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Benami Transactions (Prohibition) Amendment act, 2016 section 2(9)(A)(b) Exception (iii), 2, 3, 3(2), 4, 4(1), 4(2), 4(3). Delhi District Court on 16 May, 2020 hold for Benami transactions that the Amended Act is not applicatively retrospectively, however the Amended Act is applicable w.e.f. 01.11.2016 and the suit has been filed on 11 November 2016, therefore, what will govern the parties is not the Old Act but the Amended Act. Jagan Singh Gahlot vs Rajbala

 

38. At this stage I will deal with the controversy whether the Old Act or the Amended Act is applicable to the facts of the present suit, in this regard it may be noted that Hon’ble High Court of Delhi in Judgment 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 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 sub­section (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.”

 

39. In addition to it, Hon’ble High Court in Anis Ur Rehman v. Mohd. Tahir, judgment passed in RFA No. 855/2018 has held that the Amended Act is applicable with retrospective affect and in Para 8 has observed as under :

 

“In view of the aforesaid discussion, I cannot agree with the ratio of the judgment of the Bombay High Court in the case of Shri Joseph Isharat v. Smt. Rozy Nishikant Gaikwad in Second Appeal No. 749/2015 decided on 01.03.2017, which was cited on behalf of respondents/defendants that the provisions of the Amended Act are prospective”

 

40. 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.

 

As held by this court in case of Binapani Paul (supra) The Benani Transaction (Prohibition) Act would not be applicable retrospectively. “

 

41. From the above discussion it can be safely concluded that the Amended Act is not applicatively retrospectively, however the Amended Act is applicable w.e.f. 01.11.2016 and the suit has been filed on 11 November 2016, therefore, what will govern the parties is not the Old Act but the Amended Act.

 

 

Delhi District Court

Jagan Singh Gahlot vs Rajbala on 16 May, 2020

CS No. 08/2017

Jagan Singh Gahlot v. Rajbala & Ors.

Date of Decision :16.05.2020

 

 

: IN THE COURT OF :

1. V.K. DAHIYA

ADDITIONAL DISTRICT JUDGE­01:

SOUTH­WEST DISTRICT: DWARKA COURTS:

NEW DELHI

Civil Suit No. 08 / 2017 (517760 / 2017)

1. JAGAN SINGH GAHLOT

R/O FLAT NO. 102,

CGHS, SUPRIYA APARTMENTS,

PLOT NO. 20, DWARKA,

NEW DELHI­110075

….. Plaintiff

VERSUS

1. RAJBALA

W/O Sh. JAGAN SINGH GAHLOT

2. SONIA

W/O SH. JITENDER

3. JITENDER BHAGAT

ALL RESIDENTS OF:

FLAT NO. 511, CGHS,

SUPRIYA APARTMENTS,

PLOT NO. 20, DWARKA,

NEW DELHI­110075

….. Defendants

 

Date of Institution of Suit              :         11.11.2016

Date of transfer to this court           :         02.01.2017

 

Page No. 1 of 48

CS No. 08/2017               Jagan Singh Gahlot v. Rajbala & Ors.        Date of Decision :16.05.2020

Date of reserving judgment               :         16.05.2020

Date of pronouncement                    :         16.05.2020

Appearance (Through Video Conferencing):­

(i) Ms. Ashu Arora, Advocate Ld. Counsel for the plaintiff.

(ii) Sh. Dhruv Sehrawat, Advocate Ld. Counsel for defendant

no.1

SUIT FOR DECLARATION, POSSESSION AND PERMANENT

INJUNCTION

 

 

 

 

J U D G M E N T:

 

1. The present suit has been filed by the plaintiffs against the defendants seeking declaration, possession and permanent injunction.

 

2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff, for filing the present suit are that :

 

2. i) It has been averred that Plaintiff is the actual owner of the Flat No. 511, CGHS Supriya Apartments, Plot No. 20, Sector 10, Dwarka, New Delhi­110075 (herein after called the suit property) as the property was purchased out of the funds of the Plaintiff though in the name of the defendant no. 2. Plaintiff got married to the defendant no. 1 on 12/06/1975 and two daughters namely Sonia Defendant no.2, Sushila and a son named Nitin were born out of this wedlock in the year 1978, 1981 and 1984 respectively.

 

1. ii) It has been averred that plaintiff was an agriculturist and out of his own funds he purchased the following properties in his own name:

(1) Plot of 200 Sq. yards in New Roshan Pura, Najafgarh in the year 1985­87;

(2) Agricultural Land admeasuring 13 Bigha 16 Biswa Comprising in Musatatil/Khasra No. 8/18 (4­12), 19 (4­12) 20 (4­12) at Khata Khatauni no. 28/11 Situated in the revenue estate of Tajpur Khurd, Tehsil Najafgarh, New Delhi in the year 1987­88 (Gifted to the Plaintiff by his maternal uncle).

 

iii) It has been averred that apart from the above, the father of the plaintiff Late Sanwalia was the owner of some Agriculture land in village Kakrola. The said agriculture land was acquired by the Government in the year 1993 and the compensation of Rs. 66,77,620/­ was granted to him in the year 1993 vide cheque no. 921073. The father of the plaintiff expired in the year 1995 and being one of the legal heir, half the proceeds of above mentioned compensation i.e. Rs. 40 Lakhs approximately including interest fell into the Plaintiff’s share. However, unfortunately due to some property dispute, on 16.01.1983 an F.I.R. bearing no. 9/1983 was registered at P.S. Najafgarh against the plaintiff under Sections 302/34 IPC. In the above said case the plaintiff was convicted in the year 1995 and was sent to custody on 29.11.1995 and after serving around 14 years of sentence the plaintiff was released on 16/07/2009.

 

2. iv) While the plaintiff was serving the sentence, the properties so purchased by the plaintiff were being looked after by the wife i.e. defendant no.1, and elder daughter Sonia i.e. defendant no.2. The plaintiff had no reason to doubt the intentions of his wife and daughter and used to sign on whatsoever was brought before him by them. He used to give blank cheques to his wife so that his family may not suffer any undue financial hardship in his absence. In the year 2007, when the plaintiff was out on interim bail, upon request of the defendant no.1 he sold his 5/6 th share in Tajpur land to Smt. Saroj and Anita for a sum of Rs 50,06000/­ and vide the same sale deed, at the request of the defendant no.1, he also transferred his 1/6th share in favour of Smt Raj Bala, on the pretext, that, if the need arises, in his absence, she would be in a position to sell the same for the benefit of the family.

 

1. v) All the sale proceeds received against the said sale deed were used by the defendant No.1, in absence of the plaintiff, to purchase various properties in her own name. It has also come to the knowledge of the plaintiff that the said remaining 1/6 th share in the name of the defendant no. 1 has also been sold by the defendant No. 1 merely for a sum of Rs. 26,50,000/­ whereas the cost of the land was 53,00,000/­ and the sale proceed was kept by her. The plaintiff reserves his right to claim the said amount after gathering all the required information.

 

1. vi) It is averred that while the plaintiff was serving his sentence, the suit property was purchased in the name of the defendant no. 2 in the year 2007 in which Rs. 8,00,000/­ were paid towards the sale considerations directly from the bank account of the plaintiff and remaining amount was paid out of the sale proceeds of Tajpur Land and the funds transferred in the accounts of the defendant No. 1 & 2 from the accounts of the plaintiff at different occasions when the plaintiff was in judicial custody.

 

vii) It is averred that though the plaintiff purchased the said property in the name of the sefendant No. 2 out of his own funds, the same do not fall under the purview of Benami transactions as purchase of properties in the name of family members is permitted under the law.

 

viii) It has been averred that somewhere in March­April 2016, the defendant no.2 along with defendant no. 3 in conspiracy with defendant no.1 came to meet the plaintiff and asked him to sign certain papers. The defendants did not inform the plaintiff the reason for obtaining the signatures. Since the plaintiff had no reason to doubt the intentions of his daughter and wife, therefore he signed those papers in good faith.

 

3. ix) In the first week of August 2016, the plaintiff had a major fight with the defendant no. 1 when the defendant no. 3 assaulted the plaintiff and the defendant no. 1 instead of taking stand against it, supported defendant no. 3.

 

1. x) In the first week of September 2016, the plaintiff came to know about the sale of two plots admeasuring 156 Sq Yards and 100 Sq. yards in Najafgarh which were purchased in the name of the defendant no. 1 out of the funds of the plaintiff. The defendant no. 1 with the help of defendant no. 2 and 3 sold these plots without even informing the plaintiff and retained the entire sale consideration.

 

1. xi) When the plaintiff questioned about the sale of properties purchased out of his funds without his permission and illegal retaining of the sale proceeds by the defendants, threatened him that he has no right to say anything about the properties and they can throw him out of the suit property as well as the same stands in the name of the defendant no.1. The plaintiff had a major fight over this issue when the defendant no. 1 claimed to be the owner of the entire properties since all of them stands in her name.

 

xii) The defendant no.1 had always remained a house wife and had no source of income of her own. She used to manage the funds of the plaintiff in his absence and after selling the properties of the plaintiff she used to purchase the properties either in her own name or in the name of defendant no. 2 who also never had any independent source of income.

 

xiii) It is averred that not only the defendant No. 1 in connivance with i.e. defendant No. 2 &3 are threatening to throw the plaintiff out of the suit property but the plaintiff has come to know that they are approaching the property dealers of the area for sale of the suit property. The plaintiff apprehends that the defendants might be having certain blank papers signed by the plaintiff, which they may misuse against the interest of the plaintiff. It is averred that plaintiff is senior citizen and he fears that the intentions of the defendants they may create a third party interest in the suit property against the plaintiff’s interest. The plaintiff believes that unless the defendants are restrained from transferring/alienating the said suit property thereof to a third party, the plaintiff shall suffer irreparable loss and injury.

 

xiv) The present suit is filed to protect the rights of the plaintiff with respect to the suit property and to avoid multiplicity of litigation which may arise in case the defendants transfers the suit property to some other person. By way of the present suit, the plaintiff is also seeking the declaration that he be declared the owner of the suit property as the same was purchased out of his own funds. The plaintiff is in process of filing suits in respect of different properties against the defendants once he acquires the required documents. Hence the present suit.

 

3. After filing of the suit summons for settlement of issues were issued to the defendants, defendants put appearance and defendants filed written statement, and ineralia, submitted that suit of the plaintiff is hit by article 58of Limitation Act. The suit of the plaintiff is hopelessly time barred. It is submitted that as per own admission of the plaintiff though not admitted, the suit property purchased by the defendant no. 2 in the year 2007 and the plaintiff has filed the present suit on 10.11.2016, admittedly after a gap of more than 8­-9 years, which is not permissible under the law.

 

4. It has also been submitted that suit of the plaintiff is also hit by section 3& 4(1)of Benami Transaction (Prohibition) Act, 1988. (hereinafter referred to as the Old Act). It is submitted that even for the sake of argument, though not admitted, it is presumed that the part sale consideration at the time of purchasing the suit property was paid by the plaintiff through his account, even then it is irrebuttable presumption in favour of the defendant no. 2 that the suit property was purchased by the plaintiff for the welfare of his daughter, and now the plaintiff cannot claim the ownership by way of filing the present suit.

 

5. It is submitted that the suit of the plaintiff is also hit by section 14of The Hindu Succession Act as it is settled law that the property purchased/existed, if any, in the name of women, it deemed to be her Istridhan and nobody can claim any right, title or interest over the said property, hence the suit of the plaintiff is liable to be dismissed on this ground alone.

 

6. It is submitted that admittedly, no notice was served upon the defendants by the plaintiff and in the absence of statutory notice, the plaintiff is not permissible to continue with his case as the same is mandatory required under the law, particularly, if the plaintiff is seeking relief of possession in the form of mandatory injunction. It is submitted that no cause of action has arisen for filing the suit in favour of the plaintiff and against the defendants, hence the present suit is liable to be dismissed under order VII rule 11 of CPC. It is submitted that no cause of action ever accrue against the defendant no. 2 (the owner of the suit property) as envisaged in para 8 of the plaint by the plaintiff.

 

7. It is submitted that the there is only one plot measuring 150 Sq. yards which was in the possession of the defendant no. 1 but the same was her self­acquired property and the plaintiff has no concern with the said plot. It is further submitted that no another 100 Sq. yard plot was ever existed/available with the defendant no. 1, so, the question of disposing off the same does not arise. The plaintiff has not approached the Court with clean hands and has placed the false and distorted facts as per his convenience and now wanted to take benefits of his own wrongs.

 

8. It is also submitted that plaintiff has no locus to seek the declaration in regard to the suit property for the reason that the plaintiff has never been the owner of the suit property nor he has been party either to the agreement to sell or to the sale deed dated 02.11.2007.

 

9. The suit property is the self acquired property of the defendant no. 2. The relief as sought for by the plaintiff seeking declaration of owner of suit property is without any basis in as much as the defendant no.2 is the bonafide purchaser of the suit property after payment of full consideration amount to the then owner of the suit property, who admittedly was the absolute owner of the suit property.

 

10. It is submitted that plaintiff has not approached this Court with clean hands and is guilty of Supresso­vari and Suggestio­falsi and has concealed the factual position from this Hon’ble Court. It is submitted that the suit filed by the plaintiff is based on false, fabricated and concocted facts and has only nefarious designs and cooked up story, hence the same is liable to be dismissed with heavy costs. The plaintiff has filed the present suit only to harass, humiliate and extort money from the defendants and also to take benefits of her own wrongs, hence the same is liable to be dismissed with heavy costs.

 

11. It is submitted that the suit property is the self­ acquired property of the defendant no.2 and purchased the same for a total sale ­consideration of Rs. 17,00,000/­ and out of the total sale­ consideration towards the suit property, the defendant no. 2 paid a sum of Rs. 9,00,000/­ vide a cheque bearing no. 627321 dated 14.08.2007 for Rs. 7,00,000/­, drawn on Punjab & Sindh Bank, Old Roshan Pura Extn., Najafgarh, New Delhi and a Cheque bearing no. 541563 dated 14.08.2007 for Rs 2,00,000/­ drawn on State Bank of India, Najafgarh village, New Delhi. It is admitted to the extent that defendant no. 2 paid a sum of Rs. 8,00,000/­ from the account of plaintiff in purchasing the suit property. However, it is clarified that defendant no. 2 used his father’s account number as being the close relationship between the parties.

 

12. It is also submitted that in the year, November 2005, the defendant no. 2 also purchased one commercial space no. 220 in Vardhman Premium Mall, situated at Pitampura, Delhi for a total sum of about Rs. 14.86 lakhs and thereafter, in terms of an oral family settlement which was arrived at between the parties it was stipulated that the plaintiff shall not claim anything from the payment made through his account i.e. Rs. 8,00,000/­ as the same be treated as a Gift to his daughter from his father and it was further settled between the parties that the defendant no. 2 shall transfer her all rights of the abovesaid property, in favour of her brother Nitin Gahlot, and consequently in terms of oral settlement between the parties stated above, on 25.03.2008 the defendant no. 2 transferred her all rights, title or interest in the abovesaid property in favour of her brother. Not only that, the defendant no. 1 & 2 also deposited a sum of Rs. 9,00,000/­ and Rs. 7,00,000/­ in cash respectively in the account of plaintiff. The defendant no. 2 shocked to receive the notice of present suit, which is filed by the plaintiff as the plaintiff himself knew that all the consideration paid towards the purchase of suit property, was being paid by the defendants and the plaintiff has no concern/right over the suit property. The relationship between the parties were always cordial and now suddenly, the plaintiff cooked up a false, baseless and concocted story for the reasons best known to him.

 

13. Defendants have admitted that father of the plaintiff received the compensation however, it is denied that the plaintiff being one of the legal heir, received half the proceeds of above mentioned compensation i.e. Rs. 40 lakhs approx. The sale proceeds allegedly received against the sale­deed were never used by the defendant no. 1 to purchase various properties in her own name. It is further denied that the sale proceeds of 1/6 th share of land in the name of the defendant no. 1 was sold on the lesser value as alleged in the plaint or the sale proceeds are still kept by defendant no. 1. her.

 

14. It is submitted that on 09.07.2007, the plaintiff himself sold the Tajpur property at his own for a total sale consideration price of Rs. 50,06,000/­ and the total sale consideration was received by the plaintiff in cash from the then purchaser of the property. The plaintiff no. 1 did not handed over even a single penny to the defendants from the aforesaid sale consideration of Rs. 50,06,000/­. However, it is further submitted that defendant no. 1 sold the 1/6th share in the said property of Tajpur, Najafgarh on 10.01.2011 i.e. after a gap of more than four years of purchase of suit property, which clearly proves that the said transaction has no concern/relevancy with the present dispute, rather the inference can be drawn that the plaintiff has placed all distorted facts for taking benefits of his own wrongs.

 

15. It is submitted that the plaintiff has placed all false, baseless and concocted story just to harass/blackmail the defendants. In view of the submissions made above, it is crystal clear that the suit property is purchased by the defendant no.2 from her own sources and the suit property is her self acquired property and nobody has any concern/right over the suit property. The plaintiff in connivance with his son Nitin Gahlot in order to fulfill their ulterior motives and illegal designs has filed the present suit just to extort money from the defendants. The defendant no. 2 hereby reserves her right to proceed as per law against her brother/father to take back the property transferred in the name of her brother Nitin Gahlot or the amount deposited in the bank account of plaintiff.

 

16. It is submitted that it is well settled law that if husband/father of the purchased any property 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 said wife or unmarried daughter.

 

17. It is submitted that when the defendants did not ask the plaintiff to sign any documents in the month of March­April, 2016, so, the question of informing the plaintiff about the same did not arise. However, it is further submitted that neither the defendants requested the plaintiff to sign any documents nor the plaintiff had signed any such paper as alleged by the plaintiff.

 

18. It is submitted that the plaintiff has deliberately and intentionally placed all false, distorted facts before this court and no such incident ever happened as alleged by the plaintiff. No other 100 sq. yard plot was ever available with the defendant no. 1, so, the question of disposing the same did not arise. Admittedly, the plaintiff is not in the possession of the suit property, so, the question of threatening him thrown out from the suit property did not arise. Moreover, the suit property is the self­acquired property of the defendant no. 2 and nobody has any right, title or interest in the suit property, infact, the plaintiff has no locus to file the present suit hence the same deserves to be dismissed.

 

19. Plaintiffs have filed replication to the written statement of the defendants thereby, denying all the allegations levelled in written statement and has reiterated its allegations levelled in the plaint.

 

20. On the basis of pleadings of the parties, following issues were framed vide order dated 27.01.2017 :­

 

1. Whether the suit is barred by limitation, in view of preliminary objection no. (1) of the written statement ? OPD

 

2. Whether the suit is hit by Section 3& 4(1)of Benami Transaction (Prohibition) Act 1988, in view of preliminary objection no. (2) of the written statement ? OPD

 

3. Whether the suit is hit by Section 14of Hindu Succession Act, in view of preliminary objection no. (3) of the written statement ? OPD

 

4. Whether the plaintiff has no locus standi to file the present suit, in view of preliminary objection no. (6) of the written statement ? OPD

 

5. Whether the plaintiff is entitled to the decree of declaration, as prayed for in prayer (a) ? OPP

 

6. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer (b) ? OPP

 

7. Whether the plaintiff is entitled to the decree of possession/ mandatory injunction, as prayed for in prayer (d) ? OPP

 

8. Relief ;

 

21. Thereafter, matter was listed for recording of plaintiffs evidence. In support of his case, the plaintiff has examined himself as PW­1 who has deposed on affidavit Ex.PW1/A and relied upon documents, his testimony has not been reproduced for the sake of brevity and will be adverted to at the relevant stage, PW1 relied upon following documents :

 

1. The photocopy of Sale Deed dated 02.11.2007 registered on 03.11.2007 is Mark A,

 

2. The copy of the bank statement of account no.1519000100273104 of the plaintiff is Ex PW1/2,

 

3. The copy of cheque dated 19.05.1993 drawn on SBI Bank Tis Hazari Court Branch is Mark B,

 

4. the copy of the khatauni pertaining to the year 2001­2002 of khasra No. 8/18, (4­12) 19 (4­12) and 20 (4.12) of Village Tajpur is Mark C,

 

5. The copy of the sale deed dated 9.07.2007 executed by PW1 in favour of Mrs. Saroj and Mrs. Anita in respect of land falling under KHASRA No. 8/18, (4­12) 19 (4­12) and 20 (4.12) situated in the revenue estate of Village Tajpur Khurd is Mark D,

 

6. The copy of the certified true copy of the Sale Deed dated 11.01.2011 executed by Mrs. Rajbala in favour of Mrs. Renu Sharma in respect of her 1/6th share of land falling under Khasra No. 8/18, (4­12) 19 (4­12) and 20 (4.12) situated in the revenue estate of Village Tajpur Khurd is Mark D.

 

7. The copy of the Legal Notice dated 09.09.2016 served upon PW, Mr. Nitin Gahlot and Mrs. Seema Gehlot by Mrs. Rajbala is Ex. PW1/7.

 

22. Sh. Ravinder Kumar, Bailiff, LAC Office, South West District, Kapashera, New Delhi is examined as PW2 who has proved on record sale deed dated 03.11.2007 as Ex. PW2/A, sale deed dated 09.07.2007 as Ex. PW2/B, sale deed dated 11.01.2011 is Ex. PW2/C.

 

23. Sh. Bijender Singh, Patwari, SDM Office, South West District, Kapashera, New Delhi is examined as PW3 who has stated that the record, khata Number 28/11 of Village Tajpur Khurd, khatauni of the year 2001­2002, has been consigned to record room Najafgarh and filed his report as Ex. PW3/A.

 

24. Sh. M.S. Jakhar, Office Kanungo, SDM Office, South West District, New Delhi is examined has PW4 who has proved on record khata Number 28/11 of Village Tajpur Khurd, khatauni of the year 2001­2002, as Ex. PW4/A.

 

25. Plaintiff also got examined Sh. Mahender Singh Gahlot, his brother as PW5, who has deposed on affidavit by way of evidence Ex. PW5/A.

 

26. Sh. Atul Kumar Yadav, Customer Asst. from SBI, Najafgarh Branch was examined as PW6 who has proved on record the statement of account of defendant no. 1 Rajbala w.e.f. 01.04.2017 to 30.09.20107.

 

27. Thereafter, the plaintiffs evidence was closed and matter was listed for recording of defendants evidence.

 

28. Smt. Rajbala defendant no. 1 was examined as DW1.

She was remained un­examined though opportunity is granted. No other witness was got examined and defendants evidence was closed.

 

29. I have heard the arguments on behalf of counsel for parties and gone through the pleadings as well as evidence and all the annexed and exhibited documents and record.

 

30. My issue wise findings are as under : ­

 

31. These issues are over lapping each other and are disposed off by this common order. The onus to prove these issues is on the plaintiff.
32. During the course of arguments Ld. Counsel for the plaintiff has contended that the present suit has been filed after coming into force The Benami Transactions (Prohibition) Amendment act, 2016, (hereinafter referred to as the Amended Act) therefore, the provisions of the Amended Act are applicable to the facts of the present case. He further submitted that as per section 2(9)(A)(b) Exception (iii) of the Amended Act, the suit property transferred in the name of defendant no. 2 by plaintiff is not a benami transaction and the same is also not hit by Section 3 & 4 of the Old Act. In this regard reliance is placed upon Manoj Anand v. Mamta Arorain RFA No. 522/2017, judgment passed by Hon’ble High Court of Delhi.

 

33. Ld. Counsel for the plaintiff has further submitted that there is no doubt that by virtue of Section 14(1)of the Hindu Succession Act, a female has become absolute owner of the property owned and possessed by her after coming into force the Hindu Succession Act, however, the plaintiff has purchased the suit property in the name of defendant no. 2 from his own funds for the welfare of his family, therefore the Sections of Hindu Succession Act cannot override the provision of the amended Benami Transaction Act.

 

34. He further submitted that plaintiff has locus standi to file the present suit in as much as it is legally permissible for a person to purchase immovable property in the name of his wife /daughter by virtue of provision of the unamended/Amended Act and plaintiff being de jure owner of the property is entitled to seek the ownership and possession of the same from defendant no. 2. Ld. Counsel for defendant no. 1 has argued on the lines of plaintiff and supported the case of plaintiff.

 

35. Before proceeding further this court would like to reproduce the relevant provisions of the Old Act and Amended Act which are as under :

 

“The relevant provisions of the Old Act, read as follows:

 

“3. Prohibition of benami transactions.­

 

(1) No person shall enter into any benami transction.

 

(2) Nothing in sub­section (1) 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;

 

(b) the securities held by a­

 

(i) depository as registered owner under sub­section (1) of section 10 of the Depositories Act, 1996

 

(ii) participant as an agent of a depository. Explanation­ The expressions “depository” and “Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub­ section (1) of section 2 of the Depositories Act, 1996.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

 

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non­ cognizable and bailable.

 

“Section 4 of the Old Act reads as under:­

 

“4. Prohibition of the right to recover property held benami­­

 

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

 

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

 

(3) Nothing in this section shall apply,­­

 

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

 

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”

 

36. It is relevant at the outset to state that Section 4(3) of the Old 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

 

(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”

 

37. 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 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.

 

38. At this stage I will deal with the controversy whether the Old Act or the Amended Act is applicable to the facts of the present suit, in this regard it may be noted that Hon’ble High Court of Delhi in Judgment 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 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 sub­section (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.”

 

39. In addition to it, Hon’ble High Court in Anis Ur Rehman v. Mohd. Tahir, judgment passed in RFA No. 855/2018 has held that the Amended Act is applicable with retrospective affect and in Para 8 has observed as under :

 

“In view of the aforesaid discussion, I cannot agree with the ratio of the judgment of the Bombay High Court in the case of Shri Joseph Isharat v. Smt. Rozy Nishikant Gaikwad in Second Appeal No. 749/2015 decided on 01.03.2017, which was cited on behalf of respondents/defendants that the provisions of the Amended Act are prospective”

 

40. 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.

 

As held by this court in case of Binapani Paul (supra) The Benani Transaction (Prohibition) Act would not be applicable retrospectively. “

 

41. From the above discussion it can be safely concluded that the Amended Act is not applicatively retrospectively, however the Amended Act is applicable w.e.f. 01.11.2016 and the suit has been filed on 11 November 2016, therefore, what will govern the parties is not the Old Act but the Amended Act.

 

42. It may be noted that plaintiff as PW1 testified that he was married with defendant no. 1/his wife on 12.06.1975 and out of the said wedlock three children were born namely, Sonia (Defendant no. 2), Susheela and Nitin. PW1 is an agriculturist and was owner of properties i.e.

(1) Plot of 200 Sq. yards in New Roshan Pura, Najafgarh in the year 1985­87;

 

(2) Agricultural Land admeasuring 13 Bigha 16 Biswa Comprising in Musatatil/Khasra No. 8/18 (4­12), 19 (4­12) 20 (4­12) at Khata Khatauni no. 28/11 Situated in the revenue estate of Tajpur Khurd, Tehsil Najafgarh, New Delhi in the year 1987­88 (Gifted to the Plaintiff by his maternal uncle).

 

Apart from that his father late Sh. Sanwalia was owner of some agriculutre land in village Kakrola which was acquired by Govt. in the year 1993 and a compensation of Rs. 66,77,630/­ was granted to his father vide cheque no. 921073. The father of the plaintiff expired in the year 1995 and being one of the legal heir, half the proceeds of above mentioned compensation i.e. Rs. 40 Lakhs Approximately including interest fell in to the Plaintiff’s share. However, unfortunately due to some property dispute, on 16.01.1983 an F.I.R. Bearing no. 9/1983 was registered at P.S. Najafgarh against the plaintiff under Sections 302/34 IPC. In the above said case the plaintiff was convicted in the year 1995 and was sent to custody on 29.11.1995. After serving around 14 years of sentence the plaintiff was released on 16.07.2009.

 

43. PW1 has sold part of his property at village tajpur to the vendees Smt. Saroj and Smt. Anita for a sum of Rs. 50,06,000/­ in terms of Ex. PW1/5 and 1/6th share in the said land was transferred in favour of defendant no. 1. As defendant no. 1 is in need of money, if need arises in the absence of PW1 who was undergoing life imprisonment and defendant no. 1 in the absence of PW1 purchased various properties in her name and the suit property was purchased in the name of defendant no. 2 vide Ex. PW2/A dated 03.11.2007 and a consideration of Rs. 8,00,000/­ was paid through bank account of PW1 and the remaining amount of Rs. 9,00,000/­ was paid out from the sale proceeds received after disposal of the land at village tajpur and the funds transferred in the name of defendant no. 1 & 2 from the account of PW1 when he was in judicial custody. The suit property was purchased in the name of defendant no. 2 out of the funds belonging to PW1 and therefore, the said transaction is not falling within the purview of Benami Transaction.

 

44. PW1 testified that in the month of March/April 2016, defendant no. 2 along with defendant no. 3 in conspiracy with defendant no. 1 got some signature documents which PW 1 signed in good faith. Thereafter, in August 2016, PW1 has a fight with defendant no. 1 when defendant no. 3 assaulted PW1. PW1 came to know in September 2016 that the two plots admeasuring 156 sq. yards and 100 sq. yards in Najafgarh was purchased in the name of defendant no. 1 from the funds belonging to PW1 however, defendant no. 2 & 3 sold the above said two plots and retained the entire sale consideration. defendant no. 2 & 3 have also disposed off certain other properties in the name of defendant no. 1 purchased out of the funds of PW1.

 

45. PW1 accosted the sale of properties purchased out of his funds without his permission and retention of the sale proceeds by the defendants however, defendants threatened PW1 that PW1 has no right on the said properties and defendants can throw PW1 out of the suit property. Neither defendant no. 1 nor defendant no. 2 has independent source of income and defendant no. 1 & 2 managed the funds after selling his properties in the absence of PW1. The defendants have threatened to throw PW1 out of the suit property and PW1 came to know that defendants are approaching property dealers to sold the suit property also. PW1 has not been cross­examined therefore his testimony gone un­ controverted and un­rebutted. Furthermore, defendant no. 1 appeared as DW1 and testified that suit property was purchased from the funds of the plaintiff as neither defendant no. 1 was employed not daughter of defendant no. 1 was employed at the time of purchase of the suit property meaning thereby defendant no. 1 as DW1 has supported the case of plaintiff in toto.

 

46. It is relevant to observe that under the Old Act 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 daughter/defendant no. 2 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).

 

47. The defendant no. 2/daughter of plaintiff has contended that plaintiff has not pleaded that the suit property was not purchased for the benefit of defendant no. 2 however it was purchased for the benefit of plaintiff and therefore, what is not pleaded cannot be proved and no amount of evidence can be considered unless there is a background in the pleadings. It was further pleaded that under the Old Act as well as under the Amended Act the statutory rebuttable presumption still hold the field and plaintiff is very much obliged to plead and prove that the suit property was not purchased for the benefit of defendant no. 2 but for that of plaintiff himself.

 

48. Though not quoted but reliance is placed upon Hemant Satti vs Mohan Satti & Ors, 2013 wherein, the Hon’ble High Court has observed that the plaintiff has to prove and discharge his onus, by first pleading it. The authorities are clear that so long as the parties are left without doubt as to what is required to be traversed, inexactitude in the plea is not a bar; it is the substance of the pleading that matter, rather than the text. The Hon’ble Supreme Court has held so, in Konda Lakshmana Bapuji v Govt of A.P. AIR 2002 SC 1012 and relevant portion is reproduced as under :

 

“..it is a settled position that if the parties have understood the pleadings of each other correctly, an issue was also framed by the Court, the parties led evidence in support of their respective cases, then the absence of a specific plea would be no difference.”

 

49. The said view has already been made by the Hon’ble Supreme Curt in Nedunari Kameshwaramma v Sampati Subba Rao: [1963] 2SCR 208, and it was observed as under :

 

“xxxxxx No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that in absence of an issue was fatal to the case, or that there was that mis­trial which vitiates proceedings.’

 

50. This view was approved by in Kali Prasad (Dead) by LRS & Ors v Bharat Coking Coal Ltd & Ors1989 (2) SCR 283. In Sardul Singh v Pritam Singh & Ors 1999 (2) SCR 22, it was held as under :

 

“It is well ­settled that notwithstanding the absence of pleadings before a court or authority, still if an issue is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an opportunity to produce evidence or cross examine witnesses in relation to the said issue, no objection as to want of specific pleading can be permitted to be raised later…”

 

51. Therefore, from the pleadings of plaintiff it can be concluded that he pleaded that he purchased the suit property in the name of defendant no. 2 but for her benefit, otherwise it was for benefit of his.

 

52. So far as the proposition of law as to whether plaintiff as a father has not purchased the suit property in the name of his child/daughter/defendant no. 2 for her benefit and suit property was really his and he is entitled to recover the possession thereof is concerned, the pleadings and evidence lead by parties is to expiscated. In this regard, it may be relevant to observe that as per the contents of the sale deed, the marital status of defendant no. 2 has been shown as wife of Jitender Kumar/defendant no. 3 and further more, parties neither in the pleading, nor in the evidence has claimed that defendant no. 2 was unmarried at the time of execution of the sale deed, on 09.07.2007. Therefore, plaintiff has no case to claim the suit property under the Old Act as per the provisions of Section 3 of the Old Act in as much as that claim can be made against an unmarried daughter. However, as stated above this suit is to be governed by the Amended Act.

 

53. It may be noted that Nand Kishore Mehra v. Sushila Mehra, AIR 1995 SC 215, is an authority for the proposition that a husband/father, to successfully claim that the property in the name of his wife/child/unmarried daughter is really his and that he is entitled to recover possession, or base a claim for relief in the capacity of owner, should show that at the time of purchase of the property, his intention was that the property was not for benefit of the wife/child/unmarried daughter. The requirements of proof in Section 3were explained in the judgment, G. Mahalingappa vs G.M. Savitha2005 (6) SCC 441 where the following findings were recorded:

 

“As noted herein earlier, the following findings of fact were arrived at by the appellate court and the trial court to conclude that the transaction in question was benami in nature :­

 

1) the appellant had paid the purchase money.

 

2) the original title deed was with the appellant. And

 

3) the appellant had mortgaged the suit property for raising loan to improve the same.

 

4) he paid taxes for the suit property.

 

5) he had let out the suit property to defendant Nos. 2 to 5 and collecting rents from them.

 

6) the motive for purchasing the suit property in the name of plaintiff was that the plaintiff was born on an auspicious nakshatra and the appellant believed that if the property was purchased in the name of plaintiff/respondent, the appellant would prosper.

 

7) the circumstances surrounding the transaction, relationship of the parties and subsequent conduct of the appellant tend to show that the transaction was benami in nature.

 

********** *********** *********

Section 3(2) makes it abundantly clear that if a property is purchased in the name of an unmarried daughter for her benefit, that would only be a presumption but the presumption can be rebutted by the person who is alleging to be the real owner of the property by production of evidences or other materials before the court.”

 

54. 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 Spreme 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 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. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M. P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v.Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. It has been held in the judgments referred to above that 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. After saying so, this Court spelt out 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 ; and (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).

 

14. 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. We would examine the present transaction on the touchstone of the above two indicia.

 

*** *** ***

 

18. It is well ­settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original Plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the Plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the Plaintiff to examine the relevant witnesses completely demolishes his case.” These observations were reiterated in Binapani Paul vs. Pratima Ghosh & Ors. 2007 (6) SCC 100.”

 

55. It may be noted that the Hon’ble High Court of Delhi in Yogita Dasgupta v. Kaustav Dasgupta, judgment passed in MAT Appeal (FC) 07/2014 has observed as under :

 

18. Here it would be important to recognize that a plain interpretation of Section 3would 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 3is 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.”

 

56. From the bare perusal of the above said principles of law laid down by the Hon’ble Supreme Court, it can be at least concluded that although the rebuttable presumption as incorporated the Section 3 of the Old Act in the following words “unless the contrary is proved” stand omitted in the section 2(9) of the Amended Act. However, the plaintiff is still bound to prove that the suit property was not purchased for the defendant no. 2 as his child in as much as burden of proof to prove this fact is still on the shoulders of plaintiff despite omission of the said rebuttable presumption because under the Old Act, the plaintiff was supposed to rebut the said rebuttable presumption.

 

57. With the above said principles of law, I would like to advert with the facts of the present case. It may be noted that from the testimony of PW1 it is clear that the consideration for the purchase of suit property was paid by plaintiff/PW1 in as much as the sale deed Ex. PW2/A contained the following recitals so far as payment of sale consideration to the vendor by defendant no. 2 which are as under:

 

14. i) Rs. 7,00,000/­ vide cheque No. 627321 dated 14.08.2007 drawn on Punjab & Sind Bank, Old Roshan Pura, (Extn.) Najafgarh, New Delhi 110043.

 

14. ii) Rs. 8,00,000/­ vide cheque No. 312135 dated 14.08.2007 drawn on Punjab National Bank, Old Najafgarh village, New Delhi 110043.

 

iii) Rs. 2,00,000/­ vide cheque No. 541563 dated 14.08.2007 drawn on State Bank of India, Najafgarh Village, New Delhi 110043.

 

58. The cheque at Sl. No. (ii) was issued by the plaintiff and got encashed by Smt. Shanti Devi the vendor of the sale deed Ex. PW2/A in terms of the bank statement Ex. PW1/2 wherein it is detailed that the cheque of Rs. 8,00,000/­ was encahsed by Smt. Shanti Devi.

 

59. The cheque at Sl. No. (i) was issued by defendant no.1 which was cleared on 18.08.2007 but prior to that an amount of Rs. 7,00,000/­ was deposited in the account of defendant no. 1 on 06.08.2007 in cash, meaning thereby the said amount of Rs. 7,00,000/­ was also paid by plaintiff in as much as defendant no. 1 has admitted that the said amount was deposited by her in her account in cash.

 

60. The cheque at Sl. No. (iii) was also issued by defendant no. 1 and got encahshed as per the details contained in statement of account of defendant no. 1 Ex. PW6/A at Point A.

 

61. From the above discussion, it can be safely concluded that the sale consideration for the purchase of suit property in the name of defendant no. 2 has been advanced by the plaintiff through his bank account as well as the bank account of defendant no. 1 in as much defendant no.1 has admitted the case of plaintiff and defendant no. 2 has filed written statement and thereafter failed to appear and proceeded ex­parte. In written statement she along with other defendants had pleaded that even though not admitted, it is presumed that part of the sale consideration and part paid by the plaintiff to the tune of Rs. 8,00,000/­. The suit property was purchased by plaintiff for the welfare of his daughter and the provision are Benami Transaction Actare applicable to the facts of the present case. However, in the written statement defendants had pleaded that an oral family settlement was arrived at between the parties that the plaintiff shall not claim anything regarding the payment of Rs. 8,00,000/­ made from his account for the purchase of the suit property and the same will be treated as a gift to defendant no. 2. It was further settled that defendant no. 2 shall transfer her rights in the property i.e. Commercial space no. 220 in Vardhman Premium Mall situated at Pitampura, Delhi and defendant no. 2 has transferred all her rights in the above said property in favour of her brother Nitin on 25.03.2008. Furthermore, defendant no. 1 & 2 got deposited an amount of Rs. 9,00,000/­ and Rs. 7,00,000/­ in cash, in the account of plaintiff in cash.

 

62. From the pleadings of the defendants, it can be safely concluded that even as per the case of the defendants, the suit property was purchased from the funds of plaintiff and apart from that the suit property was not purchased for the benefit of defendant no. 2 by plaintiff being his daughter in as much as defendant no. 2 has pleaded that in lieu of the suit property she has transferred the abovesaid property in favour of Nitin meaning thereby the suit property was never intended to have been purchased for the benefit of defendant no. 2 otherwise it was purchased either for the welfare of the family or for plaintiff that is why defendant no. 2 has pleaded that in lieu of suit property she has transferred her rights in the above said property in favour of his brother.

 

63. It may be noted that from the judgment cited in the foregoing paras of this judgment it would be very clear that a person in order to succeed in a suit or defence under the Old Act he should prove that although the property was purchased in the name of his wife or unmarried daughter the same was not purchased for the benefit of either the wife of unmarried daughter, as the case may be because of the statutory presumption contained in Sub section (3) or Sub section (2). However, under the Amended Act, the said presumption has been omitted and furthermore, under the Amended Act the person claiming the property purchased in the name of his wife or child is not supposed to prove that the benami property was purchased for the benefit of his wife or child. Therefore, under the Amended Act, the statutory provisions has been dispensed with and secondly the phrase “for the benefit of the wife or the unmarried daughter” has been omitted. As such the other principles excluding the abovesaid factors/considerations (i) i.e. rebuttable presumption, (ii) not for the benefit of wife/unmarried daughter laid down by the Superior Court still hold the field, which the plaintiff is supposed to satisfy this court that those principles are fully applicable to the facts of the present case.

 

64. 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 the name of his daughter, the defendant no. 2 could have still succeeding in defeating the ownership claim of the plaintiff, if she could have establish that the suit property was purchased for her benefit. (However, under the Amended Act the word for “the benefit of the wife or the unmarried daughter” stands omitted in section 2(9) of the Amended Act.) Neither this plea has been taken in the written statement nor evidence has been lead in this regard by defendant no. 2. The conduct of the parties also did not establish that the suit property has been purchased by the plaintiff for the benefit of defendant no.2. Applying the law laid down by the Hon’ble Supreme Court in the abovesaid decisions to the facts of the case on hand, this court is of the opinion that the suit property was purchased in the name of defendant no. 2 was not Benami in nature. 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.

 

65. The Old Act has been amended vide the Amended Act. Under the Amended Act, the definition of a benami transaction has been changed and the new definition is contained in Section 2(9) of the Amended Act and the present case does not fall under the ambit of the definition of a “benami transaction”, as prescribed under Section 2(9)of the Act and is squarely covered by proviso (iii) to the said definition. The present case thus is not that of a “benami transaction” and hence bar of Section 4of the Act is not attracted in the present case. As per Section 2(9) of the Amended Act what is a Benami Transaction is stated/specified, and also those transactions which are not benami are also stated/specified. As per the suit plaint/averments, in the present case the existence of the properties in the name of the defendant no. 2/daughter/child will fall as an Exception to the prohibited benami transaction in view of Section 2(9)(A)(b) Exception (iii) 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 the defendant no. 2/child in the present case.

 

66. It was argued by defendant no. 2 that as per Section 14of the Hindu Succession Act, the suit property vested in defendant no.2 and hence she has become absolute owner of the suit property. In rebuttal Counsel for the plaintiff has contended that Section 14of the Hindu Succession Act cannot override the provisions of either the Old Act or the Amended Act.

 

67. Section 14of the Hindu Succession Act reads as under :

 

“14. Property of a female Hindu to be her absolute property (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

 

Explanation: In this sub­section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

Nothing contained in sub­section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”

 

68. It was the defence of defendant no. 2 that plaintiff had failed to allege that the suit property though was purchased in the name of defendant no.2 but was not for her benefit alone and further the property was acquired by the defendant no. 2 as per Section 14of Hindu Succession Act, and therefore, suit property vested in her as an absolute owner, hence the suit is not maintainable.

 

69. Though not quoted reliance is placed upon Jupudy Pardha Sarthy vs Pentapati Rama Krishna & Others(2016)2 SCC 56 wherein the Hon’ble Supreme Court has observed as under : ­

 

“18. Lastly, His Lordship after elaborate consideration of the law and different authorities came to the following conclusions:­ “We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:

 

“(1) The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre­ existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre­existing rights.

 

(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio­ economic ends sought to be achieved by this long needed legislation.

 

(3) Sub­section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.

 

(4) Sub­section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre­ existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre­existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub­ section has absolutely no application and the female‟s limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub­section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.

 

(5) The use of express terms like “property acquired by a female Hindu at a partition”, “or in lieu of maintenance”, “or arrears of maintenance”, etc. in the Explanation to Section 14(1) clearly makes sub­section (2) inapplicable to these categories which have been expressly excepted from the operation of sub­section (2).

 

(6) The words „possessed by‟ used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.

 

(7) That the words “restricted estate” used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.”

 

70. The plaintiff in his replication denied that the defendant no. 2 has become absolute owner of the suit property and in addition to it it may be relevant to observe that in Hemant Satti (supra), the Hon’ble High Court has harmonized the provision of Section 14(1)of the Hindu Succession Act with Section 3(2) of the Old Act (as it existed before the 2016 amendment) and it was observed that a challenge to the right of a woman under Section 14 of the HSA is entertainable if it is proved that the property purchased in the name of a woman was not for her benefit.

 

71. So far as the provisions of the Amended Act are concerned, the legislators while recognizing and maintaining the said exception contained in Section 3(2) and 4(3) of the Old Act, for abundant clarity, by virtue of Section 2(9)(A)(b)(ii)and Section 2(9)(A)(b)(iii) of the Amended Act, specifically excluded transactions of the nature pleaded by the plaintiff from the very definition of Benami Transactions. Given this position and there not being any disharmony between the provisions of the Old Act and the Amended Act insofar as the aforesaid exception is concerned, the ratio decendi of the Hemant Sati (supra) will, apply to cases covered by the Amended Act as well. In view of the above, discussion the contention of defendant no. 2 the daughter has become absolute owner of the suit property deserves to be rejected in view of the law laid down by the Superior Courts. These issues are decided according in favour of the plaintiff and against the defendants.

 

72. The Limitation Act, 1963 prescribes time limit for all conceivable suits, appeals etc. Section 2(j)of that Act defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. other words, the residuary article is applicable to every kind of suit not otherwise provided for in the Schedule.

 

73. So far as the question of limitation is concerned issue no. 1 has been framed and onus to prove this issue was on the plaintiff, otherwise it is a question of law and court is duty bound to dismiss the suit in case the suit is barred by limitation. It may be noted that in Part III of the Schedule to the Limitation Act, 1963 deals with Suits Relating to Declarations’. Article 56thereunder provides the limitation of three years for a suit to declare the forgery of an instrument issued or registered, commencing from the date when the issue or registration becomes known to the plaintiff. Article 58also provides a limitation of three years for a suit to obtain any other declaration commencing from the date when the right to sue first accrues. Notice may also be taken of Article 59 under Part IV titled Suits Relating to Decrees and Instruments’ which provides limitation of three years for a suit to cancel or set aside an instrument or decree or for the rescission of a contract, commencing from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to the plaintiff.”

 

74. Article 58of the 1963 Act, which has relied upon by plaintiffs to be applicable to the present suit, reads as under:

 

“XXXXX PART III ­ SUITS RELATING TO DECLARATIONS

 

58. To obtain any other declaration : Three years When the right to sue first accrues.”

 

24. The differences which are discernible from the language of the two articles i.e. namely Article 120of the Limitation Act1908 and Article 58 of the Limitation Act 1963, is that firstly, the period of limitation prescribed under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed under the 1963 Act is three years and, secondly Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed under Article 58 begins to run when the right to sue first accrues. The right to sue under Article 120 of the 1908 Act accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.

 

75. It may be noted that while enacting Article 58the 1963 Act, the legislature has designedly made a departure from the language of Article 120of the 1908 Act. The word ‘first’ has been used between the words ‘sue’ and ‘accrued’. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.

 

76. In the light of the above, it is to be seen as to when the right to sue first accrued to the plaintiff. The sale deed was executed on 03.11.2007 in favour of defendant no. 2 when plaintiff was in judicial custody and it is not the case of the defendant no. 2 that from the same day, the factum of execution of defendant no. 2 was in the knowledge of plaintiff. The plaintiff was in judicial custody till 2009 as pleaded by plaintiff and as per the averments in the plaint, the plaintiff has pleaded that the defendants have threatened him that defendants will deprive plaintiff from enjoying his properties including the suit property, therefore the cause of action is a matter of fact has first accrued to the plaintiff when defendant threatened in the month of September 2016 when his rights of the suit property was unequivocally threatened by the plaintiff, therefore the suit filed by the plaintiff on 11.11.2016 is clearly within the period of limitation of three years prescribed under Article 58of the Limitation Actis not barred by time. However, this Article 58 is not applicable to the facts of the present suit.

 

77. In addition to it, may also be relevant to mention here that the plaintiff has filed the present suit for possession on the basis of title in as much as his claim, is that he is the owner of the suit property and pursuant to such title he claimed possession thereof and Hon’ble High Court of Delhi in JM Kohli v. Madan Mohan Sahni & Anr., Judgmentpassed in RFA no. 207/2012 has observed that right to sue for possession of an immovable property arises within 12 years of the possession being adverse to the actual owner in terms of Article 65of the Limitation Act, 1963, therefore, as per the mandate of the above said law, limitation for filing of the suit is twelve years and present suit has been filed within limitation. This issue is accordingly decided in favour of the plaintiff and against the defendants.

 

78. These issues are overlapping each other and, therefore, disposed of by this common order. In view of the findings recorded on issues nos. 2, 3 & 4 in favour of plaintiff in as much as the transaction in question whereby the suit property was purchased in the name of defendant no. 2 cannot be termed as Benami Property under the Amended Act, nor the provision of section 14of the Hindu Succession Act are found to be in favour of defendant no. 2 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 the name of defendant no. 2. Therefore, these issues are also decided in favour of the plaintiff and against the defendants.

Relief:

 

79. 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 as the actual owner of the Flat No. 511, CGHS Supriya Apartments, Plot No. 20, Sector 10, Dwarka, New Delhi­110075,

 

(b) Decree of permanent injunction is passed in favour of the plaintiff thereby restraining the defendants and their agents from creating any third party interest in the suit property,

 

 

(c) Decree of mandatory injunction is passed in favour of the plaintiff thereby directing the defendants, their accomplices and agents to handover the peaceful possession of the suit property,

 

(d) Plaintiffs is also entitled to cost.

 

Decree sheet be prepared accordingly.

File be consigned to record room.

Digitally signed

DR VIJAY         by DR VIJAY

KUMAR DAHIYA

Announced in the open court on                        KUMAR            Date:

16th Day of May, 2020.                                DAHIYA           2020.05.18

16:00:08 +0530

 

(V.K. DAHIYA)

ADDL.DISTRICT JUDGE­01 (SOUTH WEST)

DWARKA DISTRICT COURTS: NEW DELHI.