PR. COMMISSIONER OF INCOME TAX-6, NEW DELHI vs. MAYAR INDIA LTD.

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$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA(OS) 83/2018 & CM APPLs. 51160/2018, 92/2024 and 31469/2024

MAYANK DAYAL & ORS.

..... Appellants Through: Mr. B.B. Gupta, Sr. Adv. with Mr.Amiet Andlay, Mr.Manish Sharma, Mr.Shivam Prajapati, Mr. Achal Gupta, Mr. Karan Jain, and Mr. Arun K. Sharma, Advocates.

versus

SHAKUNTALA DEVI (SINCE DECEASED) THR LRS & ANR

.....Respondents Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr.Ashish Verma and Mr.Kartikay Bhargava, Advocates. Mr.Gaurav Dua, Advocate for DDA.

+ RFA(OS) 84/2018 & CM APPL. 51191/2018

MAYANK DAYAL

..... Appellant Through: Mr. B.B. Gupta, Sr. Adv. with Mr.Amiet Andlay, Mr.Manish Sharma, Mr.Shivam Prajapati, Mr. Achal Gupta, Mr. Karan Jain, and Mr. Arun K. Sharma, Advocates.

versus

SHAKUNTALA DEVI (SINCE DECEASED) THR LRS & ANR

.....Respondents Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr.Ashish Verma and Mr.Kartikay Bhargava, Advocates. Mr.Gaurav Dua, Advocate for DDA. Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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+ RFA(OS) 85/2018 & CM APPL. 51393/2018, CM APPL. 98/2024

VINOD K DAYAL & ORS

..... Appellants Through: Mr. B.B. Gupta, Sr. Adv. with Mr.Amiet Andlay, Mr.Manish Sharma, Mr.Shivam Prajapati, Mr. Achal Gupta, Mr. Karan Jain, and Mr. Arun K. Sharma, Advocates.

versus

SHAKUNTALA DEVI (SINCE DECEASED THR LRS) & ORS

.....Respondents Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr.Ashish Verma and Mr.Kartikay Bhargava, Advocates. Mr.Gaurav Dua, Advocate for DDA.

Date of Decision:18th October, 2024

CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE MINI PUSHKARNA

J U D G M E N T MANMOHAN, CJ:

Introduction: 1. The present appeals arise out of the common judgment dated 02nd November, 2018 passed by the learned Single Judge in three suits between the parties, wherein, the learned Single Judge, dismissed the respective applications of the appellants herein, thereby cancelling the duly registered conveyance deed dated 10th June, 2014, executed by the Delhi Development Authority (“DDA”) in favour of appellant, i.e., Mayank Dayal, and declared Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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late Smt. Shankuntala Devi, the deceased grandmother of the appellant, as owner of the suit property, i.e., C-216, Sarvodaya Enclave, New Delhi. The suit filed by Mayank Dayal was dismissed, while the two suits filed by late Smt. Shakuntala Devi, were decreed in favour of the respondents herein, in the following manner: I. CS(OS) 1640/2014, titled as Shakuntala Devi versus Vinod K Dayal and Others: The impugned judgment has dismissed I.A. No. 20927/2014 filed by the appellants herein (defendants in the suit), under Order VII Rule 11 of Code of Civil Procedure, 1908 (“CPC”), for rejection of plaint, and has decreed the suit in favour of the respondents herein (plaintiffs in the suit). II. CS(OS) 2441/2014, titled as Mayank Dayal versus Shakuntala Devi and Others: The impugned judgment has dismissed I.A. No. 6501/2017 filed by the appellant herein, i.e., Mayank Dayal (plaintiff in the suit), under Order XII Rule 6 CPC, for judgment on admissions, and has also further dismissed the said suit filed by the appellant herein. III. CS(OS) 3631/2014, titled as Shakuntala Devi versus Mayank Dayal and Others: The impugned judgment has dismissed I.A. No. 1003/2015 filed by appellants herein (defendants in the suit), under Order VII Rule 11 CPC, for rejection of plaint, and has decreed the suit in favour of the respondents herein (plaintiffs in the suit). 2. Though a common judgment has been passed by the learned Single Judge in relation to the three suits, three separate appeals have been filed to challenge the said judgment. Case Canvassed by Mayank Dayal (Appellants herein): 3. The facts, as put forth on behalf of Mayank Dayal (defendant in CS(OS) 1640/2014 and CS(OS) 3631/2014; plaintiff in CS(OS) 2441/2014), Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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are as under: 3.1 Maternal uncle of Mayank Dayal, namely, Sh. Balbir Singh Goel, was a member of the Sarvodaya Cooperative Housing Society Limited. He was allotted a plot bearing no. C-216 in the residential colony known as „Sarvodaya Enclave‟ vide a sub-lease executed in his favour on 25th June, 1968. The said plot was lying vacant, as Sh. Balbir Singh Goel was a contractor with the Military Engineering Service (“MES”) and was well settled and residing at Mall Road in Ambala, Haryana. 3.2 Smt. Sudha Dayal, mother of Mayank Dayal, was the youngest sister of Sh. Balbir Singh Goel. Mother of Smt. Sudha Dayal wanted her youngest daughter, i.e., Smt. Sudha Dayal, to reside in her own house in close vicinity to her siblings. Accordingly, Mr. Balbir Singh Goel, out of natural love and affection for his youngest sister, requested the Sarvodaya Cooperative Housing Society Limited to transfer the said vacant plot, bearing No. C-216, Sarvodaya Enclave, New Delhi, in favour of his sister, Smt. Sudha Dayal. Subsequently, the Lieutenant Governor of Delhi approved the transfer of the plot in favour of Smt. Sudha Dayal, which was communicated by the DDA vide letter dated 15th March, 1973. Thus, a perpetual sub-lease was executed in her favour on 28th April, 1973. 3.3 In the year 1974-75, father of the appellant, out of his own earnings and savings, started the construction of the ground floor of the said property. The construction was completed in the year 1976. However, at the request of his grandparents, i.e., Sh. Maheshwar Dayal and Smt. Shakuntala Devi, Mayank Dayal‟s parents permitted his grandparents, i.e., father-in-law and mother-in-law of Smt. Sudha Dayal, to move into the ground floor of the aforesaid property. Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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3.4 Sh. Vinod Dayal, father of Mayank Dayal wanted to construct the first floor. However, Smt. Sudha Dayal started keeping ill health and was diagnosed with Cancer in the year 1983. Thus, parents of Mayank Dayal, in order to secure a better living environment for their family continued to reside at the rented bungalow at 19, Rajpur Road, Delhi along with their children. Ultimately, the construction of the first floor of the said property was started in the year 1985 and the cost of construction was borne by the parents of Mayank Dayal i.e., Smt. Sudha Dayal and Sh. Vinod Dayal. 3.5 Unfortunately, Smt. Sudha Dayal passed away on 09th January, 1987. The construction of the first floor was completed in the year 1987. Sh. Vinod Dayal, along with his daughter and son, i.e., Mayank Dayal, shifted to the first floor of the property in the year 1988. Mayank Dayal has been residing therein since then. 3.6 The lease money, property tax for the entire property that was earlier being borne by father of Mayank Dayal, i.e., Sh. Vinod Dayal, have been paid and borne by Mayank Dayal, since the year 1998. Mayank Dayal has been openly and authoritatively asserting his exclusive ownership rights in respect of the property. As per the policy of the DDA, Mayank Dayal applied for the conversion of the property from leasehold to freehold. After making payment of the charges, and completing all formalities, conveyance deed was executed in favour of Mayank Dayal on 10th June, 2014. 3.7 After more than 42 years of the execution of the perpetual lease deed dated 28th April, 1973, in favour of Smt. Sudha Dayal, and more than 28 years after the death of Smt. Sudha Dayal on 09th January, 1987, Smt. Shakuntala Devi, i.e., mother-in-law of Smt. Sudha Dayal filed CS(OS) 1640/2014, titled as Shakuntala Devi versus Vinod K. Dayal and Others and Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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CS(OS) 3631/2014, titled as Shakuntala Devi versus Mayank Dayal and Others, claiming to be the actual owner of the suit property, which was purchased in the name of her daughter-in-law, Smt. Sudha Dayal. 3.8 Mayank Dayal filed a suit, being CS(OS) 2441/2014, titled as Mayank Dayal versus Shakuntala Devi and Others, praying inter-alia, for decree of possession in respect of the ground floor of the property in question. Case Canvassed by Late Smt. Shankuntala Devi (Respondents herein): 4. The case, as canvassed on behalf of late Smt. Shakuntala Devi, i.e. grandmother of Mr. Mayank Dayal, is as follows: 4.1 Smt. Sudha Dayal, mother of Mayank Dayal, was daughter-in-law of Smt. Shakuntala Devi. Plot bearing no. C-216, Sarvodaya Enclave, New Delhi, was initially allotted to Sh. Balbir Goel, brother of Smt. Sudha Dayal. Smt. Shakuntala Devi wanted to purchase the said property for the benefit of her family. 4.2 Since as per norms of Sarvodaya Cooperative Housing Society, the plot could only be transferred to a blood relative, it was agreed that the plot would be purchased from Sh. Balbir Goel, in the name of Smt. Sudha Dayal, daughter-in-law of Smt. Shakuntala Devi, as she was the sister of Sh. Balbir Goel. 4.3 To facilitate the transaction of purchase of plot, a joint account was opened in the names of Smt. Shakuntala Devi and Smt. Sudha Dayal in the year 1972. This account was opened around the time of the purchase of plot from Mr. Balbir Goel. 4.4 The sale consideration for the purchase of the plot was solely transferred by Late Smt. Shakuntala Devi, from her own personal account, into the said joint account. Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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4.5 In June, 1969, Mother of Shakuntala Devi, had gifted her, a Silver ingot, valued at Rs. 14,355/-. The same was sold for Rs. 17,975.51/- and the said money was deposited in the account of Smt. Shakuntala Devi. Rs. 15,000/- was withdrawn from personal savings account of Smt. Shakuntala Devi and was transferred to the joint account with Smt. Sudha Dayal. 4.6 Thereafter, a sum of Rs. 14,000/- was paid to Sh. Balbir Goel, on 28th November, 1972 towards sale consideration of the plot and the same was acknowledged by him vide letter dated 28th November, 1972, issued to Land and Housing Department, requesting sanction for transfer of the said plot to Smt. Sudha Dayal. 4.7 Subsequently, a sum of Rs. 5,000/- was paid from the joint account to Sh. Balbir Singh, towards sale consideration. After receipt of sale consideration, Sh. Balbir Goel transferred and nominated Smt. Sudha Dayal in the records of Sarvodaya Cooperative Housing Society, on 03rd December, 1972. 4.8 DDA had raised a demand of Rs. 1249.17/- towards non-construction charges upon Sh. Balbir Goel, vide letter dated 14th December, 1972. The same was paid to DDA on 02nd January, 1973, by Smt. Shakuntala Devi from the joint account. 4.9 Subsequently, a perpetual sub-lease was executed in favour of Smt. Sudha Dayal by DDA. Ground floor was constructed on the plot between the years 1973-1975, out of the personal funds of Smt. Shakuntala Devi. After construction of the ground floor, Smt. Shakuntala Devi, along with her husband, Maheshwar Dayal and her other son, Vinay Dayal, moved into the ground floor. 4.10 Joint letter dated 05th April, 1976 was issued by Smt. Sudha Dayal Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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and Sh. Maheshwar Dayal, to Municipal Corporation of Delhi (“MCD”) regarding issuance of completion certificate. 4.11 Letter dated 30th June, 1976 was issued by Smt. Sudha Dayal to DDA stating that she intends to give the property to Smt. Shakuntala Devi, out of natural love and affection. 4.12 Joint letter dated 15th February, 1980 was issued by Smt. Sudha Dayal and Sh. Maheshwar Dayal to MCD regarding issuance of House Tax bills. 4.13 Money was continuously transferred by Shakuntala Devi alone into the joint account, to facilitate the development of the property. The transactions are evident from various cheque book foils and pay-in-slips. 4.14 Payments towards Sarvodaya Cooperative Housing Society and towards house tax, were made out of the account jointly held by Smt. Shakuntala Devi and Sh. Maheshwar Dayal. Lease money receipts were also issued by Sarvodaya Cooperative Housing Society, in the names of Smt. Sudha Dayal and Maheshwar Dayal. 4.15 Disputes arose in the year 2014, when Sh. Vinod Dayal, father of Mayank Dayal and husband of Smt. Sudha Dayal, started claiming absolute ownership of the property in question and threatened to sell the property. In these circumstances, Smt. Shakuntala Devi was constrained to file CS(OS) 1640/2014, and CS(OS) 3631/2014. Factual Matrix: 5. During the pendency of the three suits, Mayank Dayal filed applications under Order VII Rule 11 CPC, being I.A. No. 20927/2014 and I.A. No. 1003/2015 respectively, for rejection of plaints in the suits filed by Smt. Shakuntala Devi, i.e., CS(OS) 1640/2014 and CS(OS) 3631/2014. Mayank Dayal further filed an application under Order XII Rule 6 CPC, in Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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the suit instituted by him, i.e., CS(OS) 2441/2014, praying for decree of possession in respect of the ground floor of the property in question. 6. By the impugned common judgment dated 02nd November, 2018, the learned Single Judge dismissed all the respective applications filed by Mayank Dayal, i.e., under Order VII Rule 11 CPC and under Order XII Rule 6 CPC. While doing so, the learned Single Judge, dismissed the suit of Mayank Dayal, i.e., CS (OS) 2441/2014 and decreed the suits of Smt. Shakuntala Devi, i.e., CS(OS) 1640/2014, and CS(OS) 3631/2014, thereby, declaring Smt. Shakuntala Devi, as the „Benami‟ owner of the suit property and cancelled the registered conveyance deed dated 10th June, 2014 executed by the DDA in favour of Mayank Dayal. 7. Both the parties advanced lengthy arguments before this Court. While Mayank Dayal prayed for setting aside of the impugned judgment dated 02nd November, 2018, learned counsel appearing for Shakuntala Devi prayed for dismissal of the appeals filed by Mayank Dayal. Submissions on behalf of Appellants: 8. On behalf of appellants, following submissions have been made: 8.1 In the suit, i.e., CS(OS) 1640/2014, filed by the respondents herein, it was pleaded that Smt. Sudha Dayal (daughter-in-law), was the trustee of Smt. Shakuntala Devi (mother-in-law), solely on the ground that the consideration for the alleged purchase of the plot was allegedly made by mother-in-law. The said contentions made in the plaint were specifically refuted by the appellants herein in the written statement filed in CS(OS) 1640/2014. 8.2 The second suit filed by respondents herein, i.e., CS(OS) 3631/2013, was filed on the basis of the same submissions as the first suit. A detailed Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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written statement was filed by the appellants herein, specifically denying every averment, even pointing out the inconsistencies and contradictions in the documents filed and relied by the respondents herein. 8.3 As recorded in the order 1st August, 2015, the appellants denied all the documents filed by the respondents. Thus, the impugned judgment could not have been passed relying upon the same. 8.4 In reply to the application, I.A. 6501/2017 in CS(OS) 2441/2014 filed by appellants herein under Order XII Rule 6 CPC, the respondents herein had stated in categorical terms that the suit needs a detailed trial to determine the correct factual position. 8.5 Undisputedly, all the documents of title from 1973 onwards, have been in the name of Mrs. Sudha Dayal and/or her legal heirs, with no claim to the contrary by anybody, till filing of the first suit in 2014, i.e., after more than 41 years (1973-2014). Further, the respondents had even sought written permission from the legal heirs of Mrs. Sudha Dayal, namely, Mr. Mayank Dayal, for the installation of the electricity meter. 8.6 DDA being the perpetual lessor, recognised only Smt. Sudha Dayal, and after her death, her legal heirs. The property could have been transferred only in the name of blood relative of Shri Balbir Singh, and Smt. Sudha Dayal being his sister, could only be the real owner. If the real owner is to be taken anybody else other than the blood relative, then, the same may amount to circumventing and/or abusing or misusing the law, which may have cascading effects. 8.7 The impugned judgment proceeds on the incorrect premise and the learned Single Judge manifestly misdirected in passing the same, since nothing else, but “Trusteeship” was pleaded. However, the learned Single Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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Judge has travelled from “Trusteeship” to “Fiduciary”, and the property being for the family‟s benefit. 8.8 The learned Single Judge has proceeded to decide the matters erroneously, as if they were being decided after recording the evidence of the parties, and that too accepting and inferring that the documents filed by Smt. Shakuntala Devi, being in original, are irrefutable, even though Smt. Shakuntala Devi could not be cross-examined for reasons of her old age and unfortunate death. 8.9 A bare perusal of Section 90 of the Indian Evidence Act, 1872 (“Evidence Act”) (now repealed), would clearly go to show that in terms thereof, merely a presumption is raised to the effect that signature and every part of such document, which purports to be in the handwriting of a particular person, is in that person‟s handwriting. The Section nowhere provides that in terms thereof, the authenticity of the recitals contained in any document is presumed to be correct. It is open to the parties to raise a plea, contrary thereto. 8.10 The Rule laid down in Section 90 of the Evidence Act is to be applied with special care and caution, as nothing can be easier than for an unscrupulous person to forge the documents in his own favour more than thirty years old, and then produce them in Court, and say that he is relieved from the necessity of proving the execution of the documents. 8.11 In the present case, the presumption under Section 90 of the Evidence Act, is to be applied with special care and caution, in view of the inconsistencies and contradictions in the documents filed and relied on by the respondents herein, and pointed out in the written statement filed by the appellants herein in CS(OS) 3631/2014. Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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Submissions on behalf of Respondents: 9. On behalf of Smt. Shakuntala Devi (now deceased), it is contended as follows: 9.1 Shakuntala Devi purchased the suit property for the residential needs of the family. Since the property could only be transferred to a blood relation, therefore, a decision was taken to purchase the property in the name of Sudha Dayal, though the funds were to be provided by Shakuntala Devi. It is an admitted case that no funds were contributed by Sudha Dayal. 9.2 A joint account was opened in the name of Shakuntala Devi and Sudha Dayal, in which the entire funds were contributed by Shakuntala Devi. 9.3 The sale consideration was paid to Balbir Singh Goel from the joint account, in which the entire funds were contributed by Shakuntala Devi. Sudha Dayal does not even claim to have contributed any amount. The property was constructed from the funds provided by Shakuntala Devi. On completion of the construction of the property, Shakuntala Devi, her husband and one son started residing in the property. Sudha Dayal did not reside in the property during her life time, nor did she or her family make any claim of ownership. 9.4 The property was shown in the Income Tax Returns by Shakuntala Devi, as her property. On the contrary, Sudha Dayal never claimed the property as hers in her Tax Returns. 9.5 Admitted documents like the bank passbook of the joint account, payment into the joint account by Shakuntala Devi, receipt of consideration by Balbir Singh Goel, and payments towards construction in original, are already part of the record. Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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9.6 The property was purchased by Shakuntala Devi in the name of Sudha Dayal, her daughter-in-law, in a fiduciary capacity. Thus, the transaction is not hit by Section 4 (1) of the Benami Transactions (Prohibition) Act, 1988. 9.7 An issue was framed by the Trial Court regarding whether the property was a „Benami‟ transaction, or it is the property of Shakuntala Devi, at the instance of the appellant. It is the appellant who filed an application, being I.A. 6501/2017 for a decision of the entire suit by deciding the aforesaid preliminary issue. In reply, the respondent had stated that the matter would require a trial. The appellant opposed the same and now, cannot resile from his stand. 9.8 No gift deed from Mr. Balbir Singh Goel in favour of Smt. Sudha Dayal, mother of Mayank Dayal, was produced by the appellants herein. During the course of arguments before the learned Single Judge, the appellants herein, had admitted that the payments for the property had been made by Smt. Shakuntala Devi. In light of the admission of the appellants herein, based on the settled legal position, the learned Single Judge rightly proceeded to dispose of the suits by way of the impugned judgment. 9.9 Contention of the appellant that the findings of the learned Single Judge could not have been arrived at without a trial, is misplaced, as the appellant himself had sought an adjudication without a trial, and had opposed the contention of the respondent, that the matter be put to trial. 9.10 Having consented to the decision of the suit by deciding the preliminary issue, the order being a consent order to that effect, no appeal would lie against the said consent. The learned Single Judge having been called upon to decide issue no. 4 as a preliminary issue, rightly found that the property had been purchased by Smt. Shakuntala Devi. Consequently, Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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the suits were rightly decreed, as the remaining issues did not survive for further consideration. 9.11 The preliminary issue, i.e., “whether the defendant no. 1 is the actual owner of the property which was held by Smt. Sudha Dayal as trustee of the defendant no. 1?” goes to the root of the dispute in all the three suits, and results in finality in so far as the reliefs prayed in all the said suits. As such, after deciding the said issue against the appellant herein, the learned Single Judge rightly dismissed the suit of the appellant, i.e., CS(OS) 2441/2014, and partially decreed the other two suits filed by respondents, i.e., CS(OS) 1640/2014 and CS(OS) 3631/2014. 9.12 The learned Single Judge correctly held that the bar under Section 4(1) of the Benami Transaction (Prohibition) Act, 1988, does not apply in the present case, as it is protected under Section 4(3)(b) of the Act. 9.13 The learned Single Judge has rightly considered the documents placed on record by Smt. Shakuntla Devi. This discretion was correctly exercised in view of the fact that the documents tendered in evidence are original, and also in view of the statutory presumption in their favour under Section 90 of the Evidence Act, in view of the said documents being more than thirty years old. 9.14 Learned Single Judge rightly held that the evidence is overwhelming and pointing to the fact that Smt. Sudha Dayal always had trust in her mother-in-law, and that the suit property was held by her on behalf of her mother-in-law, for the benefit of the entire family and is not the exclusive property of Shri Mayank Dayal. Findings and Analysis: 10. We have heard learned counsels for the parties and have perused the Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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record. 11. At the outset, this Court notes that in the suit filed by Mayank Dayal, i.e., CS(OS) 2441/2014, the following issues were framed vide order dated 14th October, 2015: “1. Whether the plaintiff is entitled to the possession of the property bearing No. C-216, Ground Floor, Sarvodya Enclave, New Delhi from the defendant? OPP

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against the spirit of living together for the last 40 years. The family of Smt. Sudha Dayal, in whose name the property was actually reflected in the records, did not move into the property till 1987. Till then it was in the exclusive possession of Smt. Shakuntala Devi, her husband and younger son Mr. Vinay Dayal. All these facts go to show that the property was purchased for the benefit of the whole family and not for the exclusion of any member.

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dated 16"' April, 2018] wherein the Supreme Court declared the property to be a family property and not an exclusive property of the Plaintiff who was one of the coparceners. The extracts from the said judgment are set out below:

"15. The bare readings of the aforesaid provision contained in Section 4(3) of the Act makes it clear that where a person in whose name a property is held as coparcener in a Hindu Undivided Family and the property is held for the benefits of the coparcener in the property, provisions of Section 4 containing prohibition of the right to recover the property held benami would not be applicable. The bar of the Act is not applicable to a transaction as contained in section 4(3)(a) and (b). If the property, is held in fiduciary capacity or is held as a trustee for the benefits of another person for whom, he is a 'trustee or towards whom he stands in such capacity. Thus, the provision of Act could not be said to be applicable in the instant case.

………………………………

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Dharampal for allotment of the land to the DDA and obviously, it was paid in 1963 by Kashmiri Lai. The money was also spent in construction by the father Kashmiri Lai. Occupation and enjoyment of the house were with the entire family right from the beginnings and till today the family is residing in the house. Apart from that, the plaintiff has admitted that when he came to Delhi on posting at All India Institute of Medical Sciences, he started living in the rented accommodation, as there was a paucity of accommodation for his stay in the house in question. Thus, all the facts and circumstances indicate that it was a family property and not the exclusive property of the plaintiff - Dharampal. Thus, the Courts below have acted not only perversely but in a most arbitrary and illegal manner, while accepting the ipse dixit of the plaintiff and in decreeing the suit. Such finding of facts which are impermissible and perverse cannot be said to be binding. The legal inferences from admitted facts have not been correctly drawn.

xxx xxx xxx

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xxx xxx xxx

RELIEFS IN THE THREE SUITS;

A. Suit no. 2441/14: Mayank Dayal v. Shakuntala Devi & Ors.

"Whether the defendant No. 1 is the actual owner of the property which was held, by Smt. Sudha Dayal as trustee of defendant No. 1?"

It is held that Smt. Sudha. Dayal, being the daughter in law of Smt. Shakuntala Devi was in a fiduciary relationship with her mother in law and held the property in trust on her behalf for the benefit of the entire family.

37.…………………

B. Suit no. 1640/14; Smt. Shakuntala Devi v. Vinod K. Dayal & Ors.

C. Suit no. 3631/2014: Smt. Shakuntala Devi v. Mayank Dayal & Ors.

Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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xxx xxx xxx” (Emphasis Supplied)

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to only ascertaining whether on the allegations, there exists a case for rejection of the plaint on any grounds as given in order VII Rule 11 CPC. If the Court does not find any grounds for rejection of the plaint, then the Court is within its authority and jurisdiction to dismiss the application for rejection of plaint. 15. However, in the present case, the learned Single Judge erred in proceeding to deal with the merits of the case at the time of considering the applications for rejection of plaint. The issue, whether title as traced by Smt. Shakuntala Devi, i.e., plaintiff in CS(OS) 1640/2014 and CS(OS) 3631/2014, is a legally acceptable one or not, could have been considered only after trial. Therefore, while dismissing the applications for rejection of plaint, the learned Single Judge ought to have put the suits for trial, and not consider the merits of the case. 16. Holding that no amount of evidence or merits of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 CPC, Supreme Court in the case of Eldeco Housing and Industries Limited Versus Ashok Vidyarthi and Others, 2023 SCC OnLine SC 1612, has held as follows: “xxx xx xxx 17. In Kamala v. K. T. Eshwara Sa, this Court opined that for invoking clause (d) of Order VII Rule 11 CPC, only the averments in the plaint would be relevant. For this purpose, there cannot be any addition or subtraction. No amount of evidence can be looked into. The issue on merits of the matter would not be within the realm of the Court at that stage. The Court at that stage would not consider any evidence or enter a disputed question of fact of law. Relevant paragraphs thereof are extracted below: “21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

RFA(OS) 83/2018, 84/2018 & 85/2018 Page 22 of 29

Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. 24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. 25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.” (Emphasis Supplied) xxx xxx xxx

“xxx xxx xxx

23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

RFA(OS) 83/2018, 84/2018 & 85/2018 Page 23 of 29

not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941].

xxx xxx xxx”

xxx xxx xxx

xxx xxx xxx”

(Emphasis Supplied)

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suits certainly require trial before any adjudication can be made on the various issues raised in the suits. 18. Further, it is to be noted that the preliminary issue framed by the learned Single Judge was as to whether the suit property was held by Smt. Sudha Dayal (daughter-in-law), as trustee of Smt. Shakuntala Devi (mother- in-law). However, in the impugned judgment, the issue of “Trusteeship” and “Fiduciary Relationship” have been dealt interchangeably, though said issues and relationships are separate and independent of each other. 19. By virtue of the impugned judgment, the learned Single Judge has not only dismissed the applications of the appellants for rejection of the plaint under Order VII Rule 11 CPC, but has also proceeded to declare Smt. Shakuntala Devi, the deceased grandmother of the appellant, as the “Benami” owner of the suit property. However, as per the law elucidated by the Supreme Court, the burden of proving that a particular sale is „Benami‟, has to be strictly discharged by adducing legal evidence of a definite character. Thus, in the case of Jaydayal Poddar (Deceased) Through L.Rs and Another versus Mst Bibi Hazra and Others, (1974) 1 SCC 3, Supreme Court has held, as follows: “xxx xxx xxx 6. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

RFA(OS) 83/2018, 84/2018 & 85/2018 Page 25 of 29

acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly 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, it 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.

xxx xxx xxx”

(Emphasis Supplied)

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„fiduciary capacity‟ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it cannot be said at this stage that the suit is barred by Benami Act. In this context, we may usefully refer to a recent decision of the Supreme Court in Pawan Kumar v. Babulal Since Deceased through Legal Representatives reported as (2019) 4 SCC 367, wherein it has been held as below:— “13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property v. SBI Staff Assn. [Popat and Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510] : (SCC p. 515, para 10) “10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.” (Emphasis added) 23. If we go strictly by the averments made in the plaint and the documents filed by the appellant/plaintiffs, we are of the opinion that the suit ought not to have been rejected outright under Order VII Rule 11 CPC on the ground that the pleas taken by the appellants/plaintiffs are barred under Section 4(3) of the unamended Benami Act. In our view, the matter would require a more comprehensive consideration after permitting the parties to lead evidence in the case. Order VII Rule 11 CPC was not the appropriate Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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stage for testing the veracity of the pleas taken in the plaint and return any finding on the merits of the said plea taken by the appellants/plaintiffs in the plaint or to extensively examine the underlying intent of the parties on a perusal of the documents filed by the appellants. On a bare reading of the averments made in the plaint read in conjunction with the documents placed on record, we are of the opinion that sufficient material facts have been disclosed requiring determination only after a proper trial. At the stage of deciding an application moved by the respondents under Order VII Rule 11 CPC, there was no occasion for the court to have taken pains to interpret and analyse the documents filed by the appellants/plaintiffs to hold in favour of the respondents.

xxx xxx xxx”

(Emphasis Supplied)

Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified

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“xxx xxx xxx 13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon [(1964) 4 SCR 409 : AIR 1964 SC 497] and it was held as under: (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.”

Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.

xxx xxx xxx”

(Emphasis Supplied)

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there was no ground for rejection of the plaint, it could not have proceeded further to give relief to the respondents, i.e., plaintiffs in the suit, on the basis of facts and circumstances disclosed in the plaint. Given that the learned Single Judge was of the view that sufficient material had been disclosed on the record by the plaintiff in the plaint, i.e., the respondents herein, the appropriate course of action that ought to have been adopted by the learned Single Judge was to reject the applications under Order VII Rule 11 CPC and put the matter for trial. Decreeing the suits in favour of the respondents, i.e., the plaintiffs in the suits, in such summary manner at the time of adjudication of applications under Order VII Rule 11 CPC, cannot be sustained. 24. In view of the aforesaid detailed discussion, the impugned judgment dated 2nd November, 2018 passed by the learned Single Judge is set aside. The matter is remanded back to the learned Single Judge for further proceedings in the suits, which shall be decided, after due recording and completion of evidence. 25. The present appeals are allowed in the aforesaid terms. 26. In view of the judgment pronounced today, the parties are directed to appear before the learned Single Judge for directions on 18th November, 2024.

MANMOHAN, CJ

MINI PUSHKARNA, J OCTOBER 18, 2024 Au/kr/ak Digitally Signed By:AMAN UNIYAL Signing Date:19.10.2024 19:10:09 Signature Not Verified