REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF RESERVE: February 16, 2010 DATE OF DECISION: May 31, 2010 + RFA 301/2008 and CM No.9982/2008 SUNITA RAJPUT & ORS ..... Appellants Through: Mr. J.P. Sengh, Sr. Advocate with Mr. S.K.Bhaduri, Advocate. versus YOGENDER RATAWAL & ORS ..... Respondents Through: Mr. K.R. Gupta, Advocate for the respondents No.1 to 3. CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. 1. The appellants in this appeal seek to assail the judgment and decree dated 12.05.2008 passed by the learned Additional District Judge, Delhi whereby and whereunder the learned Additional District Judge by a decree passed in this behalf directed the appellants to hand over the possession of the suit premises bearing No.2153, Naiwalan, Karol Bagh, New Delhi–110005 to the respondents No.1 to 3 by allowing the application of the said respondents RFA 301/2008 Page No. 1 of 22 under Order XII Rule 6 of the Code of Civil Procedure. 2. The facts relevant for the disposal of the present appeal as set out in the plaint are that the respondent No.5 Smt. Vidya Wati, since deceased, was the absolute owner in possession of the suit property bearing Municipal No.2135, 2136 and 2153, Nai Walan, Karol Bagh, Delhi by virtue of a registered sale deed dated 11.01.1972 executed in her favour. The respondent No.5 Smt. Vidya Wati sold the said property to the respondents No.1 to 3 by executing two sale deeds, both dated 19.06.1996 in favour of the respondent No.1 and the respondents No.2 and 3 respectively. Simultaneously, with the execution of the said registered sale deeds in favour of the respondents No.1 to 3, the respondent No.5 delivered physical possession of the entire first floor of the property to the respondents No.1 to 3 herein. The possession of the ground floor was also delivered by the respondent No.5 to the said respondents except for a room and a kitchen, which she undertook to deliver within 15 days of the execution and registration of the sale deeds. Proprietary rights and symbolic possession of a shop on the ground floor on rent with one M/s. Prakash Automobiles were also delivered to the respondent No.1. 3. Thereupon, the appellants No.2 and 3 through the appellant No.1, their mother, filed a suit bearing No.205/2001 for declaration, permanent injunction and mandatory injunction against the respondents No.1 to 5 inter alia with the RFA 301/2008 Page No. 2 of 22 following prayers: “(a) a Decree of Declaration be passed in favour of the plaintiffs and against the defendants, declaring the sale deeds dated 19.6.1996 executed by the defendant No.2 in favour of the defendants No.3 to 5 as null and void, cancelling the same; (b) a Decree for Permanent Injunction be also passed in favour of the plaintiffs and against the defendants, restraining the defendants No.1 and 2 from handing-over the possession of their room situated on the ground floor of the disputed property which is shown as GREEN in the site plan attached, to the defendants No.3 to 5 and further restraining the defendants from dispossessing the plaintiffs from their respective portions of ground floor of the disputed property No.2153, Gali No.60, Naiwala, Karol Bagh, New Delhi-5 which are shown as RED in the site plan attached illegally and forcibly or otherwise without due process of law and further restraining the defendant No.1 and 2 from selling, transferring and parting-with the possession of the disputed property to anyone without prior division of the disputed property; (c) a Decree for mandatory injunction be also passed in favour of the plaintiffs and against the defendants No.3 to 5, directing them to restore the peaceful, physical and vacant possession of the entire first floor of the disputed property No.2153, Gali No.60, Naiwala, Karol Bagh, New Delhi-5 to the defendants No.1 and 2 in the interest of justice.” 4. It was alleged in the said suit that the suit property was not the self- acquired property of the respondent No.5 Smt. Vidya Wati nor the respondent No.5 was the owner of the same. The property had been purchased by the late grand father of the appellants No.2 and 3 (the plaintiffs in the said suit) Shri Bhim Singh Rajput in the name of his wife Smt. Vidya Wati on 11.01.1972. RFA 301/2008 Page No. 3 of 22 Smt. Vidya Wati was the benami owner of the disputed property and she had no right to sell the disputed property to anyone without prior division of the said property among the legal heirs of the deceased owner Shri Bhim Singh Rajput. Smt. Vidya Wati, it was alleged, had sold the disputed property to the respondents No.1 to 3 illegally in order to push the appellants out of the said property and to grab their share. 5. A written statement to the aforesaid suit was filed on behalf of the defendants No.1 and 2 (Shri Ashok Rajput and Smt. Vidya Wati, the respondents No.4 and 5 herein) denying the allegations made in the suit, but admitting that the husband of Smt. Vidya Wati had invested the money in the purchase of the property in question in the name of Smt. Vidya Wati. A written statement was also filed by the defendants No.3 to 5 in the said suit (the respondents 1 to 3 herein) to the effect that they were bonafide purchasers of the suit property. 6. On a consideration of the pleadings of the parties, the learned Additional District Judge in the said suit framed the following preliminary issue: “(i) Whether the suit is barred by Section 4(1) of the Benami Transaction Act, 1988?” 7. The said preliminary issue was decided by the judgment and order of the learned Additional District Judge dated 15th January, 2002, the relevant RFA 301/2008 Page No. 4 of 22 portion of which reads as under: “22. The question raised is whether the suit is barred under the provisions of Benami Transaction Act, 1988. The second question raised is whether suit is hit by the principles of res judicata and constructive res judicata. In this regard we need to delve into the contentions put forth by the parties. Section (4) of the Benami Transaction Act reads as under:- Section 4: Prohibition of the right to recover property held benami:- (1) No suit claim or action to enforce any right in respect of any property held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply:- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity; and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 23. Section 2(a) of the Benami Transaction (Prohibition) Act defines benami transaction as RFA 301/2008 Page No. 5 of 22 “any transaction in which property is transferred to one person for a consideration paid or provided by another person”. The word “provided” in the said clause cannot be construed in relation to the source or sources from which the real transferee made up funds for buying the sale consideration. The words “paid or provided” are disjunctively employed in the clause and each has to be tagged with the word “consideration”. The correct interpretation would be to read it as “consideration paid or consideration provided”. If consideration was paid to the transferor then the word provided has no application for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transaction ready payment of consideration might not have been effected and then provision would be made for such consideration. The word “provided” in Section 2(a) of Benami Transaction (Prohibition) Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g. a purchaser of land might have availed himself of loan facilities from financial institutions to make up purchase money. Could it be said that since the money was provided by the financial institution it was a benami transaction. 24. Thus the word “provided” in Section 2(a) cannot be construed narrowly. So even if appellant-landlord had availed himself of the help rendered by his father for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Transaction (Prohibition) Act as held in Pawan Kumar Gupta vs. Rochiram Nagdeo, AIR 1999 SC 1823. In view of the RFA 301/2008 Page No. 6 of 22 above it cannot be said that if the late Shri Bhim Singh Rajput provided the consideration, the property would necessarily be Benami. 25. The learned counsel for plaintiffs has relied on Nand Kishore Mehra vs. Sushila Mehra, 59 DLT 497 to support his contention. It has been held in the said case where property has been purchased in the name of wife or the daughter, suit filed or taking of defence in respect of benami transaction is not prohibited. 26. The property in question was purchased by the defendants No.3 to 5 in 1996 vide sale deed signed by Vidya Wati wife of Shri Bhim Singh Rajput. 27. The present suit has been filed after coming into force of Benami Transaction (Prohibition) Act, 1988. Section 4(i) of the Act states that no suit claim or action to enforce any right held against a benami person in whose name property is held or against any other person lies or on behalf of any person claiming to be the real owner of the property. As such Section 4(i) of the said Act specifically prohibits the present suit. Supreme Court after consideration of earlier judgment in Mithlesh Kumari vs. Prem Bihari Khare, 1989 (2) SCC 95 enunciated in Om Prakash and Ors. vs. Jai Prakash, 1992 SCC 710 that the provisions of Benami Transaction Act would apply to properties which had been purchased benami in the name of persons other than the real owners. Under the provisions of Section 4(1) no suit claim or action to enforce any right in terms of any property held benami against the persons in whose name property is held or against any person shall lie by or on behalf of persons claiming to be the real owner of property. Section 4(1) as such specifically prohibits the filing of the present suit. 28. It is undisputed fact that the owner of the property was Smt. Vidya Wati wife of Sh. Bhim RFA 301/2008 Page No. 7 of 22 Singh Rajput but for the plaintiffs to bring the suit under the provisions of Benami Transaction (Prohibition) Act have to show contrary intention for the purchase of the property, and prove accordingly. Sub Section 2 of the Section 3 states as under:- Section 3(2) Nothing in sub section 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 contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter. 29. The question raised is whether the defendant No.2 held the property for the benefit of the coparceners. First and foremost the defendant No.2 should also be a coparcener. Defendant No.2 to be brought under the term coparcener within clause (a) of sub-section 3 of Section 4 of the said Act. Hon'ble Supreme Court has elucidated the concept of coparcenery and coparcener in Surjit Lal Chadha vs. Commissioner Income Tax Bombay, AIR 1976 109 as such “a Hindu coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property namely the sons, grandsons and great grandsons of the holder of the joint property for the time being, that is to say, the three generations, next to the holder in unbroken male descent. In Mitakshara Law, the right to joint family property by birth is vested in the male issues only. Females, who come in only as heirs, to obstructed heritage cannot be coparceners. This position in law has always been understood and holds good till date. The same decision also says that a Joint Hindu Family consists of persons lineally descended from a common RFA 301/2008 Page No. 8 of 22 ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. 30. Therefore as per the said judgment Smt. Vidyawati, defendant No.2 cannot be termed as a coparcener and as such Kumari Swati, the plaintiff No.1 also does not come within the ambit of coparcener and accordingly, Section 4 Sub Section 3 the exception to general rule under clause (a) is not applicable in the present case. The question then would arise whether plaintiff No.2 the male child of Ashok Rajput the grand child of late Shri Bhim Singh Rajput was entitled to claim the relief? The answer would have to be in negative. 31. The plaintiffs at the time of death of Sh. Bhim Singh Rajput were not even born so it cannot be said that the property was held for the benefit of the plaintiffs. For the clause (a) of Sub Section (3) of Section 4 to be applicable the defendant No.2 would have to be a coparcener. Defendant No.2 cannot be termed as a coparcener as at the relevant time Bhim Singh Rajput and Ashok Kumar Rajput were the only two male members of the family and said defendant No.1 has not challenged the sale by defendant No.2. In the suit filed in the Court of Sh. P.K. Saxena, Civil Judge, Delhi, the defendant No.1 was overtly eager in admitting the ownership of Smt. Vidyawati W/o Sh. Bhim Singh. From the facts and circumstances of the case it seems that legitimate right of defendants Nos.3 to 5 is being thwarted on a pretext of a quarrel within the family. 32. The provision was further elucidated in the illustrated suit for partition and possession wherein, a plea of benami property was raised. It was held that Act of 1988 to apply to every suit filed after coming into effect of the Act RFA 301/2008 Page No. 9 of 22 even if transactions was for a period prior to passing of Act, it was not open to plaintiff to agitate in 1996 that suit property was benami in hands of defendant. Suit deserves to be rejected. It was held: An argument was raised by the learned counsel for the plaintiffs that the title deeds of property relate to 1972 and/or earlier and therefore the Act shall not preclude the filing of the suit in 1996. There is a plethora of precedents to the effect that the Act would apply on a construction of the explicit language of Section 4(1) of the Act, to every suit filed after coming into effect of the Act even if the transaction is for a period prior to the passing of the Act. In this view the suit is clearly not maintainable. “In my considered opinion the suit deserves to be rejected at the threshold for the reasons that it is not open to the plaintiffs to agitate, in 1996 that the suit property was Benami in the hands of defendant No.1. This plea is barred under S.4(1) of the Act. No purpose whatsoever will be served in keeping the litigation live; it is not the interest of justice of any of the parties since its consideration has been statutorily barred. I accordingly dismiss the suit.” This proposition was enunciated in Santosh Malik vs. Maharaj Krishan 1999 (82) DLT 862 by Hon'ble Mr. Justice Vikramajit Sen. 33. For the foregoing reasons and as per (82) 1999 page 862 (supra) wherein it was held that no useful purpose would be served if the case as in the present is kept pending in view of there being a total prohibition against filing of suit based on benami transaction. The property not being held by a coparcener for the benefit of other coparceners as per Section 4(3)(a) of the Benami Transaction (Prohibition) Act, the plaintiff is not entitled to any relief and as such the suit of the plaintiff is liable to be dismissed RFA 301/2008 Page No. 10 of 22 under the facts and circumstances of the case. 34. Consequently the suit of the plaintiff is dismissed with no order as to costs. Decree sheet be drawn. File be consigned to record room.” 8. In the above backdrop, the respondents No.1 to 3 instituted the suit from which the present appeal arises, being Suit No.295/04/03 for recovery of possession, mesne profits/damages for use and occupation and perpetual injunction against the appellants No.1 to 3 and the respondents No.4 and 5. The respondents No.4 and 5 chose not to contest the suit and were proceeded ex parte. In the written statement filed by the appellants, it was contended that the respondent No.5 Smt. Vidya Wati had no right or authority to sell the entire property as it was a Hindu undivided family property. It was averred that the property was purchased by her husband late Shri Bhim Singh Rajput with his money. It was further contended that both the sale deeds were for a sum of Rs.1,00,000/- each, totalling Rs.2,00,000/-, while the market value of the property was more than Rs.40,00,000/- in the year 1996. It was stated that the appellant No.1 was the wife and the appellants No.2 and 3 were the minor children of the respondent No.4 and the suit property was the matrimonial home of the appellant No.1, who, along with the appellants No.2 and 3, was staying in the suit property. It was alleged that the respondent No.4, the father of the appellants No.2 and 3, was not providing any maintenance either to them RFA 301/2008 Page No. 11 of 22 or the appellant No.1 and the respondents were in collusion with each other. 9. After the pleadings of the parties had been filed, the respondents No.1 to 3 (the plaintiffs in Suit No.295/04/03) moved an application under Order XII Rule 6 read with Section 151 CPC, relying upon the judgment of the learned Additional District Judge in Civil Suit No.205/2001. It was stated that the said judgment having attained finality and the Court having negated the defence of the appellants (the defendants No.3 to 5 in the suit) that the suit property was a Hindu undivided property by judgment dated 15.01.2002, the present suit was liable to be decreed. 10. Adverting to the provisions of Order XII Rule 6 CPC and concluding that the provisions thereof could be invoked when the defence raised by the defendant even if taken to be correct would not constitute a defence in law, and that admissions could be inferred from the facts and circumstances as was apparent from the use of the word “otherwise” by the legislature, the learned trial court allowed the application under Order XII Rule 6 CPC. Resultantly, as already stated above, a decree for possession was passed in favour of the respondents No.1 to 3 and against the appellants in respect of the suit premises with the direction to the appellants to hand over the possession of the suit premises to the respondents No.1 to 3 on or before 31st July, 2008. 11. Aggrieved by the aforesaid judgment and decree, the present appeal has RFA 301/2008 Page No. 12 of 22 been preferred. Arguments in the appeal were advanced by Shri. J.P. Sengh, Senior Advocate on behalf of the appellants and Shri K.R. Gupta, the learned counsel for the respondents No.1 to 3. 12. The main grievance of Mr. Singh, the learned counsel for the appellants is that the impugned judgment decreeing the suit of the respondents No.1 to 3 under the provisions of Rule 6 of Order XII of the Code is not sustainable in the eyes of law, in that the appellants had not admitted anything in their written statement so as to justify the passing of the decree under Order XII Rule 6 of the Code of Civil Procedure. It was contended that the learned trial court had failed to appreciate that the suit property was the ancestral property of the appellants apart from being the matrimonial home of the appellant No.1, and that the respondent No.4 (the husband of the appellant No.1) had planted the respondents No.1 to 3 only with a view to get the property vacated and to dispossess the appellants. The learned trial court had also failed to take note of the fact that no order against the appellants could have been passed without any evidence having been adduced by the parties. In fact, the appellants had taken a number of objections in their written statement to the maintainability of the suit, including the objection that the learned trial court had no pecuniary jurisdiction to try the suit, and that the sale deeds executed by the respondent No.5 were sham documents. The learned trial court without considering the RFA 301/2008 Page No. 13 of 22 said objections proceeded to pass a decree against the appellants on the basis of its earlier judgment rendered in Suit No.205/2001, which decision could not have been made a ground for the passing of a decree under Order XII Rule 6 CPC in the present suit. 13. Reliance was placed by the learned senior counsel for the appellants on the judgments rendered by this Court, in State Bank of India vs. Midland Industries and Ors. AIR 1988 Delhi 153; Puran Chand Packaging Industrial P. Ltd. vs. Sona Devi and Anr. 154 (2008) DLT 111 (DB); Manisha Commercial Ltd. vs. N.R. Dongre and Anr. 85 (2000) DLT 211 and Crown Commercial House & Ors. vs. ICICI Bank & Ors. 162 (2009) DLT 427, to contend that the respondents No.1 to 3 had failed to make out a case for the passing of a decree under the provisions of Order XII Rule 6 of the Code, whereunder the Court can act only if the admission made by the defendant is clear, unambiguous, unconditional and unequivocal. If a case involves questions which cannot be conveniently disposed of on a motion under this rule, the Court is free to refuse to exercise jurisdiction in favour of the party invoking it. Thus, where the defendants had raised objections which go to the very root of the case, it would be neither proper nor desirable to exercise this discretion and pass a decree in favour of the plaintiff and in such an eventuality the plaintiff would be bound to lead evidence on the specific issues raised by RFA 301/2008 Page No. 14 of 22 the defendants. 14. It was also contended by the learned counsel for the appellants that the judgment dated 15.01.2002, which is the mainstay of the present judgment, was rendered per incuriam, inasmuch as it was contrary to the provisions of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. 15. Rebutting