when, the request was again made by the plaintiff/appellant for transfer of the title documents in his name and for vacating the suit premises, defendant/respondent number 2 threatened to dispose of the same in favour of any third person. It is further stated that on 12.07.2007, in the noon time, defendant/respondent number 2, came with one of the property dealers and showed the suit premises to him. It is therefore, requested in the plaint, that the decree of declaration alongwith decree of permanent injunction be passed.
Written statement
4. Defendants/respondents had contested the suit by filing their common written statement in which apart from denying contentions raised by the respondent/plaintiff in his plaint, it is stated that the plaintiff/appellant neither had any right, title or interest nor he was concerned with the property in question as the same was the self acquired property of defendant/respondent number 1. It is further stated that for the purchase of property, defendant/respondent number 1 had invested her past savings from the household affairs and had also disposed some of her jewellery in order to have a roof over the heads of the family members somewhere, in the year 1979. It is further stated that even otherwise present suit is barred under the provisions of section 4 of the Benami Transaction Act, as the plaintiff, was neither the coparcener nor the co- sharer in the suit premises and defendant/respondent number 1 had RCA No. 47659/2015 Page No. 5 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. absolute right, title or interest. It is stated that with the passage of time as the value of the property had increased manifolds, the intention of plaintiff/appellant had become dishonest. It is further stated that since, the date of purchase of property, by defendant/respondent number 1, in the year 1979, she had been residing therein, alongwith her family members and it is she who had raised the construction over the suit premises. It is further stated that plaintiff/appellant kept on torturing and forcing the defendant/respondent number 1 to execute the sale documents in respect of suit premises in his favour. It is further stated that on 05.06.2007, when plaintiff/appellant had crossed all the limits in harassing and humiliating the defendant/respondent number 1, defendant/respondent number 1 was left with no other alternative except to summon the local police who took necessary legal action in the matter. It is further stated that the plaintiff/appellant has no cause of action to file the present suit. It is therefore requested that the suit of plaintiff/appellant be dismissed.
Replication
5. Despite opportunities having being granted to the plaintiff/appellant, no replication to the written statement of defendants/respondents was filed.
Issues
6. Learned Trial Court vide order dated 14.03.2011 framed the following issues to dispose of the suit of plaintiff/appellant.
(i) Whether this suit is barred under section 4 of the Benami Transaction Act? OPD.
(ii) Whether plaintiff is entitled for decree for declaration as claimed?OPP
(iii) Whether plaintiff is entitled for decree of permanent RCA No. 47659/2015 Page No. 6 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
injunction as claimed? OPP
(iv) Relief .
Evidence of plaintiff/appellant
7. Thereafter, plaintiff/appellant has led his piece of evidence. Plaintiff/appellant Sh. Shiv Narain Sharma has got examined himself as PW1. He reiterated the facts as are mentioned by him in his plaint. Thereafter, he tendered his evidence by way of affidavit which is Ex.PW1/A and relied upon the following documents that are copy of site plan as Ex.PW1/1 and copy of General Power of Attorney, dated 03.01.1979 as Mark A. PW1 was cross examined at length by Learned counsel for defendants/respondents. During the course of his cross examination, PW1 submitted that in the year 1972, he used to get rupees 200/- per month as a salary.
Sh. Lalta Parshad was examined as PW2. PW2 in his examination in chief deposed that he is son-in-law of defendant/respondent number 1 and brother-in-law of defendant/respondent number 2. PW2 further deposed that in the year 1972, plaintiff/appellant came to Delhi and he was an employee in a ammonia compressor factory. After about 5-6 years, plaintiff/appellant had brought his mother alongwith his two younger brothers to Delhi. PW2 further deposed that the plaintiff/appellant had purchased a piece of land measuring 107 square yard at Village Ghonda Gujran Khadar, Illaqa Shahdara, Delhi in the name of his mother that is defendant/respondent number 1 on which plaintiff/appellant raised construction as per requirements and capacity. Thereafter, PW2 tendered his evidence by way of affidavit which is Ex.PW2/1. PW2 was cross examined at length by Learned Counsel for defendants/respondents. During the course of his cross examination, PW2 denied the suggestions RCA No. 47659/2015 Page No. 7 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. put to him by Learned counsel for defendants/respondents that alongwith plaintiff/appellant, his mother and younger brother also came to Delhi. PW2 further submitted that the sale deed was not executed in his presence.
Defendant's/respondent's evidence
8. After completion of plaintiff's/appellant's evidence, defendant/respondent had led her piece of evidence. Defendant/respondent 1 Smt. Chanda Devi herself stepped into the witness box as DW1. In her evidence, she reiterated the same facts as are mentioned by her in her written statement which are not repeated herein. She tendered her evidence by way of affidavit which is Ex.D1 and relied upon the following documents that are General Power of Attorney, agreement to sell and receipt, all dated 03.01.1979 as Ex.DW1/1 (colly). DW1 was cross examined at length by Learned Counsel for plaintiff/appellant. During the course of her cross examination, DW1 denied the suggestion put to her by Learned counsel for plaintiff/appellant that plaintiff/appellant alone came to Delhi for work. DW1 voluntarily submitted that plaintiff/appellant alongwith DW1 and her sons came to Delhi together.
Defendant/respondent number 2 Sh. Satya Dev Sharma was examined as DW2. DW2 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.D2 and relied upon documents that are General Power of Attorney, agreement to sell and receipt, all dated 03.01.1979 already exhibited as Ex.DW1/1 (colly) in the testimony of DW1. DW2 was cross examined at length by Learned counsel for plaintiff/appellant.
Finding of Learned Trial Court
9. After, hearing the final arguments, Learned Trial Court had observed RCA No. 47659/2015 Page No. 8 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. that Hon'ble Supreme Court in Mithlesh Kumari & Anr. v. Prem Behari Khare, Recent Revenue Reports 1989 Vol. 1 Page 255, decided on 15.12.1988 clarified that the aspect of the benami transaction would apply even to those transactions which were carried out before the enforcement of the Act, if otherwise the said transaction qualifies as a benami transaction. Learned Trial Court had further observed that though the plaintiff/appellant had relied upon the judgment of Marcel Martins v. M. Printer & Ors, AIR 2012 SC 1987, but, the same does not apply to the present facts and circumstances as the property in question in the aforesaid judgment was taken on rent by the mother of parties and the landlord corporation decided to sell the same to the tenant that is the mother. It was the policy of the corporation that the property was not to be sold to more than one person. Thus, despite the proof of making the contribution by all the legal heirs of the deceased tenant, the property was allotted in the name of one of the legal heirs. Learned Trial Court had thus summed up after taking into consideration all the legal considerations that the alleged transaction at hand is benami transaction and thus is not enforceable in accordance with law in light of section 2 (a) of the Benami Transactions Act. Therefore, Learned Trial Court had pleased to dismiss the suit of plaintiff/appellant.
Grounds of appeal
10. Later on, the plaintiff/appellant aggrieved by the aforementioned decision preferred this appeal in which once again, he has reiterated the contents of plaint. Alongwith this, it is stated that the impugned order, is passed on erroneous premises in an arbitrary and whimsical manner based on surmise and conjectures. It is stated that the Learned Trial Court, had not considered the paragraph number 3 of Section 4 of the Benami RCA No. 47659/2015 Page No. 9 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. Transaction Act, where the property was purchased in the name of coparcener or the persons in whose name the property was purchased was in the fiduciary relationship with the person purchasing property 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. It is stated that undoubtedly plaintiff/appellant was the only earning member at the time of purchase of property and just out of respect of his mother he had purchased the property in her name. It is further stated that at that time neither the defendant/respondent number 2 was earning nor another son of defendant/respondent number 1 and that they both were minors at that time. It is further stated that had Learned Trial Court discussed/understood the legal position of clause 3 of section 4 of Benami Transaction Act, then it would not be inclined to pass the impugned judgment and decree. The transaction for purchasing the suit premises in the name of mother by the son is not a benami transaction, hence, applicability of the Act beyond enactment of the same does not arise.
It is further stated that the Learned Trial Court had wrongly considered the aforesaid transaction of purchasing the suit premises in the name of mother by son as benami transaction. It is further stated that the property was purchased in the name of mother of the parties and said transaction was not treated by the Hon'ble Supreme Court as benami transaction. Similarly, in the present suit, the suit premises was purchased by the plaintiff/appellant in the name of his mother and if the Hon'ble Court considers the same, the transaction of purchasing the suit premises in the name of his mother is also not benami transaction. It is further stated that present appeal is being filed by the plaintiff/appellant before this Hon'ble Court within limitation of 30 days as the judgment was pronounced, on 06.05.2015, and from next day summer vacation started RCA No. 47659/2015 Page No. 10 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. which remains upto 28.06.2015 and on 29.06.2015, plaintiff/appellant had applied the certified copy of judgment which was provided by the Copying Agency, on 03.07.2015. Thereafter, arrangement of court fee was made and appeal was drafted. The same thus filed before this Hon'ble Court, on 14.07.2015, as during the course of vacation limitation for filing the civil and criminal cases were suspended as per law. It is therefore, requested that the judgment and decree, dated 06.05.2015, passed by the Court of the then Learned ACJ-cum-ARC-cum-CCJ (North-East), Karkardooma Courts, Delhi in suit bearinig number 403/2007 titled as Shri Shiv Narain Sharma Vs. Smt. Chanda Devi Sharma and Anr. be set aside.
Reply of appeal
11. Reply to the appeal has also been filed on behalf of defendants/respondents in which apart from denying the allegations of the plaintiff/appellant, it is stated that that the plaintiff/appellant had unnecessarily dragged his mother that is defendant/respondent number 1 in this false case. It is further stated that the plaintiff/appellant wanted to grab the house of defendant/respondent number 1. It is further stated that the order passed by the Learned Trial Court was a reasoned order, wherein, the Learned Trial Court, had discussed the relevant provisions of law with the help of landmark judgment of Hon'ble Apex Court titled as Mithlesh Kumari & Ors. v. Prem Behari Khare, therein, it is clear preposition of law that benami property real owner is not entitled to recover benami property under section 4. This section takes into sweep all past benami transactions irrespective of the fact when those were created. It is further stated that when a property is purchased in the name of female member even though there is sufficient nucleus the presumption that said property is joint family property does not arise. It is also stated that the plea of appellant that the RCA No. 47659/2015 Page No. 11 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. property was benami in the name of respondent is not tenable as section 4 of the Act clearly barred any such right/defence. It is further stated that the suit which was filed by the appellant was barred by the various provisions of Benami Transaction Act and the appellant through concealing the material facts was trying to get benefit of his own wrong. It is further stated that from the plain reading of entire appeal it is crystal clear that the appellant has failed to raise even a single ground which could be considered at this stage. It is further stated that the suit premises was purchased by the defendant/respondent number 1 with her own funds by selling her ornaments and other stridhan on 03.01.1979, from Sh. Rampal. It is further stated that the suit premises was constructed by the defendant/respondent number 1 with her own funds. It is further stated that the plaintiff/appellant wanted to grab the suit property from his mother forcibly and illegally. It is further stated that the plaintiff/appellant had failed to place on record any single ownership documents of property in question in his favour hence, the Learned Trial Court had rightly dismissed the suit of plaintiff/appellant. It is further stated that the Learned Trial Court was absolutely right in considering the aforesaid transaction as benami and that there is no infirmity in the judgment. It is therefore requested that the appeal of appellant/plaintiff be dismissed. Learned counsel for respondents have further relied upon the judgments titled as Ashok Sardana v. Dropadi Devi & Ors. and Vijay Kumar & Ors. v. Dharmpal.
Arguments
12. I have heard the arguments from both sides on the grounds of appeals in detail and perused the impugned judgment as well as evidence adduced by both parties including the written submissions. Learned RCA No. 47659/2015 Page No. 12 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. Counsel for plaintiff/appellant had relied upon the following judgments titled as Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter College & Ors, (1987) 2 SCC 555, Jagannathan Pillai v. Kunjithapadam Pillai & Ors, Civil Appeal No. 1196/1973, decided on 21.04.1987 and Adesh Kanwarjit Singh Brar v. Ms. Babli Brar & Ors., AIR 2011 Delhi 187. All these judgments have been perused very carefully vis-a-vis to the facts of the present case. They do not apply to the present facts and circumstances.
Written submissions on behalf of plaintiff/appellant In the written submissions filed on behalf of plaintiff/appellant, he has reiterated the contents of plaint, written statement and grounds of appeal. Apart from this, it is stated that defendants/respondents had filed written statement claiming defendant/respondent number 1 (mother of plaintiff/appellant and defendant/respondent number 2) as owner of the suit premises. It is stated that defendants/respondents had denied the averments of plaintiff/appellant that defendants/respondents were not financially sound enough to purchase the property at that time instead they are dependent upon the plaintiff/appellant, but, they failed to file any relevant evidence in that regard. It is further stated that the Learned Trial Court had not considered the right legal position of clause 3 section 4 of Benami Transaction Act properly. It is stated that the transaction for purchasing the suit premises in the name of mother by the son is not a benami transaction, hence, applicability of the Act beyond enactment of the same does not arise. It is further stated that the Learned Trial Court had not considered the law point submitted by the plaintiff/appellant properly. It is further stated that present appeal is being filed by the plaintiff/appellant before this Hon'ble Court within limitation period as during the course of vacation limitation for filing the civil and criminal cases were suspended as per law. It is further stated that in case titled as RCA No. 47659/2015 Page No. 13 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. Adesh Kanwarjit Singh v. M/s. Babli Brar & Ors, AIR 2011, Delhi 187, Hon'ble High Court of Delhi had observed that the father acquiring property in his name acts in a fiduciary capacity and suit is not barred by section 4 of Benami Transaction Act and similarly in the present suit, mother and son, both are in fiduciary capacity, consequently suit is not barred by section 4 of the same Act. It is further stated that without prejudice to the above submissions, it is an admitted fact that the plaintiff/appellant had got constructed part of premises from his own funds and as per section 60(b) Easement Act, he could not be dispossessed from the same now. Learned counsel for plaintiff/appellant had apart from the abovesaid other judgments also relied upon Marcel Martins v. M. Printer & Ors, AIR 2012 SC 1987. Doubtless, this judgment can be well differentiated from the present facts and circumstances as apart from other facts in that case corporation was the landlord which wanted to give the property to the tenant after receiving the relevant consideration amount, the movement of consideration from father and other legal heirs was proved. Here, despite opportunities given plaintiff/appellant has miserably failed to lead any evidence with respect to the alleged movement of consideration on his part qua the suit premises.
Written submissions on behalf of defendant/respondent number 2 On the other hand, in the written submissions filed on behalf of respondent/defendant number 2, it is stated that the order/judgment passed by the Learned Trial Court is a reasoned order wherein, the Learned Trial Court had discussed the relevant provisions of law. The Learned Trial Court had rightly considered the aforesaid transaction of purchasing the suit premises as benami transaction hence, there is no infirmity in the impugned judgment/decree, dated 06.05.2015. It is further stated that the appeal is time barred as the judgment was pronounced, on 06.05.2015, RCA No. 47659/2015 Page No. 14 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. while, appeal filed, on 14.07.2015. It is further stated that it is clear preposition of law that in case of benami property real owner is not entitled to recover as per section 4 of the relevant Act. This section takes into sweep all past benami transactions irrespective of the fact when those were created. It is further stated that when a property is purchased in the name of female member even though there is sufficient nucleus the presumption that said property is joint family does not arise-such a presumption would be available in case of male member of the family but not female. It is further stated that it was alleged by the plaintiff/appellant that the property was purchased by him in the name of defendant/respondent 1 and thus the property in question was benami in the name of defendant/respondent numb 1 and he continued to be the real owner of same is not tenable as the Benami Transaction Act had been made applicable with retrospective effect. It is further stated that the section 4 of Act clearly barred any such defence, hence, the appeal filed by the plaintiff/appellant has no substance and is liable to be dismissed. Thereafter, Learned counsel for defendant/respondent number 2 has filed judgments titled as Mithlesh Kumari & Anr. v. Prem Behari Khare, Civil Appeal No. 2311/1978, decided on 15.12.1988, Ashok Sardana v. Dropadi Devi & Ors., CS (OS) No. 2515/1991, decided on 15.10.2012. These judgments have been perused very carefully.
Written submissions on behalf of defendant/respondent number 3(1) Written submissions have also been filed on behalf of defendant/respondent number 3(1) in which apart from negating the contentions of appeal, it is stated that the present appeal is without merit and is only an abuse of the process of law. It is stated that the plaintiff/appellant had concealed the material facts regarding the suit premises and wants to grab the whole property by his own wrongs. It is RCA No. 47659/2015 Page No. 15 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. further stated that the impugned judgment and decree passed by the Learned Trial Court has no infirmity. It is further stated that the suit premises was purchased by Late Chanda Devi Sharma with her own funds as well as the maximum help of the funds provided by her both elder sons, namely, Late Shiv Narain Sharma and Late Vishnu Dutt Sharma. It is further stated that the plaintiff/appellant and his brother Late Vishnu Dutt Sharma, employed in Delhi since 1972 and Late Chanda Devi Sharma was residing with her younger son Satya Dev Sharma (who was student at that time) at their native place village in Uttar Pradesh. It is further stated that the suit premises was constructed in the year 1980 with the joint funds of Late Chanda Devi Sharma, Late Shiv Narain Sharma and Late Vishnu Dutt Sharma.
13. Analysis and Findings:- To start with, following point of determination was framed:-(i) Whether the impugned judgment/decree, dated 06.05.2015, passed by the then Learned ACJ/ARC/CCJ (North East), Karkardooma Courts, Delhi is not in accordance with law? Firstly, after perusing the entire record, there seems to be no reason to consider the present appeal not filed within the period of limitation as the delay has been well explained by the plaintiff/appellant in his appeal as well as during the course of oral submissions that it was unintentional, but, because of receiving of the copy of judgment from the Copying Agency and further vacations. Secondly, it is to be noted that it is the plaintiff who has to establish his/her case and he/she will not automatically succeed merely because of the failure of the defendant to establish his/her defence. A party has to plead the case and produce/adduce sufficient evidence to substantiate his/her submissions made in the plaint. There is an essential distinction between burden of proof and onus of proof, burden of proof lies RCA No. 47659/2015 Page No. 16 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. In phipson on Evidence, 13th Edn, p 44, para 4-03, it is observed that the phrase burden of proof has three meanings, (1) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, (2) The evidential burden, the burden of proof in the sense of adducing evidence and (3) the burden of establishing the admissibility of evidence. In Halsbury, vol. 17, p 11, it is observed that there are at least two distinct senses in which burden of proof is used, and clarity over which sense is relevant at any given time is essential. The legal burden is the burden of proof which remains constant throughout a trial. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. Thus, burden of proof lies upon the plaintiff and it is he/she who has to prove the fact and it never shifts, while the onus shifts. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Thirdly, with respect to the Benami Transactions (Prohibition) Act, RCA No. 47659/2015 Page No. 17 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. 1988, the relevant provisions are section 2(a), 3(2)(a) & 4 which are reproduced herein for the convenience of the reference:-
Definitions.-- In this Act, unless the context otherwise requires,-- "2(a) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person;
"(3) Prohibition of benami transactions- (2) Nothing in Sub-section (I) 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;
"4. Prohibition of the right to recover property held benami.-
(3)(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."
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) Xxxxxxxxxxx (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.
Hon'ble, Supreme Court, way back in the year 1989, held/observed in Mithilesh Kumari v. Prem Behari Khare AIR 1989 SC 1247, which was re-affirmed, in Prabodh Chandra Ghosh v. Urmila Dassi AIR 2000 SC 2534, that in the Benami Transactions (Prohibition) Act 1988, any suit with the claim of right inheriting in the real owner in respect of any property RCA No. 47659/2015 Page No. 18 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. held benami would not be enforceable after the enactment of the Act, 1988 even if such transaction had been entered into prior to the date of the enactment of the Act. Thus, 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 the Act will not be entertainable on account of the fact that law has come into been prohibiting the enforcement of the right in the benami property. The intention of the passing of the Benami Act can be gathered from section 7 of the Act which repealed the provisions of sections 81, 82 and 94 of the Indian Trust Act, 1882. The latter provisions of the Trust Act once gave statutory recognition and protection to the benami transactions by calling such transaction protected by a relationship of trust. In J.M. Kohli vs. Madan Mohan Sahni & Anr, RFA No. 207/2012, decided on 07.05.2012, it was specifically mentioned that the expression fiduciary relationship and the relation of the trust now cannot be so interpreted so as to infact negate the Benami Act, itself, because all the benami transactions actually are in the nature of trust and created a fiduciary relationship. Section 7 of the Benami Act specifically repeals these certain provisions hence, the relationship of trust comprise in such provisions necessarily would be excluded from the sweep of the expression trust/fiduciary relationship found in section 4(3)(b) of the Benami Act because what is excluded by section 7 of the Benami Act cannot be included in section 4 (3)(b) of the Benami Act. Also, it is clear in the Act that no defence based on any right in respect of the 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 the such property. Reliance is placed upon Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal Bahri, AIR 1994 HP, Smt. Nirmala Devi v. Shri Karam Chand, Civil RCA No. 47659/2015 Page No. 19 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. Revision No. 45/1992, decided on 01.05.1992, Manoj Gupta v. Mrs. Manju Rani & Ors, RSA No. 53/2011, decided on 22.03.2011, Anil Bhasin v. Vijay Kumar Bhasin & Ors., 2003 (67) DRJ 174, decided on 20.08.2002, Dr. Manjeet Singh Anand etc. v. Sh. Sarabjit Singh Anand & Ors., CM Appl. No. 2518/2008, decided on 16.07.2009.
Further, section 4 (3) (b), of the Benami Act, protected the rights of the real owner where the person in whose name the property is held is a trustee or other person standing in the fiduciary capacity. Corpus Juris secundum mentions the term fiduciary as something which is the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of transaction, refers to the integrity, the fidelity of the party trusted, rather then his credit or ability, and has been held to apply to all the persons to occupy a position peculiar confidence towards others, and to include those informal relations which exits whenever one party trusts and relies on another, as well as technical fiduciary relations. Section 4 (3)(b), therefore, be interpreted in the sense that a person or trustee who is holding a property in fiduciary capacity has either committed a fraud or got the property in his name or is in furtherence of law holding the property in his name, however, in the capacity of trustee or in fiduciary capacity although the real owner is somebody else. Thus, in certain cases where there is oblivious breach of trust in purchasing of property in the name of a person, whereas it ought to have been purchased in the name of the principal or the real owner. Hon'ble Supreme Court has held that such actions are covered under section 4 (3)(b) of the Benami Transaction Act. Reliance is placed upon C. Gangacharan v. C. Narayanan, 2000 (U) SCC 459, P.V. Sankara Kurup v. Leelavathy Mambiar, 1994 (6) SCC 68 and CBSE v. Adiya Bandopadhyay, 2 (2011) 8 SCC 497.
Adverting, to the facts of the present case, plaintiff/appellant has RCA No. 47659/2015 Page No. 20 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. specifically pleaded in the plaint and later on, deposed in his affidavit of evidence, that he had purchased the suit premises in the name of his mother and raised the construction thereon or in other words it can be said that plaintiff/appellant here has contended that the property in question was purchased by him in the name of his mother or say the property was purchased benami. It is on the basis of this particular averment that the plaintiff/appellant is claiming the relief of declaration in his favour qua the property in question allegedly being the owner of the property in real terms. A reading of the relevant paragraphs of the plaint as well as the testimony, undoubtedly shows that the plaintiff/appellant had used the expression of the property being purchased in the name of the mother of the parties because of a fiduciary relationship and that she was a trustee and at the same time, he had admitted that the ownership in the name of mother was benami since the real ownership allegedly fell with the plaintiff/appellant. This aspect has also been clarified by the plaintiff/appellant in his written submissions as well as in the course of his oral submissions, wherein, he has stated/submitted that the suit is not barred by the Benami Act, inasmuch as suit falls within the exception contained in section 4 (3)(b) of the Benami Act as this provision allows exception to the benami transactions once there is fiduciary relationship or a relationship of trust/trustee. Factual contexts in which the question arises must be gone into before understanding any such type of relationship. It has been held by the Hon'ble High Court of Delhi in judgment titled as Sh Amar N Gugnani v. Naresh Kumar Gugnani Through Legal..., CS (OS) No. 478/2004, decided on 30.07.2015 that "16...Putting it in other words, once transactions were in the nature of trust, and such transactions in the nature of trust were encompassed within the meaning of trust as comprised in Sections 81. 82 and 94 of the Trusts Act, though such transactions were RCA No. 47659/2015 Page No. 21 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
transactions in trust and fiduciary in nature, such transactions were held to be illegal after passing of the Benami Act by repeal of these provisions of the Trusts Act. Obviously, it cannot be otherwise held that the transactions which fall within the meaning of Sections 81, 82 and 94 of the Trusts Act, though these Sections stand repealed, yet the transactions falling in these Sections will have protection of Section 4(3)(b) of the Benami Act. A reading of the judgment in the case of Marcel Martins (supra) shows that on the facts of the said case it was held that there was a fiduciary relationship and a relationship in the nature of trust, inasmuch as, actually all the parties were to be the owners but for the fact that the Corporation had desired, and which is in fact in the nature of compulsion by the Corporation and as per its policy, the property by the Corporation was not transferred in the name of all the legal heirs of Smt. Stella Martins but only in the name of one legal heir. Such transactions compassed in the case of Marcel Martins (supra), and which were brought about on the direction of a third party, is different from a voluntary transaction where a person voluntarily gives money for property to be purchased in the name of another person and in which case such a transaction where A pays money for the property to be purchased in the name of B, this by itself will necessarily be a benami transaction under Section 2(a) of the Benami Act which states that any transaction in which property is transferred to one person for a consideration paid or provided by another person, such a transaction is a benami transaction, and such benami transactions are subject matter of prohibition of Sections 4(1) and 4 (2) of the Benami Act..."
Finally, with respect to the invoking of the provisions of Easement Act very first time in the appeal especially at the time of filing the written submissions and during the course of propounding of oral submissions, Learned Counsel for plaintiff/appellant has claimed that is the plaintiff/appellant who had undertaken the construction over the suit premises therefore, relevant provisions of Easement Act be applied. Here, it needs to be pin pointed that neither in the plaint nor in the grounds of appeal, plaintiff/appellant had explained/deciphered the alleged RCA No. 47659/2015 Page No. 22 of 23 Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors. construction work undertaken by him. Nowhere, plaintiff/appellant has mentioned how and exactly what type of construction/over how much period of time was undertaken by him? Despite, having ample opportunities, not even a single bill qua the alleged construction or any other relevant piece of evidence substantiating the alleged construction undertaken by the plaintiff/appellant has ever been produced/put on record by the plaintiff/appellant. Thus, in the overall circumstances, it can be safely summed up that the burden of proof lying upon plaintiff/appellant in light of preponderance of probabilities/degree of probabilities has not been discharged by him and as such there is no question of shifting of onus on the defendants/respondents.
14. Therefore, in light of these facts and also in view of detailed foregoing discussion, the appeal filed by the plaintiff/appellant is hereby dismissed. The judgment passed by the Learned Trial Court suffers from no infirmity or illegality for which the same should be set aside. Hence, the impugned judgment and decree, dated 06.05.2015 is hereby upheld including it's findings.
15. TCR be sent back with the copy of this judgment.
16. Appeal file be consigned to Record Room after due compliance.
MANU Digitally signed by
MANU VEDWAN
VEDWAN Date: 2025.01.28
15:57:50 +0530
(Manu Vedwan)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Announced in the open court
today i.e. 28.01.2025
RCA No. 47659/2015 Page No. 23 of 23
Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.