The main legal point established in the judgment is that to avoid the application of the provisions of the Benami Act, it is essential to establish the existence of a Hindu Undivided Family or a fiduciary relationship, as provided in the exceptions under Section 4 of the Act.

VALMIKI J. MEHTA, J.

C.M. Appl. Nos. 36273-74/2017 (for exemptions)

Exemptions allowed, subject to all just exceptions.

The applications stand disposed of.

C.M. Appl. No. 36275/2017 (for exemption)

Exemption allowed, subject to all just exceptions. On receipt of certified copy of the judgment, the same be filed in this Court.

The application stands disposed of.

C.M. Appl. No. 36272/2017 (for delay)

This is an application seeking condonation of delay of 37 days in filing the appeal.

For the reasons stated in the application the same is allowed and the delay of 37 days in filing the appeal is condoned. C.M. stands disposed of.

RFA No. 852/2017

1. This Regular First Appeal under Section 96 Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the judgment of the trial court dated 27.4.2017 by which the trial court has dismissed the suit as being barred by the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as “the Benami Act”). The suit has been dismissed by rejecting the plaint at the stage of pleadings and without evidence having been led by the parties.

2. The property in dispute is plot no. 37A, Khasra no. 164, Revenue Estate, Village Dindarpur, Delhi, also known as Shyam Vihar, Block E, Najafgarh, Delhi. The plot area is 75 sq. yards. Appellant/plaintiff as per the plaint pleaded that though the suit property was purchased by means of usual documentation being the Agreement to Sell, Power of Attorney, Will, possession letter, etc dated 6.7.2002 in the names of the wives of his nephews, being the defendants, but it was the appellant/plaintiff who had paid the complete consideration amount from his own funds. It was pleaded that the appellant/plaintiff and respondents/defendants were members of a Joint Hindu Family and therefore out of love and affection the documents dated 6.7.2002 were executed in the names of the wives of the nephews of the appellant/plaintiff being the defendants in the suit. Accordingly, in the suit reliefs of declaration, partition, permanent injunction, etc with respect to the suit property were prayed.

3. The trial court has by the impugned judgment dismissed the suit by placing reliance upon Sections 3 and 4 of the Benami Act. The relevant paras of the judgment of the trial court are paras 5 to 11 and 13 and which paras read as under:-

“5. Section 3 of BTA prohibits benami transactions and reads as under:-

“(1) No person shall enter into any benami transaction.

(2) Nothing in this sub-section (1) shall apply to the purchase of the 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.

(3) Whoever enters to 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, an offence under this section shall be non-cognizable and bailable.”

6. Section 4 of BTA, reads as under:-

“(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 to 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.

(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