BABLI BRAR Vs. ADESH KANWARJIT SINGH BRAR

JUDGEMENT

(1.) The present Appeal assails the Order of the learned Single Judge dated 8.4.2011 dismissing the Application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short) for rejection of the Plaint.

(2.) The Suit is one for Declaration, Partition and Permanent Injunction in respect of property situated at Plot No.6 in Block No.172, Jorbagh, New Delhi. The case set-out in the Plaint is that on 29.5.1952, the said Plot was acquired through a Perpetual Lease by Shri Harcharan Singh Brar, father of the Plaintiff. Construction on the said Plot was carried on the double storey residential building in 1955. The contribution of funds for the purchase and construction of this building is said to have come from the father, Late Shri Harcharan Singh Brar, the mother Mrs. Gurbinder Singh Brar and the Plaintiff himself in the proportion of , and respectively, though admittedly the Plaintiff was 3-5 years of age at that point in time. It has further been averred that in the Perpetual Lease whereby Late Shri Harcharan Singh Brar had acquired the said property, he had only lent in his name for the purpose of completing the formalities of executing the Lease Deed. It is stated in the Plaint that Late Shri Harcharan Singh Brar was the Karta of the Brar HUF and by an Order of Sikh Gurdwara Tribunal, Brar HUF was declared to be the owner of agricultural property which was ancestral in nature. Late Shri Harcharan Singh Brar got the said property partitioned in the year 1951 in three equal parts one each to himself, Gurvinder Kaur, his wife and the Plaintiff, Shri Kanwarjit Singh. It is alleged in the Plaint that the Jorbagh property was purchased from these funds. The said property is said to have been let-out on lease from time to time and the rental income was shared by Late Shri Harcharan Singh Brar, Gurvinder Kaur and the Plaintiff in the ratio of , and and the said position regarding the shared ownership of the Jorbagh property is said to be duly reflected by Late Shri Harcharan Singh Brar by his conduct as well as admissions before Income Tax Authorities, Wealth Tax Authorities and Revenue Authorities. It is also averred by the Defendant, Mrs. Babli Brar, sister of the Plaintiff, that Shri Harcharan Singh Brar had gifted the entire property to her predicated on a registered Gift Deed dated 28.1.1999. The Plaintiff has filed the present Suit claiming half together with his proportional share in the interest/title of his father.

(3.) The Appellant before us sought the rejection of this Suit by means of an application under Order VII Rule 11 of the CPC on the ground that the claim of the Plaintiff was essentially that the said property was benami property in the name of the deceased father. It is contended that the Benami Transaction Prohibition Act, 1988 specifically barred any suit, claim and action to enforce any right in respect of any property held benami by a person who claims to be the real owner of the property. Learned Senior Counsel for the Appellant, Dr. A.M. Singhvi, has laid great store on Section 4 of the Benami Transaction Act to contend that the Parliament had consciously put a specific bar not only on benami transactions but had even against claiming any right with respect to a property purported to be held benami; and has proscribed a defence of this nature against the person in whose name the property is held. Dr. Singhvi contends that on a bare perusal of the Plaint, it is clear that since the Plaintiff admits that the property was held in the name of his father, the Suit was not maintainable after the coming into effect of Benami Transaction Act. It is argued that the father s Title even as a benamidar is impervious to any challenge. It is further contended that the learned Single Judge erred in returning the finding that the Plaintiff s case may fall in the exception of Section 4 on the dialectic that the father stood in a fiduciary capacity as the Plaintiff was 3-5 years old when the property was purchased; alternatively, that he acted as a Trustee for the purposes of Section 88 of Indian Trusts Act, 1882. Dr. Singhvi has argued that these factors have not been pleaded and to overcome this lacuna, has applied for leave to amend the Plaint and introduce the ground of fiduciary relationship. Dr. Singhvi has relied on R. Rajgopal Reddy vs. Padmini Chandrashekharan, 1996 AIR(SC) 238 which holds that Section 4(1) and Section 4(2) of the Benami Transactions Act prohibits any suit or action or claim being filed after the commencement of the Act; and that the date of the benami transaction would be inconsequential for the purposes of said statutory bar as the operation of the Act is retrospective. Dr. Singhvi also relies on various Single Judge decisions wherein similar suit has been rejected under Order VII Rule 11 of the CPC on the ground of bar of Section 3 and Section 4 of Benami Transactions Act.