Revision petition against dismissal of Order 7 Rule 11 application. Suit for partition barred under Benami Act due to lack of HUF averment. Trial court order set aside; suit rejected under Benami Act.
Impugned order dismissed under Order 7 Rule 11 CPC set aside; application allowed; suit rejected under Section 4 of Benami Transactions Act, 1988.
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*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
% Judgment delivered on: 07.11.2019 + C.R.P. 238/2018 & CM APPL. 46420/2018
SAKSHI & ANR ..... Petitioners
versus
DARSHAN SINGH (DECEASED) THR LRS ..... Respondent Advocates who appeared in this case:
For the Petitioner: Mr. C.M. Grover, Advocate For the Respondent: Mr. H.S. Sharma and Mr. Rakesh Kumar, Advocates with legal heirs/respondents
CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
C.R.P. 238/2018
Page 1 of 11
running from the premises bearing no. 2/122, Nakul Gali, Vishwas Nagar, Shahdara, Delhi.
C.R.P. 238/2018
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the plaintiff seeking to incorporate a plea of existence of Hindu undivided family, however, said application was dismissed by the same order and no appeal or proceedings have been initiated by the respondent impugning the order dismissing the application under Order 6 Rule 17 CPC. He submits that from the bare reading of the plaint, it is apparent that no cause of action is disclosed and further that the clam is prohibited under law.
“ ***** ***** *****
3. That thereafter the plaintiff decided to finally settle with the youngest son with whom the plaintiff had all love and affection and also the wife of the plaintiff got deep love and affection as the youngest son was very much attached with the parent and hence the plaintiff decided to settle amicably the children in different ways. The plaintiff also decided to promote the business for the youngest son late Sh. Surender Singh Kaisi and ultimately started carrying out the business in the name of his youngest son Shri Surender Singh Kalsi and provided all financial assistance for promoting the business of his youngest son with the help of Sh. Mahender Singh who also provided financial assistance to the family business promoting by the plaintiff. The wife of the plaintiff also sold all her ornaments and also invested all her earnings in the family business being promoted by the plaintiff and the entire savings of life of the plaintiff was given to the youngest son for the development and promotion of independent
C.R.P. 238/2018
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business as the plaintiff and his another son Sh. Mahender Singh started carrying out the business along with the youngest son and also the youngest son being the youngest one was given extra favour while giving financial assistance in the different business of the children and furthermore it was amicably settled by the other children that the plaintiff, Sh. Mahender Singh, Tarsem Kaur and the youngest son will reside jointly and will also carry out the business jointly and in any event the entire savings of the plaintiff as well as the jewellery of the wife of the plaintiff was invested in the business being carried out either in the name of the youngest son late Sh. Surender Singh Kalsi or in the name of other family members who were residing together with the plaintiff in the address given above.
4. That subsequently the defendant no. 1 started interfering the carrying out the business and very independently started alcohol together with the youngest son of the plaintiff and also brought her younger daughter and started residing together with the youngest son of the plaintiff and also started limitless drinking in the residential house where the plaintiff including the other family members were residing.
7. That with the development and promotion of the business. The plaintiff very honestly purchased property No.U-2, Hans Apartment, East Arjun Nagar, Delhi as well as purchased property No.2/122, Nakul Gali, Vishwas Nagar, Shahdara, Delhi-110032 in the name of the youngest son and his wife and the business was also promoted either
C.R.P. 238/2018
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in the name of the youngest son or in the name of the wife of the youngest son as the plaintiff never wanted to create any rupture in the relations between the defendant no.l and the other family members as the habits of defendant no. 1 and her younger sister was not appreciable and the defendant no. 1 was very alcoholic and used to take limitless liquor during the might together with the youngest son and her younger sister. However, the plaintiff objected to such heavy drinking but the defendant no. 1 threatened that in case of any objection the defendant no. 1 will implicate the youngest son and the entire family members under Sections 406/498-A IPC. Further the defendant no.1 from the beginning was very adamant and threatened the plaintiff that in the event the business is not promoted in the name of the defendant no.1 as well as properties are not purchased in the name of defendant no.1 with the family earnings then the defendant no. 1 will implicate the entire family members in some false cases through the Crime Women Cell.
8. That due to the indifferent attitude towards the family members the youngest son of the plaintiff started keeping alone and also started keeping unwell and also intimated time and again that the defendant no. 1 is of greedy nature and also the youngest son apprehended that either the family members will be implicated in some false cases or the youngest son may be killed in dubious circumstances and in fact it so happened that only 30 days back the youngest son was administered some alcoholic poison through which the youngest son of the plaintiff got senseless and was taken to hospital where he breathe his fast living the plaintiff and the family members alone.
C.R.P. 238/2018
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13. That the relationship of the joint family will be clear from the pedigree i.e. given below:-
Dr. Darshan Singh Sh. Mahender Singh Late Sh. Surender Singh Kalsi (Son) (Son)
It is further submitted that the other sons have no concern with the joint family property that has been developed and purchased by the plaintiff together with the son Sh. Mahender Singh and late Sh. Surender Singh Kalsi, out of their own earnings through the joint business of the family that was being run by the plaintiff as well as by late Sh. Surender Singh Kalsi and Sh. Mahender Singh Kalsi.”
C.R.P. 238/2018
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subject matter of the Suit were purchased in the name of Shri Surender Singh and his wife and the business was also promoted in his name as they did not want to create rupture in the relationship between her and the family members due to the habit of taking alcohol by the daughter-in-law and further that she used to threaten that she would implicate all the family members under Section 406/498-A IPC and also implicate them in false cases through Crime Women Cell.
2. Definitions- In this Act, unless the context otherwise requires,--
C.R.P. 238/2018
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(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.
C.R.P. 238/2018
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benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”
C.R.P. 238/2018
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funds’ or ‘joint properties’ are in law not equal to Hindu undivided family funds or Hindu undivided family properties or businesses and the joint funds is an expression which is not a law equal to joint Hindu family funds working together equivalent to existence of joint Hindu family.
C.R.P. 238/2018
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Family in existence and the properties were purchased out of Hindu Undivided Family, no evidence can be permitted to be led by the Plaintiffs on the said aspect. In the absence of pleadings to the said effect, no evidence can be led.
SANJEEV SACHDEVA, J
NOVEMBER 07, 2019 ‘ rs’
C.R.P. 238/2018
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3 issues framed by the court
Whether a suit for partition is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 when properties were held in one name but claimed to belong to a real owner with no Hindu Undi
Whether the impugned order dismissing the application under Order 7 Rule 11 CPC should be set aside on the ground of maintainability.
Whether specific averments regarding the existence of a Hindu Undivided Family are necessary to maintain a suit for partition of property purchased with joint funds.
Colour shows how this judgement treated each authority
Surender Kumar Khurana Vs. Tilak Raj Khurana & Ors.Applied¶68
Surender Kumar Khurana Vs. Tilak Raj Khurana & Ors. 2016 (155) DRJ 71
2 provisions across 2 enactments
Sakshi & Anr
Darshan Singh (Deceased) Thr LRS
Sanjeev Sachdeva
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
