IN THE HIGH COURT OF DELHI AT NEW DELHI
CCP No. 180 of 2008 in CS(OS) 276/2007
AARTI SABHARWAL ….. Petitioner Through: Mr. Y.P.Narula, Senior Advocate with Mr.Kirti Uppal and Mr. Sanjeet Singh, Advocates.
JITENDER SINGH CHOPRA & ORS. ….. Respondents Through: Mr. Sandeep Sethi,Senior Advocate
with Mr. Kamal Chaudhary and Mr. Nikhil Bhalla, Advocates for Defendants 2 & 3.
Mr. T.K.Ganju, Senior Advocate with Mr. Ravi
Shankar Nanda and Mr. Varun Tyagi, Advocates
for Contemnor/Respondent No.6/Applicant in IA
None for Defendant No.1.
AARTI SABHARWAL ….. Plaintiff Through: Mr. Y.P.Narula, Senior Advocate with Mr.Kirti Uppal, Advocate.
JITENDER SINGH CHOPRA & ORS. ….. Defendants Through: Mr. Sandeep Sethi,Senior Advocate
with Mr. Kamal Chaudhary and Mr. Nikhil Bhalla,
Advocates for Defendants 2 & 3.
None for Defendant No.1.
CCP No.180/2008 & CS(OS) No. 276/2007 page 1 of 24 HON’BLE DR. JUSTICE S.MURALIDHAR
1.To be referred to the Reporter or not ? Yes
2. Whether the judgment should be reported in the Yes Digest ?
CCP No. 180 of 2008 in CS(OS) 276/2007 & I.A.No. 4037/2009 in CS(OS) No.276/2007
1. This is a contempt petition filed by the Plaintiff in CS (OS) No. 276 of 2007 seeking punishment of the respondents/contemnors for willful disobedience of the order dated 15th February 2007 passed by this Court in the suit.
2. The background to the filing of the present petition is that the Petitioner (hereinafter referred to as the Plaintiff) was married to the Respondent No.1/Defendant No.1 (in the suit) on 27th October 2004. On account of the differences that arose between the parties, the Plaintiff lodged a complaint against Defendant No.1 (husband), Defendant No.2 (father-in-law), Defendant No.3 (mother-in-law) with the Crime Against Women Cell, Nanakpura, New Delhi under Sections 406/498A IPC. Pursuant thereto an FIR was registered against the three Defendants on 3rd January 2007.
3. The Plaintiff also instituted proceedings against the Defendants under the CCP No.180/2008 & CS(OS) No. 276/2007 page 2 of 24 Protection of Women from Domestic Violence Act, 2005 (PWDVA) claiming inter alia maintenance and right of residence and interim orders on those terms.
4. The proceedings under the PWDVA before the learned Metropolitan Magistrate
(MM), New Delhi witnessed the passing of an interim order in favour of the
Plaintiff on 7th December 2006 directing the Respondents “not to dispose of the
shared household i.e. 32, Sultanpur Farms, Mehrauli.” The said interim order
was continued on 11th December 2006 and again on 12th December 2006 till 18th
December 2006. A perusal of the order passed by the learned MM on 18th December
2006 shows that the said interim order was not continued thereafter.
5. The present suit was filed by the Plaintiff on 14 th February 2007 under
Section 18 of the Hindu Adoption & Maintenance Act, 1956 (HAMA) seeking the
“(a) pass a decree of permanent injunction restraining the
Defendants, their servants, agents, attorneys from selling, alienating or
creating any third party interests in property No. 32 Sultanpur Farms, Mehrauli,
New Delhi and Hotel Clarimont at Mehrauli Gurgaon Road, Aaya Nagar,
Mehrauli, New Delhi.
(b) pass a decree of declaration thereby declaring the Divorce Proceedings
filed by Defendant No.1 before Guildford Country Court, U.K. as void and without
CCP No.180/2008 & CS(OS) No. 276/2007 page 3 of 24 jurisdiction and that the law
applicable would be the Indian law and in the meantime restrain the Defendant
No.1 from pursuing the same.
(c) pass a decree of maintenance under the Hindu
Adoption & Maintenance Act and award a monthly
maintenance of Rs.7.5 lacs or any other amount as
adjudicated by the Honble Court on the basis of status and
income of defendants plus right of residence to the Plaintiff.”
6. The averments, inter alia, in the plaint were that the Defendant No.1who was
a British passport holder had moved to the United Kingdom (U.K) to file a
divorce petition against the Plaintiff there. On receipt of summons she sent a
letter to the said court pointing out inter alia that the allegations made by
Defendant No.1 are false and that she has no resources to defend herself in the
courts in UK. In the meanwhile the Plaintiff who had returned to Delhi from
Dubai, where the parties were last residing together, tried to enter her
matrimonial home at 32, Sultanpur Farms, Mehrauli, New Delhi where Defendants 2
and 3 were also residing. She was however threatened with dire consequences and
her life was threatened as well. It was only thereafter that she filed an
application under the PWDVA on 5th December 2006 seeking the reliefs as noticed
hereinbefore. It was averred in the plaint that “the Plaintiff had learnt that
Defendants 2 to 4 in connivance with each other and at the behest of Defendant
No.1 were trying to sell the immovable properties in Delhi/Gurgaon which
directly or indirectly belong to Defendant CCP No.180/2008 & CS(OS) No.
276/2007 page 4 of 24 No.1 by virtue of a so-called Power of Attorney given in
favour of Defendant No.2 by the said Defendant No.1.” It was apprehended that
the Defendants were attempting to defeat the claim of the Plaintiff for
maintenance and damages.
7. In para 23 of the plaint the Plaintiff has described the immovable
properties which according to her constituted the shared household. These
included the property at 32, Sultanpur Farms, Mehrauli, New Delhi and a Motel
by the name of “Clarimount” in Aaya Nagar Farms, Mehrauli, New Delhi. It was
claimed that there was also a flat in Gurgaon the details of which were not
known to the Plaintiff. In para 31 the Plaintiff asserted that “being legally
wedded wife of Defendant No.1 and daughter-in-law of Defendant Nos. 2 & 3 is
entitled to maintenance under the Hindu Adoption & Maintenance Act, 1956. This
Honble Court and the Honble Supreme Court of India has held that the wife was
entitled to 1/3 rd of husbands income as maintenance. The Plaintiff is entitled
to the entire hotel property as it belongs to Defendant No.1/husband.”
8. Thereafter in the same paragraph the assets and business establishment of
the Defendants “to the best of the knowledge of the Plaintiff” were set out.
and the properties included Farm House at 32, Sultanpur Farms, Mehrauli, New
Delhi and Hotel Clairmont in Mehrauli Gurgaon Road, Aaya Nagar, New Delhi.
CCP No.180/2008 & CS(OS) No. 276/2007 page 5 of 24
9. Along with the suit the Plaintiff also filed an application being IA
No.1711 of 2007 under Order XXXIX Rules 1 and 2 CPC seeking an interim
injunction restraining the Defendants from disposing of or alienating the
aforementioned properties during the pendency of the suit.
10. On 15th February 2007 the order passed by this Court in IA No. 1711 of 2007
reads as under:
“Notice. Mr.Bakshi accepts notice and states that there is
already an order passed by the learned Metropolitan Magistrate in the criminal
proceedings filed by the petitioner under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 to the effect that the property bearing No. 32,
Sultanpur Farm, Mehrauli, New Delhi, shall not be disposed of, alienated, sold
or third party interest created. He states that the defendant would abide by the
said order. The defendants are additionally restrained from selling, alienating
or creating any third party interest in Hotel Clairmont, Aya Nagar, Mehrauli,
New Delhi. Mr. Bakshi further states that defendants No.2 and 4 shall not leave
the country without the permission of the Court till the next date of hearing.
Reply be filed within one week. Rejoinder be filed within one week thereafter.
List on 5.3.2007.”
11. The proceedings in the suit show that the said interim order was continued
on 5th March 2007. On 12th March 2007 there was an interim CCP No.180/2008 &
CS(OS) No. 276/2007 page 6 of 24 order restraining Defendant No.1 from pursuing
the divorce proceedings in the court in UK. The interim order was continued on
10th May 2007 as well.
12. It appears that in the meanwhile the learned MM took up for consideration
the application for interim maintenance and other reliefs sought by the
Plaintiff in the proceedings under the PWDVA. By an order dated 28th May 2007
the learned MM restricted the interim relief granted to the Plaintiff to that
of Rs.30,000/- per month for accommodation charges and Rs.70,000/- per month
for maintenance. It was held by the learned MM in the said order dated 28th May
2007 “that so far as Respondents 2 to 4 are concerned, in my opinion they are
not liable to provide accommodation and maintenance to the complainant.” It may
be mentioned here that Respondent No.4 referred to above is the brother of the
husband. To complete this part of the narration it should be noticed that
thereafter on 19th February 2009 the learned MM dismissed the petition under
the PWDVA for default.
13. Meanwhile the present suit was again listed before this Court on 6th June
2007. Defendant No.2 sought modification of the interim order dated 15 th
February 2007 seeking permission to travel abroad. Learned counsel for the
Defendant No.2 referred to the earlier order dated 15th February 2007
restraining the Defendants from alienating or creating third party interests in
both properties i.e. Hotel Clairmont, Aaya Nagar, New Delhi and 32, CCP
No.180/2008 & CS(OS) No. 276/2007 page 7 of 24 Sultanpur Farms, Mehrauli, New
Delhi and submitted that “his clients would be bound by the order dated 15th
February 2007 and undertake to comply with the orders.” The case was thereafter
listed on 7 th August 2007. On that date the interim order was not continued.
However on 9th October 2007 it was continued.
14. On 18th January 2008 the following order was passed by this Court: “It is
stated by the learned Counsel for Defendants No. 1 and 4 that two applications,
one on behalf of Defendant No. 1 and her on behalf of Defendant No. 4 for
condonation of delay in filing WS were filed but same are not on record. Learned
Counsel seeks time to check with the Registry.
The matter be listed on 22nd May, 2008 Parties shall file all documents within
four weeks. No further opportunity shall be given for filing documents.
Interim order to continue till then.”
15. The immediate next date of hearing was 22nd May 2008 when the following
order was passed:
“It is stated by Counsel for the parties that parties are trying for a
List on 17th November, 2008.”
16. What is significant is that on 22nd May 2008 the interim order which was to
expire on that day was not continued. In fact, this is the main bone of CCP
No.180/2008 & CS(OS) No. 276/2007 page 8 of 24 contention as far as the present
contempt petition is concerned because of what transpired between 22nd May 2008
and the next date i.e. 17th November, 2008.
17. On 9th June 2008 the property at 32, Sultanpur Farms, Mehrauli, New Delhi
was sold by Defendant No.3 by a registered sale deed to Aarken Advisors Pvt.
Ltd., which has since been impleaded as Respondent No.6 in the contempt
18. The present petition was filed on 29th February 2008 in which it was inter
alia stated that the Respondents 1 to 3 had willfully disobeyed the interim
orders passed by this Court on 15th February 2007 which was thereafter
continued from time to time. As regards the property i.e. Hotel Clairmont, Aaya
Nagar, Mehrauli, New Delhi it was alleged that Defendants 2 and 3 had sometime
in May/June 2008 increased the share capital of the Fountainhead Motels Pvt.
Ltd. (FMPL), of which they were Directors, and which company was in fact
running Hotel Clairmont. It is alleged that they increased the shared capital
from Rs.5 lakhs to Rs.15 lakhs, appointed Seema Sharma (Respondent No.4 in the
contempt petition) as a Managing Director on 2nd June 2008. Earlier on 12th May
2008 a mortgage was created in favour of one Baljit Singh (Respondent No.5 in
the contempt petition) for a loan of Rs.7,76,00,000. It is alleged that
Respondents 4 and 5 were in total control of Hotel Clairmont. It is submitted
that by this method the CCP No.180/2008 & CS(OS) No. 276/2007 page 9 of 24
Respondents 2 and 3 had in willful disobedience of the interim orders, created
a third party interest on the property at Aya Nagar, Mehrauli, New Delhi in
favour of the said Baljit Singh. A cash receipt evidencing the loan taken from
Baljit Singh and photocopies of Form 8 and Form 23 filed pursuant to Sections
125, 127, 132 and 135 of the Companies Act, 1956 have been placed on record. As
regards the property at Sultanpur Farms, Mehrauli, New Delhi it was averred in
para 13 “Respondents 1-3 have also apparently sold 32, Sultanpur Farms,
Mehrauli, New Delhi in violation of the undertaking given to this Honble
19. In reply to the contempt petition it was pointed out by
Defendants/Respondents 2 and 3 that they had in fact not violated or willfully
disobeyed any of the orders passed by this Court. It was submitted that the
learned MM in fact did not continue the restraint orders vis-a-vis the property
at 32, Sultanpur Farms, Mehrauli, New Delhi beyond 18th December 2006.
Therefore as on 15th February 2007 when the suit was listed before this Court
an erroneous statement was made on behalf of the Defendants to this court by
their counsel that the said restraint order will be continued to be obeyed by
them. The other statements made from time to time including the one on 6th June
2007 are also stated to have been made under some mistaken impression that the
interim order passed by the learned MM prior to 18th December 2006 was
continuing. It is contended that the interim order passed by this Court was not
continued in any event beyond CCP No.180/2008 & CS(OS) No. 276/2007 page 10 of
24 22nd May 2008. The sale deed was executed only thereafter on 9th June 2008
and therefore as regards the property at 32, Sultanpur Farms, Mehrauli, New
Delhi the sale by Respondent/Defendant No.3 to Aarken Advisors Pvt.Ltd. was not
in disobedience of the interim order dated 15 th February 2007. As regards the
property at Aya Nagar, Mehrauli it is submitted that the property was purchased
by FMPL by virtue of a sale deed dated 29th March 2006 much prior to the
commencement of the matrimonial dispute. It is denied that there has been any
alleged transfer of shares which can amount to a disobedience of the interim
order passed by this Court. It is denied that the Respondents had sold their
interests in the property as alleged by the plaintiff.
20. The case of Respondent No.6 is that he is a bonafide purchaser. It is
pointed out that as early as on 17th November 2006 an agreement was executed
whereby by Respondent/Defendant No.3 agreed to sell the property at 32,
Sultanpur Farms, Mehrauli, New Delhi to Respondent No.6. Of the total
consideration of Rs.15 crores for which the property was agreed to be sold, a
sum of Rs.5 crores already stood paid to Defendant No.3 even prior to the
execution of the sale deed. It is submitted that although in para 25 of the
plaint the Plaintiff acknowledges that she was aware of the sale transaction,
and even named Respondent No.6, she chose not to make Respondent No.6 as a
necessary and appropriate party to the suit. It is submitted that the interim
order which was adverse to the Respondent No.6 CCP No.180/2008 & CS(OS) No.
276/2007 page 11 of 24 was obtained behind the back of Respondent No.6 by the
Plaintiff. It may be mentioned here that Respondent No.6 has also filed IA No.
9047 of 2009 seeking to intervene in IA No. 4037 of 2009 filed by Defendants
under Order VII Rule 11 CPC.
21. The submissions of Mr. Y.P.Narula, learned Senior counsel appearing for the
Plaintiff, Mr. Sandeep Sethi, learned Senior counsel appearing for the
Defendants and Mr. T.K. Ganju, learned Senior counsel appearing for Respondent
No.6 have been heard.
22. It is submitted by Mr. Narula that a perusal of the sale deed dated 29 th
March 2006 by which the property at Aya Nagar was purchased by FMPL would show
that it was in fact a sham transaction. The sale was made by Defendant No.1 to
FMPL a company of which Defendant No.2 was the Director. In fact, Defendant
No.2 himself signed the sale deed as a power of attorney of Defendant No.1. It
was submitted that this was only to defeat the rights of the Plaintiff. It is
further submitted that the parties were attempting to settle their disputes and
on 29th March 2007 the learned Additional Sessions Judge while dealing with the
proceedings under the PWDVA recorded the terms of settlement. In terms thereof
a sum of Rs.4 crores and property worth Rs.60 lakhs was to be given to the
Plaintiff. However the Respondents at the last moment backed out of the
settlement leaving the Plaintiff without any option but to pursue the
proceedings under the CCP No.180/2008 & CS(OS) No. 276/2007 page 12 of 24
PWDVA. It is submitted that there are averments in the plaint which at this
stage have to be taken at its face value, which show that the funding for the
properties both at Aaya Nagar as well as Sultanpur Farms was provided by
Defendant No.1. According to the Plaintiff her claim for maintenance is
essentially against Defendant No.1 and in order to recover maintenance she lays
claim to the properties of Defendant No.1 which are held benami.
23. It is pointed out by Mr. Narula that the bar under the Benami Transactions
(Prohibition) Act, 1998 (Benami Act) would not apply in such instances because
the Plaintiff is not seeking any declaration vis-a-vis these properties as a
rightful owner herself. The Plaintiff is only claiming that her husband
Defendant No.1 is a rightful owner and that these properties should be made
available for her to recover maintenance due to her from him. Likewise, the
claim for maintenance under the HAMA is also essentially against the husband.
Insofar as the properties are being held benami by either Defendants 2 or 3,
they become necessary parties to the suit. It is further submitted that
Respondent No.6 is not a bonafide purchaser as the agreement to sell dated 17th
November 2006 did not create any right in his favour. Section 54 of the
Transfer of Property Act is referred to. The Plaintiff contests the claim of
Respondent No.6 that he is a bonafide purchaser of the property at 32,
Sultanpur Farms, Mehrauli, New Delhi. CCP No.180/2008 & CS(OS) No. 276/2007
page 13 of 24
24. Mr. Narula also refers to the definition of the word fiduciary as set out
in the Law Lexicon-cum-Digest and refers to Section 16 of the Indian Contract
Act, 1872 to contend that Defendant No.3 was entirely under the control of her
son as far as the transaction by which she either got title to the property at
32, Sultanpur Farms, Mehrauli, New Delhi or sold it subsequently to Respondent
No.6. In the circumstances, according to Mr. Narula, there is no need for a
specific prayer to seek cancellation of the documents of title by which
Defendant No.3 was claiming to be the sole owner of the said property or of her
right to convey absolute title by way of a sale to Respondent No.6.
25. On behalf of Defendants 2 and 3 it is submitted by Mr. Sethi that the sale
deed dated 9th June 2008 executed by Defendant No.3 in favour of Respondent
No.6 was not in fact in willful disobedience of any interim order passed by
this Court. Referring to the judgment of the Supreme Court in Ashok Kumar v.
State of Haryana (2007) 3 SCC 470 he pointed out that the interim order cannot
be said to have been extended beyond 22nd May 2008. It is pointed out that
there is a bar to laying a claim for maintenance against Defendants 2 and 3
under Section 18 HAMA. That section makes it absolutely clear that such a claim
is maintainable only against the husband. Reference is made to the judgment of
the Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel
(2008) 4 SCC 649. CCP No.180/2008 & CS(OS) No. 276/2007 page 14 of 24
26. Mr. Sethi also questions the resort to filing of the contempt petition for
alleged disobedience of the interim orders passed by this Court. The
appropriate remedy would be to file a petition, if any, under Order XXXIX Rule
2A CPC. Reliance is placed on the judgment in Ishwar Industries Ltd. v. The
Crocus Chattels Pvt. Ltd. 128 (2006) DLT 10. Mr. Sethi also distinguishes the
judgment in Radhika Narang v. Kuldeep Narang 156 (2009) DLT 637 (DB) relied
upon by Mr. Narula as the question whether the Plaintiff is entitled to seek
maintenance at all under Section 18 HAMA against her father-in-law or mother-
in-law was not decided in the said case.
27. Essentially on the same averments the Defendants 2 and 3 have filed IA No.
4037 of 2009 under Order VII Rule 11 CPC. The specific ground on which
rejection of the plaint is sought is that the suit as presently formed does not
disclose any cause of action vis-a-vis Defendants 2 and 3. It is submitted no
claim for maintenance can be made against either of them under Section 18 HAMA.
The claim to the immovable properties owned either by FMPL absolutely or
Defendant No.3 in her individual capacity, which was subsequently sold to
Respondent No.6, would be barred under Section 4 read with Section 2 of the
Benami Act. In any event there is no prayer for cancelling the title deeds by
which these parties became the legal owners of the properties in question.
Inasmuch there is an express bar to the in-laws to the relief being granted,
the plaint be rejected as regards Defendants 2 and 3.
CCP No.180/2008 & CS(OS) No. 276/2007 page 15 of 24
28. The Court would first like to take up for consideration the issue whether
Defendants 2 and 3 can be said to be in contempt of the order dated 15th
February 2007 passed by this Court in IA No. 1711 of 2007.
29. A perusal of the record of proceedings in petition under the PWDVA before
the learned MM shows that the interim order restraining the Respondents from
transferring or creating third party interests in respect of property at 32,
Sultanpur Farms, Mehrauli, New Delhi was not continued beyond 18th December
2006. Clearly on the date (15th February 2007) the statement was made before
this court by learned counsel for Defendants that the Defendants would abide by
the said interim order passed by the learned MM, the said order was not
operative. Nevertheless, this Court is not prepared to go only by this
position. As long as learned counsel for the Defendants did undertake before
this Court that the Defendants would abide by the order of the learned MM, even
if it had come to an end by that date, it should be taken that the Defendants
bound themselves not to alienate, sell or create third party interest in
respect of the said properties.
30. For the same reason this Court is prepared to accept the submissions of
learned counsel for the Plaintiff that this position continued at least till 22
nd May 2008. The difficulty however is that the interim order which was
continued by this Court till 22nd May 2008 was not continued thereafter. A
perusal of the order dated 22nd May 2008 as extracted hereinbefore shows CCP
No.180/2008 & CS(OS) No. 276/2007 page 16 of 24 that the case was listed
thereafter only on 17th November 2008 by which time the sale deed had been
executed. A similar question was considered by the Supreme Court in Ashok Kumar
v. State of Haryana (2007) 3 SCC 470. It was held in paras 12 and 13 as under:
“12. The term of the order of the learned Judge, in our opinion, does not leave
any manner of doubt whatsoever that the interim order was only extended from
time to time. The interim order having been extended till a particular date, the
contention raised by the respondents herein that they were under a bona fide
belief that the injunction order would continue till it was vacated cannot be
13. In our considered opinion, the purport of the order passed
by the learned Civil Judge, Senior Division, Panipat, in extending the order of
injunction is absolutely clear and explicit. It may be true that the date was
preponed to 28-7-1988, but from a bare perusal of the order passed by the
learned Civil Judge, Senior Division, it is evident that the order of injunction
was not extended. Even on the subsequent dates, the order of injunction was not
extended. In fact, no order extending the period was passed nor any fresh order
of injunction was passed by the learned Civil Judge, Senior Division, subsequent
It is not possible therefore for this Court to accept the submissions of the
Defendants that the execution of the sale deed dated 9 th June 2008 was in
violation of an interim order passed by the court as far as the property at 32,
CCP No.180/2008 & CS(OS) No. 276/2007 page 17 of 24 Sultanpur Farms, Mehrauli,
New Delhi is concerned.
31. As regards the property at Aya Nagar, Mehrauli, New Delhi, this Court is
really not called upon to decide whether the sale deed dated 29 th March 2006
by which this property was sold to FMPL was a sham transaction. There is no
prayer sought for in the suit in that regard. In any event the said transaction
obviously took place long before any interim order was passed in respect
thereof by any court. While the documents placed on record prima facie show
that a loan of Rs.7.76 crores was taken from Baljit Singh by FMPL, they do not
describe the property on which the charge was created. Significantly, FMPL is
itself neither a party to the suit nor a party to the contempt petition. It
cannot therefore be urged that the interim order dated 15th February 2007 bound
FMPL. There has been no attempt by the Plaintiff to implead the said entity
either in the suit or in the contempt petition. In the circumstances, this
Court is unable to hold that Defendants 2 or 3 or any of the other Respondents
are liable for contempt as having violated the order dated 15th February 2007
which was continued till 22nd May 2008.
32. In view of the above findings this Court finds no merit in the contempt
petition and it is dismissed as such. The contempt notices to the
respondents/contemnors stand discharged.
IA No.4037/2009 in CS (OS) No. 276/2007
33. Now the Court takes up for consideration the application under Order CCP
No.180/2008 & CS(OS) No. 276/2007 page 18 of 24 VII Rule 11 CPC. The suit is one
under Section 18 HAMA. A perusal of the said Section shows that the wife is
entitled to claim maintenance only from her husband and not from any other
relation to her husband. The definition of word maintenance under Section
3(b)(i) read with Section 18 makes it apparent that no claim for maintenance
can be made under Section 18 HAMA by a wife against either the father-in-law or
the mother-in-law. A similar question arose for consideration before the
Supreme Court in Vimlaben Ajitbhai Patel. After referring to Sections 4 and 18
HAMA, it was observed as under in para 24:
“24. Section 4 provides for a non obstante clause. In terms of the said
provision itself any obligation on the part of in-laws in terms of any text,
rule or interpretation of Hindu Law or any custom or usage as part of law before
the commencement of the Act, are no longer valid. In view of the non obstante
clause contained in Section 4, the provisions of the Act alone are applicable.
Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance
of wife by her husband and only on his death upon the father-in-law, Mother-in-
law, thus, cannot be fastened with any legal liability to maintain her daughter-
in-law from her own property or otherwise.”
The other observation in para 27 of the same judgment about the wife being
entitled to higher right under the PWDVA does not really advance the case of
the Plaintiff here. In any event as already noticed, the petition filed by the
Plaintiff under the PWDVA has been dismissed for default. As such, CCP
No.180/2008 & CS(OS) No. 276/2007 page 19 of 24 therefore, the prayer in the
suit for grant of maintenance is incapable of being granted to the Plaintiff
insofar as Defendants 2 and 3 are concerned.
34. The case made out in the plaint is that the property at 32, Sultanpur
Farms, Mehrauli, New Delhi is being held by Defendant No.3 as benami for
Defendant No.1, her son. In this context the provisions of the Benami Act
require to be noticed. The expression benami is defined under Section 2(a) to
mean “any transaction in which property is transferred to one person for a
consideration paid or provided by another person.” Under Section 3(1) there is
a bar to any person entering into a benami transaction. The only exception
carved out is under Section 3(2) which states that such a bar would not apply
to the purchase of a property by any person either in the name of his wife or
unmarried daughter. Clearly, the prohibition would apply if the property is
purchased in the name of the mother. Section 4 of the Benami Act imposes a
complete prohibition on the right to recover a property held benami. Section 4
reads as under:
“(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 CCP No.180/2008 & CS(OS) No. 276/2007 page 20
of 24 any suit, claim or action by or on behalf of a person claiming to be the
real owner of such property.
(3) Nothing in this section shall apply,–
(a) where the person in whose name the property is held is a coparcener in a
Hindu undivided family and the property is held for the benefit of the
coparceners in the family; or (b) where the person in whose name the property
is held is a trustee or other person standing in a fiduciary capacity, and the
property is held for the benefit of another person for whom he is a trustee or
towards whom he stands in such capacity.”
35. It is plain from Section 4(1) that no suit shall lie to enforce any right in respect of any property held benami against the person in whose name the property is held. Even if one were to stretch the argument, as is sought to be done by the Defendants, the plaintiff cannot claim ownership to the suit properties but only lay claim for recovering maintenance from Defendant No.1,who according to her is the real owner of such property. Such a prayer in any event cannot be made on account of Section 4(1) Benami Act. It was sought to be contended that under Section 4(3)(b) Defendant No.3 was holding the property in fiduciary capacity for Defendant No.1. This event is neither pleaded nor substantiated even prima facie through any document filed along with the plaint. Even if the plaint is read as it stands, no case is made out to show that Defendant No.3 was in fact holding the CCP No.180/2008 & CS(OS) No.
276/2007 page 21 of 24 property at 32, Sultanpur Farms, Mehrauli, New Delhi in any fiduciary capacity for Defendant No.1. Viewed from any angle, the bar under Section 4 of the Benami Act would apply and prevent the Plaintiff from claiming any relief vis-a-vis the properties shown to be owned by Defendant No.3 and FMPL.
36. There is merit in the contention of Defendant 2 and 3 that the suit should also fail for not seeking any relief of cancellation of the title deeds under which the properties are held either by FMPL or at present by Respondent No.6.For all of the above reasons, this Court is of the view that prayer of Defendants 2 and 3 in the application under Order VII Rule 11 CPC should succeed. The plaint is accordingly rejected vis-a-vis Defendants 2 and 3. IA No. 9739/2009 in CONT. CAS(C) No.180/2008
37. In view of the orders passed in the Contempt Petition, the application is disposed of.
IA No. 12163/2008 in CONT. CAS(C) No.180/2008
38. The interim order dated 17th November 2008 in the present application will stand vacated.
39. The application is dismissed.
IA No. 7940/2009 in CS (OS) No.276/2007
40. In terms of the order passed in IA No. 4037 of 2009 under Order VII CCP No.180/2008 & CS(OS) No. 276/2007 page 22 of 24 Rule 11 CPC, the application is disposed of.
IA No. 1711/2007 in CS (OS) No.276/2007
41. It is submitted by learned counsel for Defendants 2 and 3 that the interim order dated 12th March 2007 restraining Defendant No.1 from pursuing the proceedings in the UK courts does not survive on account of the fact that a decree of divorce has in fact been granted by that court in favour of Defendant No. 1. In that view of the matter, the said interim order also stands vacated as having become infructuous.
42. The application stands dismissed.
IA No. 1712/2007 in CS (OS) No.276/2007
43. For the reasons stated in the application, it is allowed and disposed of as such.
IA No. 8904/2007 in CS (OS) No.276/2007
44. In terms of the order passed today, the application stands disposed of.CS (OS) No.276/2007
45. Despite filing written statement Defendant No.1 is not appearing. He is accordingly set ex parte.
46. The Plaintiff will file her affidavit by way of evidence before the learned CCP No.180/2008 & CS(OS) No. 276/2007 page 23 of 24 Joint Registrar by the next date of hearing.
47. List before the learned Joint Registrar on 27th October 2009 for further proceedings.
S. MURALIDHAR, J.
AUGUST 18, 2009