Plaintiff must prove ownership or fiduciary duty in property claims; failure to substantiate results in dismissal under the Benami Property Act.

ORDER

Chandra Dhari Singh, J. (Oral)--The instant civil suit has been filed by the Plaintiff seeking partition and rendition of accounts in respect of the following properties:

1. Flat No. 60, Bhagat Singh Market, New Delhi-01

2. Shop No.90, Bhagat Singh Market,New Delhi-01

3. Shop No. 119, Bhagat Singh Market, New Delhi-01

2. The Plaintiff and the Defendants are real brothers and the parents of the parties, i.e. Late Sh. H.K. Gulati and Late Smt. Shanti Gulati, who died intestate on 20th July 1993 and 27th December 2001, respectively.

3. The Plaintiff claims that Late Sh. H. K. Gulati, the father of the parties, was the owner of the property bearing Flat No. 60, Bhagat Singh Market, New Delhi-01, while their mother Smt. Shanti Gulati was the owner of the shop bearing No. 90, Bhagat Singh Market, New Delhi. The Plaintiff submits that apart from the above properties, a shop bearing no. 119, Bhagat Singh Market, New Delhi (hereinafter referred to as the `suit property') was purchased by the father of the parties from one Shri Ramji Dass Chawla in the name of the Defendant No.1 vide a sale deed dated 1st January 1968.

4. The Plaintiff claims that the suit property for all intents and purposes was the property of their father and the Defendant No.1 was holding the suit property merely as a trustee for the entire family of Late Sh. H.K. Gulati and that at the time of the purchase of the said property, the Defendant No.1 was having no funds at his disposal to purchase the suit property.

5. In the written statement filed on behalf of both the Defendants, the claim of the Plaintiff with respect to the following properties was admitted:

1. Flat No. 60, Bhagat Singh Market, New Delhi-01

2. Shop No.90, Bhagat Singh Market,New Delhi-01

6. The relevant portion of the written statements is reproduced below:

"That the contents of Para 6 are only admitted to the exrtent that the Parties are equal share-holders in respect of the Property - Flat No. 60, Bhagat Singh Market, New Delhi. It is respectfully submitted that Defendant No.1 and Defendant No.2 are living in the said flat/suit premises along with their families on IInd and 1st floor of the flat for the last more than 30 years.

It admitted that the Shop No. 90, Bhagat Singh Market, New Delhi was purchased in the name of Late Smt. Shanti Gulati the mother the parties vide Sale Deed and till date stand in her name. The said shop-90, Bhagat Singh Market, New Delhi was given to Defendant No.1 for running his own business and profession."

7. An application bearing I.A. no 3198 of 2010 was filed by the Plaintiff seeking judgment on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as the `CPC') in view of the admissions made by the Defendants in their pleadings. Accordingly, vide order dated 24th November 2010 a judgment on admission was passed by a Coordinate Bench of this Court. The relevant portion of the judgment on admission is reproduced below:

"In so far as the aforementioned two properties are concerned, in my view, Mr Singhal is right that there is an admission in the paragraphs referred to hereinabove of the written statement, these being: paragraph nos. 3, 4, 5, 6&7 of the reply on merits of the written statement. The admission becomes clear when they are read in conjunction with the averments made in the corresponding paragraphs of the plaint. Accordingly, as prayed a preliminary decree in respect of the aforementioned two properties is passed to the extent of the plaintiffs claims of1/3''" share in the aforementioned properties. The application is allowed. The suit is decree