NAND KISHORE MEHRA Vs. SUSHILA MEHRA

JUDGEMENT

(1.) THE plaintiff filed a suit for declaration. THE plaintiff prayed that he is the true owner of the properties bearing No. B-80, Greater Kailash I, New Delhi and plot No. 9, Anand Industrial Estate, Village Arthala, Distt. Ghaziabad (U.P.) and he be declared as a true owner of these properties. 2. This Court on 28th January, 1992 issued summons and notice to the defendant and also restrained the defendant from selling and parting with possession of the property bearing No. B-80, Greater Kailash I, New Delhi. It may be pertinent to mention that the plainti ff did not press the relief with regard to plot No. 9, Anand Industrial Estate, 672 Village Arthala, Distt. Ghaziabad (U.P.) therefore, this judgment is confined to the property bearing No. B-80, Greater Kailash I, New Delhi. 3. In the plaint it is incorporated that the defendant was married to the plaintiff in the year 1954. It is also disclosed in the plaint that before this marriage the plaintiff was married to one Smt. Bimla (the plaintiff's first wife) and has four sons out of that marriage. Similarly the defendant was also already married. THE plamtiff used to stay in Bombay where he had extensive business including manufacturing industrial units. 4. It is also mentioned in the plaint that the defendant had joined the plaintiff's company as a casual typist in the year 1950. THE plamtiff and the defendant got attracted to each other and decided to marry, although both the plaintiff and the defendant were already married. 5. Since the marriage had taken place before the Hindu Marriage Act. came into force therefore, there was no impediment so far as the plaintiff was concerned. THE defendant had applied for a divorce and got the divorce from her first husband in the year 1953. 6. Since the first wife of the plaintiff and children were living in Bombay and they did not take the marriage of the plaintiff kindly, therefore, the plaintiff decided to take a house on rent at 113, Golf Links, New Delhi in the year 1954 and stayed in the said house in Delhi with the defendant for over 25 years. 7. It is also alleged in the plaint that the plaintiff from his own funds had acquired the property bearing No. B-80, Greater Kailash I, New Delhi for a total consideration of Rs. 50,000.00 . THE construction was completed in the year 1969. After the construction, the house was let out and the rent was received in the name of the defendant. THE plot was purchased by the plaintiff in the name of his wife. THE rent was received partly in the name of the plaintiff and partly in the name of the defendant. 8. It is also disclosed in the plaint that the reason for receiving the rent in the name of the defendant was that the household expenses for the plaintiff's house in Delhi had to be met and the plaintiff had to be mostly away from Delhi in connection with his business. THE defendant was thus receiving the major portion of rent simply for meeting the household expenses. THE defendant was receiving the rent for and on behalf of the plaintiff and really for his benefit as under law and even otherwise the plaintiff was obliged to maintain the defendant, being his wife. 9. It is mentioned that in the year 1988, the plaintiff was away from India and the defendant in his absence shifted her residence from Delhi to Hyderabad. THE reason given by her for shifting to Hyderabad that the plaintiff remained busy in business and she wanted to be near her niece, who had been brought up by the defendant and got married in Hyderabad. It was also mentioned that the real reason of shifting to Hyderabad was perhaps to derive the plaintiff of the properties which were in fact purchased by the plaintiff in her name. 10. It is also incorporated in the plaint that the defendant always treated the plaintiff as the owner of the property until April, 1990 but later on her attitude changed. II. It is reiterated that the plaintiff purchased the plot and had spent amount on construction. THE defendant did not have any source of income so as to purchase the property and construct a palatial house. 673 12. It is also incorporated in the plaint that the defendant has now dishonestly started claiming the ownership of the said house. In this view of the matter, it became imperative for the plaintiff to protect his interest and consequently he filed this suit before this Court. 13. In the written statement filed by the defendant, she had taken a preliminary objection that the suit filed by the plaintiff is not maintainable. This controversy was taken up to the Supreme Court. THE Supreme Court held that the suit filed by the plaintiff is maintainable. THE issue now stands concluded by the Supreme Court. THErefore, this issue requires no discussion. 14. In the written statement, the defendant has incorporated that the purchase price paid for the property emanated from her regular income. She has also mentioned in her written statement that she has been doing business since 1958. THE business income of the defendant was used partly for her household expenditure and the remaining income was saved for the purchase of the said property. It is also mentioned that she had constructed the house on the said plot of land and was receiving the rental income from the said house. 15. 11: may be pertinent to mention that though the written statement was filed by the defendant but she chose not to appear in the Court proceedings after the Supreme Court judgment. THE Supreme Court judgment was decided agianst her on the issue of maintainability of the suit. THE Court ultimately proceeded x-parte against her. 16. THE plaintiff filed evidence by way of an affidavit. All the facts which have been incorporated in the plaint have been reiterated in the affidavit. THE plaintiff filed a large number of documents to establish his claim that the said property was purchased by him and he had carried out the construction on the said plot. 17. THE partition deed dated 7.1.1961 (Exhibit 'A') was also filed by the plaintiff. THE Power of Attorney dated 29.7.1961 was given by the defendant to the plaintiff and all powers including selling and disposing of the said property was given to the plaintiff. 18. THE letter dated 10.12.1960 was written by the plaintiff to the Special Land Acquisition Officer shows that the plaintiff had acquired other properties in the name of the plaintiff. It also shows that the plaintiff is the beneficial owner of the land comprised in the Notification referred in the letter, having purchased the same in or about March, 1959 in the name of his wife Mrs. Sushila N.K. Mehra. THE said letter reads as under: "NANDKISHORE LALCHAND MEHRA C/O. ASHA SILK MILLS PVT. LTD., AGRA ROAD, VIKHROLI, BOMBAY - 79. To THE Special Land Acquisition Officer (2) Bombay & Bombay Suburban Distt., 3, Queen's Barrack, Foreshore Road, Bombay. Sub : Acquisition of land at Kirol under 674 Notification No. LA-B-1632 dated 2nd April, 1960 for the Maharashtra Housing Board. xxxxxxx Sir, Re : Lands at Kirol, Bombay Suburban Distt. S. No. Hissa No. Area 98 2 part 1745 sq. yards 98 4 part 514 sq. yards 98 5 part 332 sq. yards Total 2501 sq. yards With reference to the above, I beg to submit as follows : I am the beneficial owner of the above lands comprised in the Notification referred to above, having purchased the same m March, 1959, in the name of my wife Mrs. Sushila N.K. Mehra. I am the Managing Director of Asha Silk Mills Pvt. Ltd., and also a Director of Usha Dyeing Bleaching & Printing Mills Pvt. Ltd. THE said concerns are private companies of which the shareholders are myself, my bothers and some members of our respective families. I am, as the Managing Director of Asha Silk Mills Pvt. Ltd., in charge of the Management of the business and affairs of the said company. I am also concerned in the management of the business and affairs of Usha Dyeing Bleaching &: Printing Mills Pvt. Ltd., as a Director thereof. Asha Silk Mills Pvt. Ltd, have their Art Silk Weaving Mill at Agra Road, Vikhroli, Bombay, which on an average employees a personnel of about 200 including workmen and other clerical and administrative staff, Usha Dyeing Bleaching & Printing Mills Pvt. Ltd. have their dyeing bleaching and printing factory also at Agra Road, Vikhroli employing on an average a personnel of about 500. THE above lands forming one plot were purchased by me with the express intention of building thereon tenements to provide housing accommodation to the employees of my concern Asha Silk Mills and Usha Dyeing Bleaching and Printing Mills as required under the Factories Law and regulations. With this in view, immediately after the purchase of the said lands. I, on behalf of my and concerns, instructed our Architect Shri T.R. Bhide of the firm of M/s. Jamnadas & Bhide, Architects and Engineers, Medows Street, Fort Bombay, to prepare plans for the construction of suitable tenements thereon for housing our employees. THE plans have accordingly been prepared and submitted to the Bombay Municipal Corporation for the necessary sanction and approval by our said Architect some time back. No sooner the plans are duly approved and sanctioned, the construction work will be started and the tenements when ready will be utilised for housing the employees of the said two concerns. I, therefore, respectfully submit that the said pieces of land mentioned hereinabove may please be excluded from the intended acquisition for the following amongst other reasons: (a) That the lands are intended to be utilised lor construction thereon ot 675 tenements to house the employees of Asha Silk Mills Pvt. Ltd. and Usha Dyeing Bleaching and Printing Mills Pvt. Ltd. as required under the Factories Law and regulations. (b) That a large number of the employees of-the said company are without housing accommodation and the execution of the proposed scheme of building on the said lands will go a long way to relieve their hardship in this respect and thus serve a distinct public purpose. (c) That the object and purpose for which the said lands are required by the Maharashtra Housing Board are similar to the object and purpose for which the same are being utilised by us. Since under the Factories Law and regulations it is incumbent on us to provide housing accommodation to our employees, and a large number of our employees are also in pressing need of housing accommodation, the common purpose, it is submitted, will be better served by excluding the said lands from the intended acquisition and allowing us to put through and complete our scheme of construction for which effective steps have already been taken by us by submitting plans for the approval of the Municipal authorities. (d) That the said lands are situated on one side on the boarder of the entire area intended to be acquired. THEy further form only a small part of the entire area notified for acquisition. It is, therefore, submitted that the lands can be excluded from the intended acquisition without any difficulty or inconvenience. In the circumstances and for the reasons hereinabove stated, I submit that the above mentioned lands should not be acquired and pray that it should be declared that the same are excluded from the intended acquisition. I crave leave to modify or add to the submissions and grounds set out above if so advised. Yours faithfully, I, SUSHILA wife of NANDKISHORE MEHRA, do hereby ratify, confirm and adopt die submissions made hereinabove by my husband Mr. Nandkishore Lalchand Mehra." 19. In this letter the defendant ratified, confirmed and adopted the submissions made by her husband. She had appended her signature on 10.12.1960. 20. It appears that the plaintiff had appeared before the Sub-Registrar. THE plaintiff has also filed i declaration that the plot of land B-80, Greater Kailash I, New Delhi was purchased by her husband, Nandkishore Mehra in her name and she was holding the same trust, for him and for his benefits. It is also mentioned in the declaration that the said house built on plot bearing No. B-80, Greater Kailash I, New Delhi was got constructed by the plaintiff with his own money. THE declaration reads as under : DECLARATION I, Sushila Mehra wife of Shri Nandkishore Mehra residing at 113, Golf Link Area, New Delhi, solemnly affirm : 676 1. That the plot of land B-80, Greater Kailash I, New Delhi was purchased by my husband Shri Nandkishore Mehra, with his money, in my name. 2. That the house on the said plot was also got constructed by my husband Shri Nandkishore Mehra with his own money. 3. That t!ie said house was leased out to Mauritius High Commission by my husband Shri Nandkishore Mehra, in my name. 4. That the abovesaid house, B-80, Greater Kailash-I, New Delhi and other properties, purchased by my husband, Shri Nandkishore Mehra, in my name, I am, holding in trust, for him and for his benefits. NEW DLLHI December 19, 1971. 21. THE contention of the plaintiff is that the rent of the premises in the year 1986 was Rs. 20.000.00 which he was getting from the lessee, the Embassy of People's Democratic Republic of Yemen in India. THE plaintiff was paid Rs. 13,500.00 for the first three months of executing the lease. It is mentioned that Rs. 6,500.00 per month is paid to the plaintiff being the compensation for fixtures and fittings supplied by the plaintiff. 22. THE plaintiff has also produced the letter.No. 813 A/c AKR dated 23.3.1987 from Bank of India. This letter has been sent by Manager of Bank of India to die plaintiff. THE letter reads as under : Khan Market Branch, New Delhi, BANK OH INDIA Ref. No. 8B A/c AKR Date: 23.3.1987. TO WHOMESOEVER IT MAY RELATE This is to certify that cheque No. 217926 dated 1 1.11. 1970 for Rs. 3,00,000.00 drawn in favour of M/s. Rainchand Silk Mills presented to us for payment on 18.11.1970 and was paid to the debit of M/s. Sushila Mehra S.B. A/c. No. 3873. Yours faithfully, sd/- MANAGER 23. THE plaintiff has brought this document to demonstrate that the rent tenancy' received by her was also utilised for the use of his business and other expenditures. 24. THE plaintiff has also incorporated that the title deed and othei documents of the property' have always remained in the possession of the plaintiff and he has pledged them to the Laxini Commercial Bank now merged with the Canara Bank and the documents are still lying with them. 25. Mr. Kataria, the learned Senior Counsel appearing for the plaintiff in support of his case placed reliance on Section '3' of the Benami Transactions (Prohibition) Act, 1988. which reads as under : '3. Prohibition of benami transactions : 677 1) No person shall enter into any benami transaction. (2) Nothing in Sub-section (1) shall apply to the purchase of 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 into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with bo til. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable." According to same, the husband can purchase the benami property in the name of his wife or unmarried daughter, but it would be presumed that the said benami property was purchased for the benefit of the wife or daughter unless contrary is proved. 26. Mr. Kataria submitted that in the instant case the property was purchased by the plaintiff in the name of the defendant (his wife) as benami for his own benefit. He submits that according to Section 3(2) of the said Act, the plaintiff could purchase the benami property in the name of his wife or unmarried daughter for his benefit, in support of his contention, he placed reliance on the judgment of the Hon'ble Supreme Court reported as Jayadayal Poddar (Deceased) through LRs and Another v. Mst. Bibi Hazra and Others; AIR 1974 Supreme Court 171. In the judgment. THEir Lordships have observed as under: "Though the question, whether a particular sale is benami or not, is largely one of the facts, and for determining this question, no absolute formula or add test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering 'the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale, and (6) the conduct of the parties concerned in dealing with the property after the sale." 27. Mr. Kataria submitted that in the instant case, the plaintiff has proved and established the case on all the five points indicated in the jayadayal's case (supra). THE plaintiff's submission on the five points is as follows. (a) Source: It is proved on record by the plaintiff by way of partition deed. Exhibit 'A', copy of application dated 10.12.1960, Exhibit 'C', copy" of the receipt, Exhibit 'D', sale deed. Exhibit 'E' that the plaintiff purchased the properties with his own funds in the name of the defendant and in the purchase of all these properties there was no intention to benefit the defendant but to save the same from his first wife and four sons, and to maintain and run his second house at Delhi. THE plaintiff was already married and was living with his wife and four 678 sons when he married the defendant, as his second wife, in the year 1954. He lived with her in a rented house No. 113, Golf Links at New Delhi. THE plaintiff had purchased a number of properties in Delhi and U.P. THEse documents establish that the plaintiff was a man of substantial means and he was in a position to purchase the said plot and could construct thereon. Whereas, the defendant had joined him as a casual typist and she had no separate source of income. (b) Nature and Possession of the Property after Purchase : After construction on B-80, Greater Kailash-I, New Delhi, the property was let out and the plaintiff was receiving a part of the rent and some portion of the rent was also received by the defendant. It is also established from the documents on record that the rent which was collected by the defendant was also utilised by the plaintiff in his business. This clearly establishes that the plaintiff is in actual physical possession of the property and has total control over the property. (c) Motive, if any for Giving the Transaction a Benami Colour : THE defendant always accepted the plaintiff as an owner of the said property which is clear from her declaration made in 1971. In the declara- tion it was clearly mentioned that she was holding the property purchased by her husband with his money in her name. It is also incorporated that the plaintiff purchased this property in the name of the defendant so that he could protect the same from his first wife and four sons of the plaintiff from his first wife. (d) Position of Parties and Relationships if any Between the Parties : THE plaintiff and the defendant are husband and wife. THE property in question was purchased by the husband (plaintiff) with his money for his benefit but in the name of his wife (defendant). (e) Custody of Title Deeds after the Sale, Conduct of the Parties Concerned in Dealing with tlie Property after the Sale : THE defendant always accepted the plaintiff as the owner of the property. THE property in question was purchased by him in her name and the defendant never expressed any interest either in the property or in the management of the property. THE rent of the property was divided because the plaintiff used to stay out of Delhi for most of the time and for running the household expenses the defendant could rely on the rent received in her name. THE title deeds of the said property for all times remained in possession of the plaintiff. THE plaintiff has pledged the title deeds with the Bank which was never objected by the defendant at any point of time. 28. On consideration of all the totality of the facts and circumstances, it is clearly borne out that the property in question is the plaintiff's benami property, purchased for his own benefit but in the name of the defendant. THE property is meant for the benefit of the plaintiff alone. Only the name of the defendant was used. Under the exception which has been carved out in Section 3(2) of the Act, the plaintiff could acquire the 679 property benami in the name of his wife, the defendant. THE plaintiff has been successful in establishing that he had purchased the said property in the name of the defendant but it was purchased entirely for his own benefit. 29. THE plaintiff has been able to establish his claim whereas, the defendant has miserably failed to prove that she had any source of income from which she could acquire this plot or construct on the same. THE defendant had joined the plaintiff as a casual typist. She had no source of income whatsoever, on consideration of all these facts and circumstances, the plaintiff's suit is liable to be decreed. Accordingly, the plaintiff is liable to be declared, as an owner of the property No. B-80, Greater Kailash-I, New Delhi-48. 30. It may be pertinent to mention that during the pendency of this suit, the defendant had expired and her daughter was brought on record but she also did not appear and was proceeded ex parte in her life-time. THE defendant stopped appearing after the Supreme Court delivered the judgment against her in this case regarding the maintainability of the suit. 31. In view of the aforesaid facts and circumstances the plaintiffs suit is decreed and the plaintiff is declared as an owner of the property No. B-80, Greater Kailash-l, New Delhi. THE Registry is directed to prepare the decree accordingly. In the peculiar fact and circumstances of this case, I direct the parties to bear their own costs. Suit decreed.