SAO No.4 of 2008 1 In the Punjab and Haryana High Court at Chandigarh. Decided on February 11 ,2009. Ram Sarup --Appellant vs. Ghansham Dass and another -- Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Rahul Sharma,Advocate, for the appellant. Mr.Jaswant Jain,Advocate,for the respondents. Rakesh Kumar Jain, J: This appeal is directed against the order passed by the Civil Judge (Junior Division), Hisar dated 4.5.2007 and order passed by the District Judge, Hisar dated 09.1.2008, whereby the application filed by defendant under Order 7 Rule 11 of Code of Civil Procedure (for short,'the CPC') has been allowed. The facts culled out from the available record are that the plaintiff/appellant filed a suit against his real uncle (respondent No.1) and the transferee of the property in question (respondent No.2 SAO No.4 of 2008 2 Smt. Shanti Devi), seeking declaration to the effect that he is the owner in possession of half share of Southern side of plot No.398 measuring 30'x 35' (referred to as the plot in question) situated in Southern Side of Animal Husbandry Cooperative House Building Society Ltd. Sunder Nagar, Barwala Road, Hisar, and the transfer of the entire plot in the name of defendant No.2 by defendent No.1 on 23.5.2004 is illegal. The plaintiff also prayed for mandatory injunction against defendant No.2. restraining her from interfering in his possession to the extent of half share of the plot in question. The plaintiff/ appellant averred in the plaint dated 13.8.2004 that he alongwith respondant No.1 bought the plot in question from the Society in equal share, but due to rules of the Society, allotment letter was issued only in the name of respondent No.1 being member of the Society. Respondent No.1 recognised half share towards Southern side of the plot in question and has executed an agreement himself as well as through his sons dated 11.9.1999 in favour of the plaintiff. It is further averred that because of the rise in price of the plot in question, respondent No.2 secretly without intimation to the plaintiff transferred the entire plot to respondent No.2. in the record of the Society. Since respondent No.2. started publically threatening that she is the owner of the entire plot and SAO No.4 of 2008 3 shall take possession for raising construction, the plaintiff had filed the present suit on 13.8.2004. After putting in appearance in the suit, respondent No.1 filed an application under Order 7 Rule 11 of C.P.C. for rejection of the plaint on the ground that the plaintiff has taken a plea of Benami Transaction which is not permissible after coming into force of the Benami Transaction (Prohibition) Act, 1988 (for short,'the Act') by any person who may be the plaintiff or the defendant. The suit was thus sought to be rejected on the ground of being barred by law. In reply to the aplication, it was inter-alia pleaded that half share of the price of the property was paid by the plaintiff to respondent No.1, who in consideration of the said price agreed to transfer half share of the plot in question vide agreement dated 11.9.1999. Possession of the plot inquestion towards Southern side was handed over to the plaintiff by respondent No.1,who happens to be his real uncle having fiduciary relationship with him. It was also alleged that the plot in question was held by respondent No.1 in fidicuary capacity. The learned trial Court vide its order dated 4.5.2007 allowed the application holding that the allotment letter of the plot in question has been issued only in the name of respondent No.1, SAO No.4 of 2008 4 therefore, the suit filed by the plaintiff is hit by the provisions of the Act, and it cannot proceed in view of the provisions of Order 7 Rule 11 of the C.P.C. Aggrieved against the order of the trial Court, the plaintiff filed statutory appeal, which was also dismissed. Before the appeal could be argued on merit, learned counsel for the respondents raised a preliminary objection regarding the maintainability of the appeal. He contended that the first appeal against the order is not maintainable and that the appellant should have filed a Regular Second Appeal. Faced with this situation, learned counsel for the appellant has relied upon a decision of this Court in the case of Amar Kaur and others Vs. Mehar Singh and others 1995 P.L.J 265, to contend that this Court has jurisdiction to treat the Second Appeal against an order to be a Regular Second Appeal, if the circumstances of the case, equity, good conscience and justice so demand. Before adverting to the preliminary objection raised by learned counsel for the respondents, it is to be seen as to whether facts and circumstances of the case fulfill the principles of equity, good conscience and justice. In this regard, the facts of this case have to be re-appreciated. SAO No.4 of 2008 5 The case of the plaintiff/appellant is that his real uncle (respondent No.1) was the member of the Animal Husbandry Cooperative House Building Society Ltd. He was allotted a plot being a member of the Society. Since he was short of money, he asked the plaintiff to contribute half share of sale consideration which was paid by the plaintiff, but due to rules of the Society, allotment letter was issued only in favour of respondent No.1. At the time of allotment, in order to be fair with the plaintiff, respondent No.1 and his sons executed an agreement in writing dated 11.9.1999 in favour of the plaintiff to the effect that he would be the owner of half share of the plot towards Southern side, but later on, due to rise in price of the plot, respondent no.1 became greedy and dishonest and transferred the entire plot to respondent No.2. Smt.Shanti Devi clandestinely in the records of the Society. Thus, in my view, equity and justice is in favour of the plaintiff. Now the question is whether plaint can be rejected at this stage on the plea of benami. In this regard, learned counsel for the appellant has referred to Section 4 of the Act, which is reproduced below: - “Prohibition of the right to recover property held benami:--(1) No suit, claim or action to enforce any right in SAO No.4 of 2008 6 respect of any property held benami against the person in whose name the property is 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 coparcener 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”. Learned counsel for the appellant has contended that Section 4 (3) (b) of the Act is relevant in the present controversy SAO No.4 of 2008 7 because the question is whether the property has been purchased benami or it stands in the name of respondent No.1 who is a trustee or a person standing in a fiduciary capacity, is a question of fact which could only be decided after the parties are afforded opportunity to lead their respective evidence. Learned counsel for the appellant has also referred to the definition of “Fiduciary Capacity “ as provided in “Black's Law Dictionary” which reads as under:- “One is said to act in a “fiduciary capacity” or to receive money or contract a debt in a “fiduciary capacity”, when the business which he transacts , or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part. The terms is not restricted to technical or express trusts, but includes also such offices or relations as those of an attorney at law , a guardian, executor or broker, a director of a Corporation and a public officer”. I have heard learned counsel for both the parties and have perused the record with their assistance. SAO No.4 of 2008 8 There is no dispute that the appellant and respondent No.1. are closely related being nephew and uncle. The case set up by the plaintiff is that for the purchase of the plot in question, half of the sale consideration was contributed by him. His uncle (respondent No.1) acted in a Fiduciary Capacity when he received money from him for the transaction (allotment of plot) with a clear understanding that the appellant shall be the owner of half share towards Southern side of the plot in question and to ensure the arrangement, respondent No.1 alongwith his sons even executed an agreement dated 11.9.1999. The appellant had given money to his uncle/respondent No.1 when he was in dire need of money having a high degree of good faith in him inspite of the fact that the plot in question was to be allotted only in his name being member of the Society. Thus, I am of the considered view that the learned Courts below have acted illegally and erroneously while rejecting the plaint merely on the ground that the transaction is benami without looking into the facts of the case that as to whether the provisions of Section 4 (3) (b) of the Act, would apply to the present case or not. Thus, finding equity, good conscience and justice in favour of the appellant and applying the ratio of the case in Amar Kaur (Supra), the present appeal is treated as a Regular Second Appeal and the same is hereby SAO No.4 of 2008 9 allowed. The impugned orders passed by both the Courts below are set aside. The trial Court is directed to decide the suit in accordance with law. The parties in person or through their counsel are directed to appear before the trial Court on 20.4.2009. No costs. February 11,2009 (Rakesh Kumar Jain) RR Judge