PRINCIPAL COMMISSIONER OF INCOME-TAX (CENTRAL)-I vs. SURESH NANDA,

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has also misbehaved with the mother of plaintiff No. 1. On 26.09.2016 at 8.30 a.m., the defendant called the police and got a false and frivolous FIR registered against plaintiff No. 1 under Sections 451, 323 and 506 IPC alleging that plaintiff No. 1 had hit the defendant, slapped her and forcibly tried to throw her out of the house. Hence, the present suit has been filed. 5. The defendant has filed her written statement. In her written statement, multiple pleas have been raised. It is pleaded that the property has been purchased from the funds of the joint family business belonging to the late father of the parties, namely, late Sh. Ravi Shankar Tandon and that the property is a benami property and even, the defendant has a right in the same. It is further stated that the suit property was as agreed and desired by the late father to be in the joint name of the plaintiffs, defendant and the mother-Smt. Promila Rani Tandon. However, the plaintiffs taking advantage of the untimely death of the father and the matrimonial discord being faced by the defendant siphoned off huge sum of money from the family business by obtaining signatures on multiple documents. It is further stated that the defendant has a right to reside in the suit property in view of the family arrangement by which she was induced to enter into under the promise of being given her due share. Another defence taken is that the suit premises have been purchased from the funds generated after disposing joint family property in which the defendant had an equal right and entitlement. 6. I may note that vide order dated 29.09.2016 this court had confined the occupation of the defendant to one room only. 7. I have heard learned counsel for the parties.

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Property share of which devolved upon the defendant herein on the death of the grandfather, namely, Sh. Rikhi Ram Tandon on 03.04.2011 and the grandmother, namely, Smt. Sheela Wati Tandon on 07.06.2014. It is also pleaded that in a suit filed by the uncle-Mr.Rajesh Tandon, the plaintiff herein has himself taken a plea in the written statement that the suit properties which are subject matter of that suit, the defendant herein has an interest in the suit properties and there is non-joinder of her as a necessary party. 10. In the course of hearing, an attempt was made to try and settle the matter. An offer was made by the plaintiff to the defendant that they would purchase her a flat worth approximately Rs.2 crores in her name as final settlement. The defendant however did not accept the said offer. 11. I may first see the averments in the plaint and the response thereof by the defendant in the written statement. In paragraph 3 of the plaint the plaintiff has stated that the defendants were allowed to reside in the suit property on gratuitous basis. Para 3 of the plaint reads as follows:- “3.That in the year 2005 the defendant due to various problems in her marriage came back and started living in one room of ground floor of the suit property as the plaintiffs allowed the defendants to reside in the suit property on a gratuitous basis. The defendant filed various cases against her ex-husband under the Domestic Violence Act and also got registered an FIR under Sections 498/406 and also got her ex husband arrested in the aforesaid FIR and pursuant thereto a settlement was executed vide settlement deed dated 26.11.2009 before the Delhi High Court Mediation & Conciliation Centre, wherein the defendant took an alimony of Rs.36,50,000/- from her ex-husband and pursuant thereto the divorce by mutual consent was effected between the defendant and her ex-husband.”

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.….

Response to the para 5 and 15 of the plaint, the written statement reads as follows 5. That the content of the Para 5 is wrong and denied, it is infact the defendant who is in exclusive occupation of the entire ground floor with a provision for her separate kitchen and it was the defendant who had on account of her love and affection even requested the plaintiffs to lodge the old ailing neglected mother in her portion of the premises. The defendant was consistently looking after the needs of the mother through her own source and expenses. Even the salary being received by the defendant in her account is being clandestinely siphoned off the plaintiff(s) in complete breach of trust.

12.That the contents of Para no. 15 are wrong and denied and the reply to the preceding paragraphs be read as a reply to the present paragraphs the same is not been reproduced for the sake of brevity. It is further wrong and denied that the suit property is not a shared household in terms of section 2(s) in terms of the protection of women from Domestic violence Act, 2005. The defendant being a woman fully qualifies for protection in terms of the statute. The defendant falling within the definition of victim.

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In para 16 of the written statement, the defendant states that the defendant is in lawful occupation of the property as the property has been purchased from the funds generated after disposing of the joint family property in which the defendant had a right, title and share. The aforenoted paras of the written statement read as follows:- “2. That the contents of Para 2 are admitted to the extent they pertain to the marriage and death of the father concerned same are a matter of record. It is denied that the plaintiff have purchased the suit property from their own funds. Infact the suit property was as agreed and desires of the late father to be in the joint names of the Plaintiff(s), defendant and the mother i.e. Mrs Promila Rani Tandon. However the plaintiff taking advantage of the untimely death of late Sh. Ravi Shankar Tandon and severe matrimonial discord being faced by the defendant the plaintiff taking advantage of the same siphoned off huge sums of money from the family business, by obtaining signature on multiple documents by pressuring the defendant by poisoning her that her ex husband is staking claim to the estate of Late Sh. Ravi Shankar Tandon through her, as such she must sign documents in his favour and he would ensure that her interest is taken care of in the future. Contents of the Para which pertains to registration of sale deed are denied for want of proof even otherwise the sale deed ought to have been registered in the Joint names as stated hereinabove and thus the document is liable to be declared as null and void for which the defendant is initiating separate proceedings. This Hon'ble court will have to lift the veil and ascertain the source of income. …. 11. That the contents of Para no. 14 are wrong and denied. It is vehemently denied that the defendant is a permissive occupier or a gratuitous licensee. It is denied that the defendant has no right to reside in the suit property. The defendant infact is entitled to reside in the said premises in view of the family arrangement she was induced to enter into under the promise

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of being given her due share. It is denied that the defendant has no legal right to stay in the premises, it is submitted that the suit is liable to be dismissed, the same being without any cause of action and a concoction of lies, suit is based on falsehood, fabrication and made up imaginary allegations with a view to coerce the defendant to give up her legitimate claims rights and entitlements, the same is thus liable to be dismissed at the very threshold. … 16. That the contents of Para no. 19 are wrong and denied. It is submitted that the defendant is in legal, lawful occupation of the ground floor in view of her right title and entitlements especially in view of the fact that even the present suit premises has been purchased from the funds generated after disposing of the joint family property in which the defendant has an equal right share and entitlement. The plaintiffs are blowing both hot and cold at one point they are calling the defendant a trespasser, illegal occupant whereas on the other hand they are offering to provide for alternative accommodation for her living (which surprisingly is nothing but a ploy to induce this Hon'ble court to believe their bonafide's and concern for the peaceful living of the parties, which is also evident from the fact that having obtained the order of injunction restricting the defendant to one room in the floor under her use and occupation they have even withdrawn the said offer before the mediator which speaks volume about their modus operandi) it is of almost importance and relevance to mention at this juncture that the mother of the parties herein is not a co plaintiff nor she is aggrieved of any of such alleged nuisance, in fact the defendant through her own resource maintain and looks after the kitchen and other medical expenses of the mother including her day to day care. .... 19. That Cause of action if any has arisen against the plaintiffs whereby this Hon'ble court ought to restrain them causing undue interference in her portion with a view to safeguard her from any other blatant attempt to take the law unto themselves as they have no fear of law or respect for relations, plaintiff is

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habitual court bird embroiled on multiple litigations one of which a defendant has learnt recently pertains to inheritance of the estate of late sh. Ravi Shankar Tandon, his rights in several properties and business which is pending before this Hon'ble court. The list of assets, list of business, are jointly run by late Ravi Shankar Tandon are as follows:-

And the right entitlement of Ravi Shankar by virtue of being joint owner of the properties is also subject matter of litigation for which the plaintiff has refused to supply any documents or the current status. The defendant is in the process of collating, collecting, consolidating the documents to her best possible means where after she will initiate the requisite legal proceeding she was advised. The plaintiff by manipulating those documents even trying to disentitle the defendant for her legitimate claims and using the present proceeding as a coarse tactic. The defendant hereby categorically declares such black signed documents, deeds, attorneys etc as null and void which were scrupulously, illegally obtained by deceit by the plaintiff by exercising his clout, inducement, coercion and enjoying

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domination over the defendant taking advantage of her pitiable circumstances brought around on account of untimely death of her father with whom the defendant was extremely attached and her matrimonial discord which was orchestrated by the plaintiffs as such no such further order are called for rather the dated 19.10.2016 needs to be modified in view in the interest of Justice.”

Essentially what the written statement seeks to plead is somewhat contradictory and jumbled up. It is stated that the father desired that the property would be bought in the joint names of the plaintiff, defendant and the mother. It is also pleaded that the defendant is entitled to reside in the premises in view of the family arrangement, which she was induced to enter into under the promise of being given her due share. It is also sought to be pleaded that the suit premises had been purchased from funds generated after disposing of the joint family property in which the defendant had a right. It is also pleaded that the suit property is bought from funds siphoned off from family business. 16. The substance of the actual defence of the defendant from a perusal of the written statement is that the property in question has been purchased from the joint family fund obtained from the joint family business belonging to the father of the parties. It is also stated that the suit property was bought from the funds generated after disposal of the joint family property in which the defendant had an equal share and entitlement. This is the sum and substance of the defence raised by the defendant in her written statement. It is manifest that the defence is vague, evasive and lacks material particulars. Under Order 8 Rule 3

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CPC, a defendant is obliged to deal specifically with each allegation of fact of which he does not admit the truth. Similarly, under Order 8 Rule 4 CPC, if a defendant denies an allegation of fact, he must not do so evasively but answer the point of substance. In the present case, the denials are evasive and cannot be said to be a specific response. 17. I may look closer at the feeble response raised claiming purchase of the suit property from the funds generated from the sale of the joint family property. Would the same be sufficient to deny relief to the plaintiff at this stage. The Division Bench of this court in Amit Johri vs. Deepak Johri & Ors., 2014 SCC OnLine Del 822 explained the difference between joint property, a joint family property and a joint ancestral property “13. It may be true that property under Hindu Law can be classified under two heads: (i) coparcenary property; and (ii) separate property. Coparcenary property is again divisible into (i) ancestral property and (ii) joint family property which is not ancestral. This latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.

(ii) joint family property, and (iii) joint ancestral family property are not the same. In all the three things there is no doubt a common subject, property, but this is qualified in three different ways. The joint property of the English law is property held by two or more person jointly, it characteristic is survivorship. Analogies drawn from it to joint family property are false or likely to be false for various reasons. The essential qualification of the second class mentioned above is not joints merely, but a good deal more. Two complete strangers may be joint tenants according to English law; but in no conceivable

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circumstances except by adoption could they constitute a joint Hindu family, or in that capacity, hold property. In the third case, property is qualified in a two-fold manner, that it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence, because the word ancestral connotes descent and hence pre-existence. But because it is true that there can be no joint ancestral family property without pre-existing nucleus of joint family property, it is not correct to say that these cannot be joint family property without a preexisting nucleus, for, that would be identifying joint family property with ancestral joint family property. Where there is ancestral joint family property, every member of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. This is equally true of joint family property. Where a sufficient nucleus in the possession of the members joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any members alleging that it is not, will have to prove his self-acquisition. Where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents as the ancestral joint family property, but differed radically in original and essential characteristics from the joint family is the tie of sapindaship without which it is impossible to have a joint Hindu family, which such a relationship is unnecessary in the case of a joint tenancy in English laws.

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…. 11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami CS(OS) No.1862/2010 Page 11 of 16 Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub Sections (1) and (2) of Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self- serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of

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a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded. …. 8. I have already reproduced above paras 2 and 3 of the plaint. As per Order VI Rule 4 of the Code of Civil Procedure, 1908 (CPC) and the ratios of the judgments in the cases of Surender Kumar (supra), Sunny (Minor) & Anr. (supra) and Mrs. Saroj Salkan (supra), it was necessary for the plaintiff to state as to how HUF exists specifically either because of the pre 1956 or the post 1956 position. If HUF and its properties are stated to exist because of the pre 1956 position, then, what are the specific properties with their details which were inherited by defendant no.1 had to be mentioned and only on inheritance by the defendant no.1 of such ancestral properties prior to 1956 would defendant no.1 have HUF properties and its funds in his hands. This aspect is conspicuously silent in the plaint. I may note that it is not the case of the plaintiff in the plaint that HUF and its properties were created post 1956 by the defendant no.1 by throwing the properties into a common hotchpotch. Also, at this stage, it is relevant to refer to the observations made in the judgment in the case of Surender CS(OS) No.1862/2010 Page 13 of 16 Kumar (supra) wherein reference is made to passing of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and observed that once a property is found to be in the ownership of a particular person by title deeds (and that particular person being the defendant

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no.1 in the present case as regards the Rajinder Nagar property and the Faridabad property), it is hence the defendant no.1 who would be the owner of such properties and a suit for claiming rights in such properties would be barred by Section 4(1) of the Benami Act. Exceptions to Section 4(1) of the Benami Act are stated under Section 4(3) of the Benami Act and which are firstly of existence of an HUF or secondly of the property being purchased as a trustee/in fiduciary relationship. Since the provision of Section 4(3) of the Benami Act is in the nature of exception to the provision of Section 4(1), this aspect read with Order VI Rule 4 CPC which requires all necessary particulars to be mentioned in the plaint, plaintiff had to set up a clear cut case by pleading in the plaint as to how HUF and its properties have come into existence and as to how the suit properties are HUF properties once the title deeds of the properties are admittedly in the name of the defendant no.1.” 20. The above judgment of the Single Bench of this court was upheld by the Division Bench of this court in an appeal titled as Sagar Gambhir vs. Sukhdev Singh Gambhir, 2017 (162) DRJ 575. The Division Bench noted as follows:- “13. In the decision reported as 2011 (6) SCALE 677 Ramrameshwari Devi vs.Nirmala Devi in para 52(a) the Supreme Court highlighted that pleadings are foundation of the claim by a party and it is the bounden duty and obligation of every trial Judge to carefully scrutinize the pleadings and the documents on which the pleadings are predicated. In the decision reported as AIR 1999 SC 1464 D.M.Deshpande vs. Janardhan Kashinath Kadam, the Supreme Court highlighted the relevance of pleading material facts. In the decision reported as AIR 1982 Bom. 491 Nilesh Construction Co. vs. Gangu Bai, with reference to a plea of tenancy, the Bombay High Court highlighted that pleadings must disclose the details with reference to the day when the tenancy was created and the exact nature thereof. In the decision reported as AIR 2006 SC 1828 Mayar (HK) Ltd. & Ors. vs. Owners & Parties Vessel

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MV Fortune Express, the Supreme Court highlighted the requirement to read pleadings meaningfully in view of the relied upon documents and see whether the same are not illusory or vexatious.”

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off of the family business or sale of HUF property cannot be allowed to be sustained. Such pleas does not constitute any meaningful defence. 22. It is settled law that while considering an application under Order 12 Rule 6 CPC the court can ignore vague and unsubstantiated pleas. Order 12 Rule 6 CPC reads as follows:- “6. Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”

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etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored.”

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“10. In view of the above, it is clear that the suit as per the pleadings, documents and the undisputed/admitted position does not show existence of a cause of action with respect to HUF and its properties. At the cost of repetition, and also so stated in para 12 in the judgment in the case of Surender Kumar (supra), it is to be noted that Courts are flooded with litigations which are frivolous in nature, simply by making vague and illusionary allegations of facts as to the traditional concept of HUF and which no longer exists after 1956 as per the ratios of the judgments of the Supreme Court in the cases of Yudhishter (supra) and Commissioner of Wealth Tax, Kanpur and Others (supra). Obviously, such litigations are in the nature of speculations only and are against the spirit of the Benami Act which intends to give finality to the ownership of the properties in the name of a particular person by means of title deeds in the name of a particular person. As per the pleadings and admitted documents in the present case, there is no legal cause of action with the necessary ingredients existing/averred with respect to existence of HUF and its properties, and it may be again noted at the cost of repetition that there are only general and vague averments in paras 2 and 3 of the plaint, of the defendant No.1 inheriting ancestral properties in Pakistan without giving details as to what those imaginary properties were. The suit on the basis of such imaginary cause of action cannot be allowed to continue and cause harassment to the defendants.”

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a. G-3 Building South ex-Part I, New Delhi b. G-11 Building South ex-Part I New Delhi c. D-404, Defence Colony, New Delhi d. X-44 DLF, Phase III, Gurgaon e. DA-48/41, DLF Phase I, Gurgaon f. D-261, Second Floor Defence Colony. g. Two flats in Bellaire Appartment, Gurgaon h. One Shop in MGF Mall, Gurgaon i. One Shop in Grand Mall Gurgaon j. Shares, Debentures, Bonds, Fixed Deposits, Joint Bank Accounts, etc. left by Late Sh. Ravi Shankar Tandon.

b. Pass a Decree of Rendition of Accounts against defendants in respect of business establishment M/s Ushnak Mal Mool Chand, M/s. UM Mool Chand India emporium, M/s. Ushank Sons Pvt. Ltd. and Subhash & Co. & Shares, debentures, bonds, fixed deposits receipts, various bank accounts of Late Sh. Ravi Shankar Taondon from 1998 when he expired as well as Joint Bank accounts of plaintiff and defendant No.1 operated by defendant No.1.

c. Pass a decree of rendition of accounts against defendants in respect of mesne profits and rent received as well as sum received towards interest of PPF and other investments including Dividends received.

d. Pass a decree of recovery of Rs.36.5 lakhs against defendant No. 1 alongwith interest @ 24% per annum with effect from 2010.”

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I may only note that for the purpose of adjudication of the present suit I may take into consideration the pleadings raised in the present suit only. Reference in this context may be had to the judgment of the Supreme Court in the case of Ram Sarup Gupta (Dead) By Lrs. V. Bishun Narain Inter College & Ors., (1987) 2 SCC 55, where the court held as follows: “6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise

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the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul [1956] 1 SCR 286 a Constitution Bench of this Court considering this question observed:

If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”

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(9) "benami transaction" means,—

(A) a transaction or an arrangement—

(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by—

(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;

(ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 and any other person as may be notified by the Central Government for this purpose;

(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for property has been provided or paid out of the known sources of the individual;

(iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such

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property has been provided or paid out of the known sources of the individual; or …….”

Section 4 of the Prohibition of Benami Property Transaction Act, 1988 reads as follows: “Prohibition of the right to recover property held benami. 4. (1) No suit, claim or action to enforce any right in 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.”

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accordance with law. As there was a plea that the rent of the property was being credited in the account of Y.P.Batra, HUF, the court held as follows:- “15. I have wondered as to how the plaintiff/s can maintain the suit for declaration and partition of properties which are in the name of either Mrs. Geeta Batra or Mrs. Jaya Batra or Ms. Deeksha Laxmi Wadhera Batra and the title whereof is in their names, even if it is the admitted position that the sale consideration thereof flowed from Mr. Y.P. Batra.

…..

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(2007) 10 SCC 602 held that there is no presumption of a property, being joint family property, only on account of existence of a joint Hindu family and the person who asserts so has to prove that there was a nucleus with which joint family property could be acquired. Thus from the mere plea of existence of a joint Hindu family at the time of acquisition of the plot and construction thereon and from the absence of any plea of a nucleus and rather the assertion of the property having been acquired by the father from his self acquired funds, it has but to be held that there is no plea in the plaint of the property at the time of acquisition/construction being of a coparcenary or of the defendant no. 1 holding the same for the benefit of coparceners in the family. …. 23. The Supreme Court in Mayor (H.K.) Vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100 and recently followed by the Division Bench of this Court Santosh Malik Vs. Maharaj Krishan MANU/DE/0448/2012 while upholding the order of rejection of the plaint on the ground of the claim therein being barred by the Benami Act, held that the plaint has to be read meaningfully and not formally and it is the duty of the Court to see whether a real cause of action has been made out in the plaint or something illusory has been projected and that after so reading, vexatious plaints have to be thrown out. In fact during the course of hearing it was repeatedly asked from the counsel for the plaintiff whether there was anything else to show that there was a coparcenary in fact in existence at any time; whether any Income Tax returns thereof were filed; whether there was any other joint property of the parties earlier or now. The counsel candidly admitted that there is none.

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parents or from some other siblings is not enough to bring a case within the exception aforesaid to the prohibition contained in Benami Act. It cannot be lost sight of that benami transactions prevalent earlier, generally were between family members and hardly ever in the name of absolute strangers, and if pleas as in the present case were to be held to be falling within the exception clause, would negate the legislative intent of prohibiting actions to enforce rights in respect of property held benami.”

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the suit property as a licensee. Being a licensee, it is not for her to now start claiming title to the property. Reference may be had to Section 116 of the Evidence Act, which reads as follows: “116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” 40. This Court in the case of Association for Voluntary Action vs. The Child Trust & Another, 2013 (9) AD (Del) 180, has already held that in terms of above provisions, defendant cannot be permitted to deny that the plaintiff had title at the time when the license was given. 41. In Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006 SC 3569, the Hon’ble Supreme Court in paragraphs 14 and 15 held as under:- “14. The “possession” in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given. 15. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of

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the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppels has been incorporated by the legislature in the said section.” 42. In Vishal Builders Pvt. Ltd. vs. Delhi Development Authority & Ors., 2006 (130) DLT 667, this court held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possession thereof can be permitted to deny that such person had a title to such property when such license was given. Similar is the view of the judgment of this Court in the case of Desh Raj Singh vs. Triveni Engineering & Industries Ltd. & Anr., 2006 (130) DLT 120. 43. Reference may also be had to the judgment in the case of Sant Lal Jain vs. Avtar Singh (1985) 2 SCC 332 where the Hon’ble Supreme held as follows:- “6. ..... In Milkha Singh v. Diana, it has been observed that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence it terminated, the licensee’s possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed: After the termination of licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under s. 55 of the Specific Relief Act. We might further mention that even under English

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law a suit for injunction to evict a licensee has always been held to be maintainable.” 44. There is a clear averment made in the plaint that the defendant was inducted into the suit property as a licensee. This plea in the plaint has not been specifically denied which is clear from the paras of the plaint that were noted above especially paras 3, 5 and 15 of the plaint read with the relevant paras of the written statement. Instead the defendant has chosen to raise vague and unsubstantiated plea about the suit property having been bought from funds siphoned off from the family business/from sale of joint family property. I have already rejected the said pleas above. Hence there is no proper denial of the averment in the plaint that the defendant was inducted as a licensee. As noted in the above judgments once a licensee would always be a licensee. The license given in favour of the defendant stands terminated. The defendant would clearly be liable to be evicted. 45. I may note one more aspect regarding the defence of the defendant. In para 12 of the written statement the defendant denies that the present suit property is not a shared household in terms of Section 2(5) of The Protection of Women from Domestic Violence Act. Other than this one sentence there is no attempt to plead application of the said Act. In the course of arguments, no submissions to this effect were also made. 46. I may only add that this court has not taken any view on the merits or demerits of the plea raised by the defendant in her suit that has been filed being CS(OS) 16/2017. Present adjudication is confined to the plaint herein and the defence raised in the written statement filed by the

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defendant and the documents thereof. Hence, the findings recorded herein would not prejudice the defendant in her adjudication of the said afore-noted suit. 47. Accordingly, the present application is allowed. CS(OS) 501/2016 Accordingly, a decree of permanent injunction is passed in favour of the plaintiffs and against the defendant restraining the defendant, her agents, servants, etc. from entering the suit property or occupying the suit property or causing any nuisance or interference in any manner with the possession of the plaintiffs. A decree of mandatory injunction is also passed in favour of the plaintiffs and against the defendant directing the defendant, her agents, associates, etc. to remove any article from the suit property i.e. one room on the ground of the suit property as shown in the site plan. No costs Accordingly, the suit stands disposed of. All pending applications, if any, also stand disposed of. The parties should bear their own cost.

(JAYANT NATH)

JUDGE FEBRUARY 28, 2019 rb/n/rs