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2020 Supreme(Del) 251
IN THE HIGH COURT OF DELHI AT NEW DELHI
HIMA KOHLI, ASHA MENON, JJ.
IN THE MATTER OF:
Neeru Dhir And Ors. - Appellants
Versus
Kamal Kishore Dhir And Ors. - Respondents
RFA(OS) 73 of 2019 and CM APPL. 35637-35638 of 2019
Decided On : 01-05-2020
For the Appellant :Mr. Prag Chawla and Mr. Rajiv Singh Pilania, Advocates
For the Respondent:Mr. Nilava Bandyopadhyay and Ms. Swati Sinha, Advocates
Headnote:
Benami - Property Dispute - Benami Act, 1988, Section 4(3) - The court discussed the applicability of the Benami Act, 1988, Section 4(3) to the case, and held that the suit ought not to have been rejected outright under Order VII Rule 11 CPC on the ground that the pleas taken by the appellants/plaintiffs are barred under Section 4(3) of the unamended Benami Act. The matter would require a more comprehensive consideration after permitting the parties to lead evidence in the case. The court emphasized that the stage of evidence had not even been arrived at, and only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No.1 stood in a ‘fiduciary capacity’ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act.
Fact of the Case:
The appellants/plaintiffs questioned the judgment dismissing a suit for partition and permanent injunction against the respondents/defendants, claiming entitlement to 1/10th undivided share in a residential premises. The respondents sought rejection of the plaint on grounds including that the suit was barred by limitation and the Benami Transactions (Prohibition) Act, 1988.
Finding of the Court:
The court held that the suit ought not to have been rejected outright under Order VII Rule 11 CPC on the ground that the pleas taken by the appellants/plaintiffs are barred under Section 4(3) of the unamended Benami Act. The matter would require a more comprehensive consideration after permitting the parties to lead evidence in the case.
Issues: The main issue was the applicability of the Benami Act, 1988, Section 4(3) to the case, and whether the suit was barred by the Act.
Ratio Decidendi: The court emphasized that the stage of evidence had not even been arrived at, and only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No.1 stood in a ‘fiduciary capacity’ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act.
Final Decision: The impugned judgment was quashed and set aside, and the suit was restored to its original position for being taken further from the stage at which the impugned judgment was passed.
JUDGMENT :
HIMA KOHLI, J.
1. The appellants/plaintiffs have questioned the judgment dated 23.05.2019, passed by the learned Single Judge dismissing a suit for partition and permanent injunction instituted by them against the respondents/defendants claiming that they are collectively entitled to 1/10th undivided share in the residential premises bearing No.C-324, Vivek Vihar, Delhi.
2. The three appellants/plaintiffs are the successors-in-interest (widow and children) of late Shri Anil Kumar Dhir, brother of the respondents No.1 to 7 and the deceased respondents No.8 and 9. The factual averments made in the plaint have been neatly summarised in para 1 of the impugned judgment. For the sake of convenience, the said para is extracted below:-
“1. The three plaintiffs, namely (a) Neeru Dhir; (b) Nipun Dhir; and, (c) Vatsala Dhir, being the widow, son and daughter of late Anil Kumar Dhir, have instituted this suit for partition of Property No.C324, Vivek Vihar, Delhi – 110 095 and for permanent injunction restraining the defendants from alienating, encumbering or parting with possession of the said property, against the four brothers, three sisters and heirs of another two sisters, of Anil Kumar Dhir pleading that (i) R.P. Dhir father of Anil Kumar Dhir and defendants no.1 to 7 was a government servant and his family was a Hindu Undivided Family (HUF); (ii) during his service period the said R.P. Dhir was living in government accommodation along with his wife and children; (iii) R.P. Dhir, in the year 1966, from his own resources and earnings, “for the welfare and benefit of the family” purchased the land underneath the suit property from Delhi Development Authority (DDA) and in the year 1977 built a single storeyed house thereon; (iv) however at the time of allotment and execution of documents, R.P. Dhir and the defendants decided that “for the convenience sake the title documents/allotment etc. be got executed in the name of the eldest son namely K.K. Dhir i.e. defendant no.1”; (v) thus the suit property was got allotted in the name of defendant no.1; (vi) the defendant no.1 from time to time, in various letters has admitted the said fact; (vii) R.P. Dhir died intestate on 20th December, 1993, leaving five sons and five daughters; (viii) however Anil Kumar Dhir predecessor of the plaintiffs and two of the daughters of R.P. Dhir have also since expired; (ix) the defendants no.1 to 3 have been residing abroad and the defendant no.4 has been residing in government accommodation and the defendants no.5 to 9A have been residing in their matrimonial homes; (x) the three plaintiffs alone are residing in the property and paying charges for electricity, water and telephone therein; (xi) the defendant no.1 had written letters to the DDA as well as Delhi Municipal Corporation that the land underneath the property was purchased by R.P. Dhir in the name of defendant no.1 and construction thereon had also been made by R.P. Dhir from his own funds and that after the demise of R.P. Dhir all his sons were co-owners of the property; (xii) upon the defendant no.1 applying to DDA for converting the leasehold rights in the land underneath the property into freehold in his own name, the plaintiffs objected; and, (xiii) the plaintiffs together have 1/10th share in the property.”
3. Written statements were separately filed by the respondent No.1, respondents No.2 and 3 and respondents No.4 to 9A. Pleadings were completed in the suit. In the meantime, respondent No.1, respondents No.2 and 3 and the respondents No.4 to 9A filed separate applications under Order VII Rule 11 CPC praying inter alia for rejection of the plaint on several grounds, including the ground that the predecessor of the parties i.e., Shri R.P. Dhir did not own any property; that there was no Hindu Undivided Family; that the suit instituted by the appellants is barred by limitation and that the same is also barred by the Benami Transactions (Prohibition) Act, 1988 (in short ‘the Benami Act’
