The Benami Transactions Prohibition Act influenced the court's decision by legally barring the plea of benami and establishing the respondent as the owner of the property.

Valmiki J. Mehta, J (Oral)

CM No. 4131/2014 (delay in refiling)

For the reasons stated in the application delay in re-filing is condoned. CM stands disposed of.

Caveat No.221/2014

No one appears for the caveat. Caveat stands discharged.

RSA 69/2014 & CM Nos. 4129/2014 (U/o 41 R 27 CPC) & CM No. 4130/2014 (stay)

1. This second appeal is filed against the concurrent judgments of the courts below; of the trial court dated 15.10.2011 and the first appellate court dated 7.11.2013; by which the suit of the respondent/plaintiff/father for permanent and mandatory injunction has been decreed with respect to the property bearing no.B-12, Sawal Nagar, near Sadiq Nagar, New Delhi.

2. The subject suit was filed by the respondent/plaintiff/father on the ground that the suit property is self-acquired and purchased by him by means of a registered sale deed dated 28.5.1960. The appellants/sons were harassing the father/plaintiff and had even threatened to part with possession, and therefore the subject suit was filed.

3. Appellants/defendants in their written statement took a plea that the property was an ancestral property which was purchased and built by the father of the respondent-plaintiff one Sh. Jiwan Ram i.e. the property was owned by Jiwan Ram who is the grand-father of the appellants/defendants. Appellants/defendants also relied upon a Will of grandfather Sh. Jiwan Ram registered on 13.6.1975 to contend that the suit property was the property of the grandfather. The appellants-defendants also took the defence that the sale deed by which the suit property was purchased by respondent/plaintiff was a benami transaction and actually it is the grandfather Jiwan Ram who was the owner of the suit property and consequently, since the property is ancestral property, appellants/defendants are also co-owners alongwith the respondent/plaintiff/father.

4. After completion of pleadings, the following issues were framed:-

“(i) Whether the suit property Is not the self-acquired property of the plaintiff and is ancestral property? OPD

(ii) Whether the plaintiff has not paid the requisite court fees alongwith the plaint? OPD

(iii) Whether the plaintiff is entitled to the relief for permanent injunction as prayed for? OPP

(iv) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP

(v) Relief.”

5. Issue no.1 has been held in favour of the respondent-plaintiff that the respondent-plaintiff is the owner of the suit property in view of the sale deed Ex.PW1/1. While discussing this issue, the trial court holds that the appellants/defendants failed to prove that the property was a benami property. The relevant observations with respect to issue no.1 are contained in paras 6 to 8 of the trial court’s judgment and which read as under:-

“Issue no.1:- That onus to prove this issue was on the defendants who have claimed that the suit property is the ancestral property. It is not disputed between the parties that the Sale Deed of the suit property Ex.PW1/1 is in the name of the plaintiff. DW4/defendant no.1 in his cross examination admits that the suit property is in the name of his father and the Sale Deed is also in his name. He also admitted that house-tax is assessed in the name of his father and the house tax was assessed as soon as the property was constructed. This fact means that as per the Sale Deed, plaintiff is the owner of the suit property and the onus was on the defendants to show that it was a benami transaction i.e., property purchased from the ancestral funds in the name of the plaintiff. In this regard, it has been suggested to PW1 in his cross examination that at the time of purchasing of property in 1960, he was working as a Khalasi at a monthly salary of Rs.35/- and therefore, it was not even possible for him to purchase the property from his own funds. These facts have been denied by the witness who has claimed that he was working as a fitter at that time and was having sufficient salary to purchas