IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 824 of 2010 & IA Nos. 5600 of 2010 (u/O 39 R 1 & @
CPC), 8351, 8352 of 2010 (u/S 16 r/w O VII R 11 CPC), 13922 of
2012 (u/O XII R 6 CPC), 16912 of 2012 (u/O VI R 17 CPC)
HEMANT SATTI ….. Plaintiff
Through: Mr. Gaurav Mitra with
Mr. Vijayender Kumar, Ms. Samreen and Ms. Megha Bansiwal, Advocates.
MOHAN SATTI & ORS. ….. Defendants
Through: Mr. Rahul Sharma, Advocate for D-1. Ms. Jyoti D. Sharma, Advocate for D-2.
CORAM: JUSTICE S. MURALIDHAR
07.11.2013 I.A. No. 8351 and 8352 of 2010 (u/S 16 r/w O VII R. 11 CPC)
1. The credentials to these applications is that a aforementioned fit has been filed by Mr. Hemant Satti opposite his brother, Mr. Mohan Satti (Defendant No. 1), his mom Mrs. Chander Kanta Satti (Defendant No. 2), his sister Mrs. Rachana Mundepi (D-3) and his other sister Mrs. Madhu Preet Kaur (D-4) for assign and permanent injunction.
2. The box of a Plaintiff is that late Mr. Tek Chand Satti, a father of a Plaintiff and Defendants 1, 3 and 4 and a defunct father of Defendant No. 2 had, during his life time, amassed a substantial volume of supports and had, on 24th Sep 2004, purchased residence No. 967, Type – I, Haryana Housing Board Colony, Saraswati Vihar, Gurgaon admeasuring 100 sq. yds (hereafter a ‘Gurgaon property’) for a care of Rs. 1,55,585.
3. It is serve settled that during a same time, Mr. Tek Chand Satti purchased another ability during R-18/2, 1st Floor, Ramesh Park, Laxmi Nagar, Delhi- 110092 (hereafter a ‘Delhi property’). However, a vehicle help was executed in a name of his wife, i.e., Defendant No. 2.
4. In para 7 of a plaint, it is settled as under:
“7. It is respectfully submitted that given a squeeze of a ability situated during R-18/2, 1st Floor, Ramesh Park, Laxmi Nagar, Delhi – 110092, a pronounced ability was during all times treated as Joint Family Property of Late Mr. Tek Chand Satti and his family members and that a Defendant No.2 was holding a pronounced ability in trust for others. It is submitted that compartment a date of filing of a benefaction suit, a pronounced ability has been understood, treated and believed as co-owned ability of all a authorised heirs of Late Mr. Tek Chand Satti as a corner family ability for a common advantage and delight by all such authorised heirs.”
5. The box of a Plaintiff is that late Mr. Tek Chand Satti authorised a Plaintiff and his family members to reside during a Gurgaon ability and in identical conform authorised Defendant No. 1 together with his family members to reside during a Delhi property. The Plaintiff is settled to be in possession of a Gurgaon ability as of date and Defendant No. 1 of a Delhi property. Apart from these dual determined properties, it is settled that Mr. Tek Chand Satti left behind shares and debentures of several companies and these 3 equipment have been collectively referred to in a wail as fit properties.
6. The Plaintiff states that after a flitting of Mr. Tek Chand Satti, he requested Defendant No. 1 that a fit properties be partitioned in a ratio of 1/5th share any in foster of a authorised member of late Mr. Tek Chand Satti, a father. It is serve settled that a Defendant No.1 deserted this ask and serve threatened to banish a Plaintiff from a Gurgaon property. In a above circumstances, a fit was filed for a rough direct of assign in honour of a fit properties followed by a multiplication of a properties by metes and end by flitting a final direct of partition.
7. While directing summons to be released on 30th Apr 2010, an sequence was upheld by this Court confining a Defendants from formulating any third celebration seductiveness in honour of a Gurgaon ability and also say standing quo with courtesy to a shares and debentures in a several companies a list of that has been filed along with a plaint. As regards a Delhi property, a Court celebrated that given it was in a name of a mom and a mom was alive, “prima facie a plaintiff is not entitled to any share in a pronounced property”.
8. Thereafter a Defendant No. 2 filed IA 8351 of 2010 and Defendant No. 1 filed IA 8352 of 2010 both underneath Order VII Rule 11 CPC for rejecting of a plaint. This was coexisting with a created statements filed by both of them. In both applications, it is submitted that a fit is not maintainable on a drift (a) that a Court lacks territorial office as distant as a Gurgaon ability is endangered and (b) that a fit is bad in law. It is settled by Defendant No. 2 that a Delhi ability was not purchased out of a supports of late Mr. Tek Chand Satti or a Plaintiff or a Defendants 3 and 4. It is settled that a Delhi ability was purchased on 10th Apr 2000 in a name of a Defendant No. 2 though a whole sale care was indeed paid by Defendant No. 1 and his mom out of their possess funds. It is settled that a pretension papers were purebred in a name of Defendant No. 2 with a bargain that whenever she felt a need, she would send a Delhi ability in a name of Defendant No. 1 or his mom and nobody else. It is settled that after a squeeze of Delhi ability in Apr 2000, a Defendant No. 1 and his mom changed in a Delhi ability and had been staying with their family. As distant as a Gurgaon ability is concerned, it is settled that it is outward a territorial boundary of a Court and, therefore, a Court has no office to understanding with a pronounced property. As regards a shares and debentures, it is settled to be jointly owned by late Mr. Tek Chand Satti and Defendant No. 2 and therefore no explain could distortion on a pronounced properties compartment such time Defendant No. 2 was alive.
9. In a respond filed to a aforementioned applications, it is reiterated by a Plaintiff that a Delhi ability was not purchased out of a supports supposing by Defendant No. 1 or his mom though by late Mr. Tek Chand Satti. As regards a Gurgaon property, it is contended that an emanate concerning territorial office could be framed and set down for trial. On 6th Aug 2012, a Plaintiff filed IA 16912 of 2012 seeking amendment of a wail to counterclaim a send of a Delhi ability by Defendant No. 2 to Defendant No. 1 on 20th May 2010 by a purebred sale help as nothing and void.
10. This Court has listened a submissions of Mr. Gaurav Mitra, schooled warn appearing for a Plaintiff and Mr. Rahul Sharma and Ms. Jyoti Dutt Sharma, schooled warn for Defendant No. 1 and Defendant No. 2 respectively.
11. Mr. Mitra referred to Section 2 review with Sections 3 and 4 of a Benami Transactions (Prohibition) Act, 1988 [‘BTA’] as good as Section 14 of a Hindu Succession Act, 1956 (‘HSA’) to contend that a counterclaim of benami transaction lifted by a Plaintiff in honour of a Delhi ability was defensible notwithstanding Section 14 of a HSA. A anxiety was done to Mayne’s Treatise on Hindu Law & Usage (15th Edition) 2003 @ p.1166. In sold a anxiety is done to a reason underneath Section 14 of HSA to a outcome that “unless it is shown that (the Hindu female) she is usually a benamidar, or a squeeze by her was in trust for another, it is her comprehensive ability underneath Section 14(1)”. Reliance is also placed on a decisions in Nand Kishore Mehra v. Sushila Mehra (1995) 4 SCC 572 and Gangamma v. G. Nagarathnamma (2009) 15 SCC 756 to contend that a Plaintiff would be entitled to infer during a hearing that a squeeze of a Delhi ability by late Mr. Tek Chand Satti in a name of Defendant No.2 was not in fact for a advantage of Defendant No.2 and in that eventuality a bar underneath Section 3 of a BTA would not apply. As distant as a Gurgaon ability is concerned, it is submitted that doubt presumably a Court lacks territorial office could be motionless during a time of trial. In any eventuality underneath Section 17 of a CPC where one of a properties sought to be partitioned falls within a territorial office of a Court, a Plaintiff is entitled to proceed this Court for service in honour of both a properties.
12. Mr. Rahul Sharma and Ms. Jyoti Dutt Sharma, schooled warn appearing for Defendant No. 1 and Defendant No. 2 respectively, on a other hand, submitted that admittedly a Delhi ability was in a name of a Defendant No. 2 and has now been eliminated to Defendant No. 1 underneath a purebred sale deed. The counterclaim set adult by a Plaintiff, according to them, is clearly barred underneath Section 3 of a BTA given it is not even a Plaintiff’s box that a Delhi ability was not purchased for a advantage of Defendant No. 2. As regards a Gurgaon property, it is submitted that inasmuch as it is outward a territorial office of this Court, no service in honour thereof can be granted. The shares and debentures are admittedly in a corner names of late Mr. Tek Chand Satti and Defendant No. 2 and during her life time no assign could be sought of that ability either.
13. Section 14 of a HSA reads as under:
“14. Property of a womanlike Hindu to be her comprehensive Property.
(1) Any ability hexed by a Female Hindu, presumably acquired before or after a derivation of this Act, shall be hold by her as full owners thereof and not as a singular owner.
Explanation.–In this sub-section, “property” includes both mobile and determined ability acquired by a womanlike Hindu by estate or devise, or during a partition, or in lieu balance of maintenance, or by benefaction from any person, presumably a relations or not, before, during or after her marriage, or by her possess ability or exertion, or by squeeze or by prescription, or in any other demeanour whatsoever, and also any such ability hold by her as stridhana immediately before a derivation of this Act.
(2) Nothing contained in sub-section (1) shall request to any ability acquired by approach of benefaction or underneath a will or any other instrument or underneath a direct or sequence of a polite justice or underneath an endowment where a terms of a gift, will or other instrument or a decree, sequence or endowment allot a singular estate in such property.”
14. As explained by a Supreme Court in Gangamma v. G. Nagarathnamma, Section 14(1) HSA contemplates that a womanlike Hindu becomes a full owners of a ability that comes into her possession and she has also all a powers of showing of such property. The pronounced preference reiterated what was explained in an progressing preference in Punithavalli Ammal v. Minor Ramalingam (1970) 1 SCC 570 that a rights conferred underneath Section 14(1) HSA are not singular or singular by any sequence of Hindu law.
15. The outcome of Section 3(2) review with Section 4(2) of a BTA was deliberate in Nand Kishore Mehra v. Sushila Mehra. It was simplified by a Supreme Court as underneath (SCC @ p. 575-76):
“6……..it has to be done transparent that when a fit is filed or counterclaim is taken in honour of such benami transaction involving squeeze of ability by any chairman in a name of his mom or unwed daughter, he can't attain in such fit or counterclaim unless he proves that a ability nonetheless purchased in a name of his mom or unwed daughter, a same had not been purchased for a advantage of presumably a mom or a unwed daughter, as a box might be, given of a orthodox hypothesis contained in sub-section (2) of Section 3 that unless a discordant is valid that a squeeze of ability by a chairman in a name of his mom or his unwed daughter, as a box might be, was for her benefit.”
16. The common reading of both supplies creates a following position clear:
(i) The right underneath Section 14(1) HSA accruing to a Hindu womanlike in honour of a ability in her possession is comprehensive and untrammelled. It includes ability that comes to her by merger or “in any other demeanour whatsoever”, and not singular to squeeze of a property. She is giveaway to understanding with a ability in any demeanour that she pleases.
(ii) The position underneath Section 3(2) BTA can be harmonised with Section 14 HSA. Section 3(2) BTA does not intermix a right of a Hindu womanlike to her ability underneath Section 14(1) HSA. It is usually where it is means to be valid underneath Section 3(2) BTA that a ability purchased by a father of a Hindu womanlike in her name was not for her benefit, could a counterclaim to her comprehensive right thereto be entertained.
(iii) However, in sequence to infer such a defence, it has to be pleaded, in a initial place, to be pleaded.
17. In a benefaction case, on a plain reading of a wail it is transparent that a Plaintiff is environment adult a counterclaim of a benami transaction in honour of a Delhi property. His specific counterclaim is that nonetheless a Delhi ability stood in a name of mother, it in fact belonged to his father given it was his father who paid a whole sale consideration. If it is a benami transaction, afterwards underneath Section 3 of a BTA it can't be accorded any approval unless a Plaintiff is means to move his box underneath a exceptions underneath Section 3(2) BTA. In other words, to equivocate a bar of Section 3 BTA a Plaintiff would have to beg and afterwards infer that a fit ability was in fact not acquired for a advantage of his mother.
18. Mr. Mitra regularly referred to para 7 of a wail and urged that given a counterclaim was that a mom was holding a Delhi ability in trust for a corner family, a inference was that such ability was in fact was not acquired for her benefit. Even while surrender that this was not privately pleaded, he submitted that it should be unspoken from a reading of paras 1 to 6 with para 7 of a plaint.
19. This Court is incompetent to accept a above acquiescence of Mr. Mitra. The wail should be review as it is. It apparently can't be review as statute. In other words, a Court can't presumably review into a plaint, difference that do not find a place therein. Nowhere in para 7, or for that matter in a progressing plaint, is it settled that a Delhi ability was not acquired for a advantage of a mother. When there is no counterclaim to that outcome in a initial place, a doubt of proof that a Delhi ability was not acquired for a advantage of a mother, simply does not arise. It is a fatuous practice to assent a Plaintiff to lift such a counterclaim during this belated stage. Interestingly even in a focus for seeking amendment to a plaint, a Plaintiff does not find to rectify para 7 of a wail to incorporate such a plea. Consequently, a Plaintiff can't find to move a box underneath a difference in Section 3(2) of a BTA and equivocate a bar underneath Section 3(1) BTA opposite lifting a counterclaim of a benami transaction as regards a Delhi property. The Delhi ability belonged positively to Defendant No.2 and she was giveaway to understanding with it in any approach that she gratified during her lifetime.
20. Consequently, therefore, a Plaintiff can't be postulated a service of assign in honour of a Delhi property. Such a service would be barred underneath Order VII Rule 11(d) CPC.
21. As regards a Gurgaon property, there can be no demeanour of doubt that it is outward a territorial office of a Court. Consequently if no service can be postulated in honour of a Delhi property, a doubt of interesting a fit for a purpose of Gurgaon ability alone does not arise. It will be, however, open to a Plaintiff to find suitable remedies in honour of a Gurgaon ability in suitability with law in a justice of suitable jurisdiction.
22. As regards a shares and debentures, given they were in a corner names of a Plaintiff’s late father and Defendant No. 2 and it has now come wholly to a share of Defendant No. 2, a doubt of seeking their assign during her life time does not arise. Therefore, nothing of a prayers in a fit can be entertained in law.
23. The applications are accordingly authorised and a wail is deserted with autocracy to a Plaintiff to find service in honour of usually a Gurgaon ability in other suitable record in suitability with law. The halt sequence is vacated. All tentative applications are likely of.
S. MURALIDHAR, J.
NOVEMBER 07, 2013