The main legal point established is that a categorical admission is required for a decree under Order XII Rule 6 of the CPC, and the existence of joint family properties and fiduciary relationship should be decided at trial. The court also clarified that the plaintiff's claims were not barred by limitation and reserved the point for final adjudication.

JUDGMENT

Prateek Jalan, J. - I.A. 15089/2016 in CS(OS) 1834/2014

1. This application has been filed by Smt.Indu Kamboj [defendant no.9 in the suit] for a direction upon the plaintiff to delete certain properties from the schedule of properties in this partition suit. The applicant''s contention is that the property is her self-acquired property and is not susceptible to partition at the instance of the plaintiff. Although the application is styled as one under Order VI Rule 16 of the Code of Civil Procedure, 1908 [hereinafter referred to as "the CPC"], Mr. Anupam Srivastava, learned counsel for the applicant, submits that it be treated as one for judgment upon admission, under Order XII Rule 6 of the CPC. According to learned counsel for the applicant, the character of the properties in question as self-acquired properties of the applicant, have been admitted by the plaintiff.

Facts

2. The applicant Smt.Indu Kamboj is the wife of Sh.Virender Singh Kamboj [defendant no.1 in the suit], who is the older brother of the plaintiff, Sh.Surender Kamboj. The relief claimed by the plaintiff in the suit is principally for partition of various properties, which he contends were purchased out of the joint family funds, earned out of the joint business of the parties. The plaintiff claims 1/3rd share in 19 properties [enumerated in prayer A of the plaint] and 1/9th share in 3 other properties [enumerated in prayer B of the plaint]. Of the 22 properties included in the schedule of properties, the applicant claims that the following properties are her self-acquired exclusive properties:

"i) 25/37, Gali No. 16, Viswas Nagar, Delhi

ii) First floor House No.2425, Tilak Gali, Pahar Ganj, New Delhi-110055

iii) K-217, South City-I, Gurgaon (Hayrana), Customer ID No. 8610641 Unitech Limited South City, Gurgaon."

3. Although the applicant was not originally impleaded in the suit, she applied for impleadment by way of I.A. 12588/2015, which was allowed vide order dated 08.10.2015.

Submissions

4. In support of this application, Mr. Srivastava contended that it is the admitted position that the properties stand in the name of the applicant. He drew my attention to the documents filed in this regard, and submitted that the documents have been admitted by the plaintiff in the course of admission/denial of documents. Mr.Srivastava argued that the plaintiff''s claim, characterizing the suit properties as joint family properties, is untenable in light of Section 4 of the Benami Transactions (Prohibition) Act, 1988 [hereinafter referred to as "Benami Act"]. Although Section 2(9) of the Benami Act makes an exception in cases where fiduciary obligations arise, Mr. Srivastava argued that no pleading in this regard has been made by the plaintiff qua the applicant. Learned counsel, with regard to the interpretation of the term "fiduciary relationship", referred to a judgment of the Coordinate Bench of this Court in Sh.Amar N.Gugnani vs. Naresh Kumar Gugnani (through LRs),2015 SCCOnLineDel 11248 [CS(OS) 478/2004, decided on 30.07.2015].

5. Mr. Srivastava''s second argument was based on the doctrine of limitation. Learned counsel submitted that the declaratory relief sought by the plaintiff is covered by Article 58 to the Schedule of the Limitation Act, 1963, and at least one of the properties was purchased in 1981, while the suit was filed on 02.06.2014 [subsequently amended on 25.09.2014]. It was therefore argued that the institution of the present suit was long after the prescribed period of limitation of three years had lapsed. He cited the judgment of the Supreme Court in Khatri Hotels Private Limited & Anr. vs. Union of India (UOI) & Anr., (2011) 9 SCC 126 [paragraph 27], to contend that the nature of the relief sought in the present case does not give rise to multiple or continuing cause of action, and a suit based thereupon must be filed within three years of the cause of action first accruing.

6. The argument of Mr. Srivastava was supported by Mr. Aditya Sha