SHRI CHARANJEET SINGH & ANR. v. SHRI HARVINDER SINGH & ANR.

counsel appearing for defendant No. 2 and Ms. Prabhsahay Kaur, learned counsel appearing for defendant No. 1; as also Mr. Pawanjit Singh Bindra learned senior counsel appearing for the plaintiffs. Counsel for the parties have also filed their respective written submissions in the matter. Submissions on behalf of defendant No.2 (applicant)

6. Seeking rejection of the plaint by way of the application under consideration, defendant No.2 has raised the following contentions:

6.1. Defendant No.2 states that the plaint itself recites that the subject property was purchased in her name, and title therein was conveyed to her vide Sale Deed dated 27.03.1992. Defendant No.2 submits accordingly, that she is accordingly the sole and absolute owner of the subject property and therefore the prayer for declaring the subject property as „joint property‟ or seeking its partition is not maintainable. She in fact asserts, that the subject property is her self-acquired property;

6.2. Defendant No.2 further points-out, that the falsity of the plaintiffs‟ claims is evident from the contradictory pleas they have taken in the plaint. For one, the plaintiffs allege that the subject property is „partnership property‟ belonging to the partnership firm in which they are partners; next, the plaintiffs claim that the subject property is „joint property‟ held by the family members; and then, the plaintiffs contend that the subject property is held by defendant No.2 in a fiduciary capacity for and on behalf of the partnership firm. Defendant No.2 argues that all these claims are mutually contradictory, apart from there being no specifics, particulars or support for any of the claims, either by way of clear averments in the plaint or even by reference to the documents filed alongwith the plaint;

6.3. Insofar as the claim of the subject property being partnership property is concerned, defendant No.2 points-out that there is nothing in the plaint to explain, even by way of an averment, as to how the subject property came to be partnership property. There is no allegation in the plaint that the subject property was purchased by the partnership firm; nor that the property was purchased in the names of the partners; nor that defendant No.2 is one of the partners in the partnership firm; nor even that the subject property has been shown in the Income Tax Returns or any other returns or documents filed, as the property of the partnership firm;

6.4. It is further pointed-out that there is also no averment in the plaint to show how defendant No.2 is holding the subject property in a fiduciary capacity for the plaintiffs. It is submitted that nowhere is it stated in the plaint that defendant No.2 was one of the partners of the partnership firm. On point to fact, it is the admitted case between the parties that defendant No. 2 was never a partner of the partnership firm. Furthermore, defendant No.2 submits, that the subject property is also clearly out of the purview of sections 14 and 15 of the Indian Partnership Act, 1932 („Partnership Act‟), which provisions read as under:

More specifically, it is pointed out that the bald allegation that the subject property was purchased from the funds of the partnership firm is explained in the plaint itself in the following words: “By paying monies from the firm to third parties and thereafter receiving cheque in lieu thereof from third parties in the name of Defendant No.2, suit property has been purchased ”. It is argued that in view of the foregoing categorical averment in the plaint, it is evident that the subject property was not purchased from the funds of the partnership firm. Besides, once it stands admitted that the title to the subject property vests in defendant No. 2, the vague and bald assertion in the plaint that construction on the subject property was carried-out from the funds of the partnership firm loses any meaning, since the reliefs of declaration and partition are being sought of the subject property as a whole and not only of the superstructure;

6.5. Furthermore, defendant No.2 contends, that there is also no allegation, muchless anything to substantiate an allegation, that the subject property is „joint family property‟. There is no allegation in the plaint that the subject property belonged to any „joint family‟; or that there was ever an HUF to which the subject property belonged; nor even an allegation that defendant No.2 was ever a coparcener of any such HUF; nor any allegation that the subject property was declared as „joint family‟ property in any official filings or records;

6.6. Insofar as the allegation in the plaint that the subject property is being held by defendant No.2 as part of a „family settlement‟, it is submitted on behalf of defendant No. 2 that this allegation also does not require any consideration for the reason firstly, that defendant No.2 is not a signatory to the said alleged family settlement; secondly, the alleged document purporting to be a family settlement does not record that it is a „memorandum‟ recording an oral family settlement, and if by way thereof, title to the subject property was conferred in favour of defendant No. 2, the alleged family settlement ought to have been registered as required in law, which it is not. It is contended, that by reason of non-registration, the purported family settlement is inadmissible in evidence. It is pointed-out that even assuming the alleged family settlement to be genuine and admissible, there is no averment in the plaint to say how the subject property came to be transferred solely in the name of defendant No.2 by way of a registered sale deed in 1992, when the family settlement was admittedly signed only in 2013;

6.7. As for the relief of seeking cancellation of Sale Deed dated 27.03.1992, defendant No.2 contends that the prayer to that effect is clearly barred by time, inasmuch as the limitation for seeking cancellation of a document is 03 years as provided in Article 59 of the Schedule to the Limitation Act, 1963 („Limitation Act‟). It is contended that since it is the plaintiffs‟ own case that funds belonging to the partnership firm were used for purchasing the subject property vide Sale Deed dated 27.03.1992, plaintiff No. 1, who was one of the partners, had knowledge of the said sale deed at the stage of execution itself. Besides, in any case, the alleged family settlement relied upon by the plaintiffs also mentions that the subject property will be handed-over and registered in favour of defendant No. 1. This is stated to have been an oral family arrangement to begin with, which was reduced to writing in February 2013. Therefore, at the latest, in February 2013, the plaintiffs knew that the subject property stood conveyed to defendant No. 2 vide Sale Deed dated 27.03.1992. However, the present suit has come to be filed only on 10.09.2018, which is well-beyond the 03 year limitation period, whether reckoned from the date of execution of the sale deed or the date of the alleged family settlement. The suit is therefore clearly barred by limitation;

6.8. On point of law, it is submitted that since it is the plaintiffs‟ case that the subject property was purchased and/or constructed using funds of the partnership firm but in the name of defendant No. 2, then such claim is precisely what is barred under section 4 of the Prohibition of Benami Property Transactions Act, 1988 („Benami Transactions Act‟), which reads as under:

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 such 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 property has been provided or paid out of the known sources of the individual; or (B) * * * * * (D) ” It is argued that defendant No.2 does not fall within the category of “a person standing in a fiduciary capacity for the benefit of another person” merely because she is the wife of one of the partners of the partnership firm (viz. defendant No.1); other exceptions being clearly inapplicable to defendant No. 2. It is emphasised that the plaintiffs nowhere allege that defendant No. 2 is or was herself a partner;

6.9. Though not relevant for purposes of deciding the application under Order VII Rule 11 CPC, defendant No.2 says that she has clearly averred in her written statement that she paid the entire sale consideration for purchase of the subject property from her own resources, including by encashing her Vikas Patras and receiving funds from her cousin abroad. It is submitted that documents evidencing how defendant No.2 arranged funds for purchasing the subject property have also being filed on record;

6.10. Lastly, it is contended that defendant No. 2‟s absolute ownership of the subject property is also recognised by the provisions of section 14(1) of the Hindu Succession Act 1956 („Hindu Succession Act‟), which makes a female Hindu “a full owner thereof and not as a limited owner” of any property acquired by her before or after the commencement of the Hindu Succession Act. It is argued that in view of Sale Deed dated 27.03.1992 standing exclusively in the name of defendant No.2, the plaintiffs cannot claim any right, title or interest in the subject property, which, in law vests exclusively in defendant No.2 as full owner.

7. In view of the above submissions, defendant No.2 contends that the plaint deserves to be rejected, firstly since the plaint does not disclose a cause of action; and secondly the suit appears from the statements in the plaint to be barred by law, viz. by the above-cited provisions the Limitation Act, the Benami Transactions Act as also the Hindu Succession Act.

8. In support of its case, defendant No.2 has cited the following judicial precedents:

8.1. Aparna Sharma & Ors. vs. Sidhartha Sharma & Ors.1, Pushpa Kanwar vs Urmil Wadhawan & Ors[2] on the MANU/DE/2205/2018 at paras 5, 7 MANU/DE/2993/2009 at paras 13-15 proposition that the meaning of „fiduciary capacity‟ is no longer general and expansive, and only transactions between certain relationships having fiduciary capacity as stated in section 2(9)(A)(ii) would be covered within the exception and will not be hit by the Benami Transactions Act;

8.2. Surender Kumar Khurana vs. Tilak Raj Khurana & Ors.[3] on the proposition that joint funds or joint properties are not equal in law to HUF funds or HUF properties;

8.3. J.M. Kohli vs. Madan Mohan Sahni & Ors.[4] on the proposition that though there is an implied trust in benami transactions, “however, such trusts are not the trusts which are within the purview of Section 4(3)(b) of the Benami Act”;

8.4. Narender Kante vs. Anuradha Kante & Ors.[5] on the proposition that a deed of family settlement seeking to partition joint family properties cannot be relied upon unless signed by all the co-sharers of the property;

8.5. Renu Khullar vs. Aaron[6], Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust[7] on the proposition that courts must enquire whether there is a real cause of action set-out in the plaint or if it is illusory in nature; 2016 (155) DRJ 71 at paras 5,8-9 MANU/DE/2726/2012 at paras 9-13

8.6. Mohan Lal Bhatnagar vs. Kamlesh Kumari Bhatnagar & Ors.8, Subraya M.N. vs. Vittala M.N. & Ors.9, Kale & Ors. vs. Deputy Director of Consolidation & Ors.10 Satish Kumar Batra vs. Harish Kumar Batra & Ors.11 on the proposition that family settlements that have been reduced to writing and seek to partition, extinguish or create rights in immovable property must be registered to be admissible in evidence;

8.7. Renu Khullar (supra)12 on the proposition that once the period of limitation to challenge the instrument starts running, it does not stop; and it is to be reckoned from the date of knowledge of execution of the instrument and not from the date there arose “a need to challenge” the instrument;

8.8. Union of India & Anr. vs. Ganpati Dealcom Pvt Ltd13 to explain the general scheme of the Benami Transactions Act;

8.9. Padmavati Mahajan vs. Yogender Mahajan & Anr.14 and Jaydayal Poddar (Deceased) through LRs and Anr. vs. Bibi Hazra & Ors.15 on the proposition that for a transaction to be termed as benami, the intention which should exist at the time the property was purchased has to be gauged from the surrounding circumstances, the source from which the purchase 2011 (185) DLT 394 (DB) at para 24

2018 (II) AD (Delhi) 645 at paras 13-16 2018 (170) DRJ 268 at paras 21, 22 2022 SCC OnLine SC 1064 2008 (152) DLT 363 at paras 10, 12-17, 21 money came, relationship of the parties, the nature and possession of the property, custody of the title deeds after the sale, motives governing their action in bringing about the transaction and their subsequent conduct; that the burden of proving that the property was benami is on the person asserting the claim; and the mere payment of consideration by a third person will not necessarily make the transaction benami;

8.10. Lalsa Prasad Singh vs. Chanderwala & Ors.16 on the proposition that where one party claims it to be a case of benami transaction arising from an HUF, it is necessary that the existence of the HUF is properly pleaded, especially when the person holding the property is not a member of the HUF but is a relative of such member;

8.11. Leena Mehta vs. Vijaya Myne & Ors.17 a combined reading of section 3(2) of the Benami Transactions Act and section 14 of the Hindu Succession Act would show that the law presumes that a property purchased in the name of the wife or unmarried daughter is purchased for her benefit, and that she would be the absolute owner of the property in terms of the title deed;

8.12. Nikhil Batra vs. Diwakar Batra & Ors.18 on the proposition that a bald plea that the woman, in whose name the property stands, is a housewife and therefore a benami owner on behalf MANU/DE/3113/2017 at para 6

2019 SCC OnLine Del 8253 at para 15 of the HUF, is barred by the Benami Transactions Act and does not constitute a pleading in law, especially when there are no particulars furnished alongwith such pleadings;

8.13. Savita Anand vs. Krishna Sain & Ors.19 fiduciary relationships have a legal connotation and are not equivalent to filial relationships, the former involving existence of a duty or obligation that is more than parental duties or obligations;

8.14. Hemant Satti vs. Mohan Satti & Ors.20 when the plaintiff sets-up a plea that a property is borne-out of a benami transaction, which property though standing in the name of his mother, in fact belonged to his father, he must plead and prove that the property was not acquired for the benefit of his mother; and

8.15. Anita Anand vs. Gargi Kapur & Ors.21 though a challenge to the right of a woman under section 14 of the Hindu Succession Act is entertainable if it is proved that the property was purchased only in the name of the woman and not for her benefit, those are cases of husband/wife. But since in the present case, the plaintiffs assert that the subject property was purchased in the name of the daughter-in-law, she cannot be placed in the same position as a daughter or wife. MANU/DE/1944/2020 at paras 29-30 2013 (139) DRJ 391 at paras 13-16 MANU/DE/3395/2018 at paras 23-24

9. It is accordingly urged that the present application be allowed, and the plaint be rejected. Submissions on behalf of defendant No.1

10. Appearing for defendant No. 1, Ms. Kaur, learned counsel supports the application seeking rejection of the plaint, further pointing-out that the present suit is in fact only a counter-blast to the suit bearing CS(OS) No.466/2017 filed inter-alia by defendant No. 1, whereby partition has been sought of all the properties that are jointly owned by the parties. It is submitted that in the said suit, the subject property has not been mentioned since it was never the joint-property of the parties and has always been held solely and exclusively by defendant No. 2. Ms. Kaur submits, that in that suit the present plaintiffs filed a counter-claim in relation to the subject property; which counter-claim was however dismissed as withdrawn as recorded in order dated 02.11.2017, with the court observing that a counter-claim “ … qua a non-party to the suit is not maintainable”. Moreover, it is pointed-out that even in that counter-claim, the alleged family settlement had neither been mentioned nor filed by the present plaintiffs. Counsel submits, that in fact certain claims made by the plaintiffs in the present suit are contrary to what is stated in the written statement filed by the present plaintiff No. 1 (who is defendant No. 1) in CS(OS) NO. 466/2017. Ms. Kaur also submits that though it is the plaintiffs‟ own case that construction on the subject property began in 2014, the present suit has been filed only on 10.09.2018, whereby the suit is clearly time-barred. Submissions on behalf of the plaintiffs

11. Opposing the application seeking rejection of the plaint, the plaintiffs have raised the following contentions:

11.1. The plaintiffs contend that the subject property was purchased on 27.03.1992 from the funds of the partnership firm „M/s Sujan Singh & Sons.‟ which was started by the father of the concerned parties. It is submitted that though the subject property was purchased in the name of defendant No.2, who is the wife of defendant No.1, it has been categorically averred in para 8 of the plaint that defendant No.2 held the subject property in a fiduciary capacity, for the benefit of the family/firm and that the subject property has always been treated as family property. It is the plaintiffs‟ contention that defendant No.2 had no income of her own, and that, in fact the subject property was purchased by the partnership firm paying monies to third parties, who then gave cheques in the name of defendant No.2 in lieu of the money so received, which money was used by defendant No. 2 to purchase the subject property;

11.2. It is argued that it has been specifically averred in paras 8, 12 to 15, 17 and 20 of the plaint that family properties were divided between the family members on an oral settlement arrived at between them, which settlement was then narrated in a written family settlement deed dated February 2013. It is pointed-out that the family settlement acknowledges that the subject property belongs to the family and would go to the share of defendant No.1, whereas other properties would come to the share of the plaintiffs. The allegation is that in disregard of the agreement so arrived at between the family members, defendant No.1 turned dishonest and started claiming that the subject property was owned by his wife, viz. defendant No.2. It is submitted that the averments in the plaint and the documents on record clearly show that defendant No.2 holds the subject property in a fiduciary capacity for the benefit of the other members of the family;

11.3. Furthermore, the plaintiffs contend that whether defendant No.2 comes within the purview of the exception contained in section 2(9)(A)(ii) of the Benami Transactions Act or whether the suit is barred by that statute, can only be decided after evidence is led. It is submitted, that fiduciary capacity is a well-defined concept and that it has been held by the Supreme Court that fiduciary capacity implies a relationship that is analogous to the relationship between trustees and beneficiaries; and that in fact, the concept is wider and extends to all such situations that place parties in a position founded on confidence, trust and good faith;

11.4. As regards rejection of a plaint is concerned, the plaintiffs contend that while deciding an application under Order VII Rule 11 CPC, the court must proceed only on a demurrer and see whether, accepting the averments made in a plaint, a suit is barred by law; and that disputed questions cannot be decided when considering an application under Order VII Rule 11 CPC. In the present case, it is argued, that reading the averments in the plaint as a whole it cannot be said that the suit is barred by law, whether it be the Benami Transactions Act or the Limitation Act;

11.5. Insofar as the contention that, in any case, defendant No.2 holds the subject property as absolute owner in view of section 14 of the Hindu Succession Act, it is argued that a challenge to the right of the woman under section 14 is entertainable if it is proved that though a property was purchased in her name, it was not for her benefit, which is the case here. Furthermore, it is contended that since section 67 of the Benami Transactions Act gives overriding effect to that statute and recites that the provisions of that statute shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force, and the Benami Transactions Act of 1988 being a later statute, it must prevail over the Hindu Succession Act of 1956, implying thereby that the effect of section 14 of the Hindu Succession Act stands negated;

11.6. It is also argued that the averments in the plaint make out a case that defendant No.2 falls within the exception contained in section 2(9)(A)(ii) of the Benami Transactions Act, which position has to be decided only after evidence is led and not at the stage of deciding the present application under Order VII Rule 11 CPC;

11.7. In particular, reliance is placed by the plaintiffs upon a decision of a Division Bench of this court in Neeru Dhir vs. Kamal Kishore Dhir22, submitting that vide judgment dated 01.05.2020 made in the said matter, an application under Order VII Rule 11 CPC seeking rejection of the plaint was dismissed, reversing the view taken by the learned single Judge in that case, with the Division Bench observing: “In the present case, the stage of evidence had not even been arrived at. In fact, only pleadings in the suit were completed. Issues have also not been framed. Therefore, there was no occasion for the court to determine as to whether the respondent No. 1 stood in a „fiduciary capacity‟ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/ plaintiffs”.

12. Premised on the foregoing submissions, the plaintiffs argue that the plaint cannot be rejected either on the ground that it does not disclose a cause of action, or that it is barred any law, be it the Benami Transactions Act, the Limitation Act or the Hindu Succession Act.

13. In support of their contentions, the plaintiffs have placed reliance on the following judicial precedents: MANU/DE/2444/2020

13.1. Popat and Kotecha Property vs. State Bank of India Staff Association23 on the proposition that disputed questions cannot be decided at the time of considering an application under Order VII Rule 11 CPC;

13.2. Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.24, Sri Bishwanath Banik & Anr. vs. Sulanga Bose & Ors.25, Madanuri Sri Rama Chandra Murthy vs. Syed Jalal26, Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.27 on the proposition that rejecting a plaint under Order VII Rule 11 CPC only by reading a few lines and passages and ignoring the other relevant parts of the plaint, is impermissible;

13.3. Srihari Hanumandas Totala vs. Hemant Vithal Kamat & Ors.28, Soumitra Kumar Sen vs. Shyamal Kumar Sen29, Shakti Bhog Food Industries Ltd vs. Central Bank of India & Anr.30, Saleem Bhai & Ors. vs. State of Maharashtra & Ors.31, Church of Christ Charitable Trust & Educational Charitable Society (supra)32 on the proposition that what is stated in the written statement cannot be gone into while deciding an application under Order VII Rule 11 CPC;

13.4. Marcel Martins vs. M Printer & Ors.33, Pawan Kumar vs. Babulal since deceased through LRs & Ors.34 and Neeru Dhir (supra)35 on the proposition that fiduciary capacity implies a relationship analogous to that between a trustee and a beneficiary of a trust and has wide import, extending to situations where parties are in a position founded on confidence, trust and good faith. The contention being that a disputed question of fiduciary relationship cannot be decided at the stage of deciding an application under Order VII Rule 11 CPC;

13.5. Anita Anand (supra)36 and Hemant Satti (supra)37 on the proposition that a challenge to the right of a woman under section 14 of the Hindu Succession Act is entertainable if it is proved that though a property was purchased in the name of a woman, it was not for her benefit, to submit that the question of whether the property was for the woman‟s benefit cannot be decided in an application under Order VII Rule 11 CPC;

13.6. Maruti Udyog Ltd vs. Ram Lal & Ors.38, Solidaire India Ltd vs. Fairgrowth Financial Services Ltd. & Ors.39 and Borukha Steel Ltd. vs. Fairgrowth Financial Services Ltd.40 on the

(1997) 89 CompCas 547 Bom at paras 15, 19 proposition that when both statutes containing non-obstante clause are special statutes, an endeavour should be made to give effect to both, though in the case of conflict the later statute would prevail;

13.7. Md. Hassen Hashmi vs. Kaberi Roy & Ors.41 on the proposition that the question of whether there existed a fiduciary relationship or not is to be proved at the trial; and

13.8. R. Rajagopal Reddy (Dead) by LRs and Ors vs. Padmini Chandrasekharan (Dead) by LRs.42 to argue that sections 4(1) and 4(2) of the Benami Transactions Act are not retrospective. However, this decision rendered in 1995 does not appear to be relevant since in the present case all court proceedings have arisen only after the amendment of the Benami Transactions Act in 2016. [ Discussion and Conclusions

14. Before proceeding to assess the factual contentions raised by the parties, the extant position of law in relation to the points raised may be recapitulated. In this regard, the following judicial precedents are relevant:

14.1. On section 14 of the Hindu Succession Act, in Leena Mehta (supra) a Co-ordinate Bench of this court has held as under: “9. A perusal of Section 3(2) of the Act would show that the law presumes that if the property is purchased in the name of AIR 1993 Cal 70 at paras 16, 22, 25-28 wife or unmarried daughter, the property has been purchased for benefit of the wife and unmarried daughter. It only means that if a property is purchased in the name of wife it is for her benefit and she becomes the absolute owner of the property. It does not mean that the property would still remain a benami property of the husband and every other legal heir of the husband would have a share in the property. Section 14 of the Hindu Succession Act, 1956 makes it further abundantly clear that if any property is possessed by a female Hindu whether it is acquired before or after the commencement of Act it shall be held by her as full owner and not as a limited owner unless and until the instrument by which the property has been acquired prescribes a restriction on her ownership of such property. In the present case, the conveyance deed executed by DDA was in the name of defendant no.1, there was no restriction placed in the conveyance deed about the right of ownership of defendant no.1. Defendant no.1 was absolute owner of the property in terms of the title deed in her favour. The property cannot be considered to be either of her husband or of anyone else after 31 years of execution of the title deed in her favour.”

14.2. On section 2(9)(A)(ii) of the Benami Transactions Act, in Savita Anand (supra) a Co-ordinate Bench of this court has explained the concept of „fiduciary relationship‟ in the following words:

14.3. As for the claim for cancellation of the sale deed being time-barred, in Renu Khhullar (supra) a Division Bench of this court had this to say on Article 59 of the Limitation Act:

15.2. Though the plaintiffs say that the subject property was held by defendant No.2 in a fiduciary capacity for the benefit of the members of the family or the partnership firm, and that the subject property was always treated as such, nowhere in the plaint do they aver as to when or how funds of the partnership firm were paid towards purchasing the subject property. In fact curiously, in para 8 of the plaint, the plaintiffs aver that the suit property was purchased “… By paying monies from the firm to third parties and thereafter receiving cheque in lieu thereof from third parties in the name of Defendant No.2, suit property has been purchased”. Whatever may have been the legitimacy of „routing‟ funds in this way, even on a demurrer, the plaintiffs admit that ultimately monies were paid by defendant No.2 towards purchase of the subject property in her name. The subject property accordingly stands in the sole name of defendant No.2 and is her absolute property. Also, there is no averment in the plaint that the sale deed placed any restriction saying that the subject property would not be held by defendant No. 2 as sole and absolute owner. In view of the clear mandate of the section 14 of the Hindu Succession Act therefore, as a matter of law, defendant No.2 holds the subject property as full owner and not as a limited owner, and no averment in the plaint detracts from this position;

15.3. Besides, the plaintiffs‟ own best case, as admitted inter-alia in para 8 of the plaint, is that they routed money through third parties to buy the subject property in the name of defendant No.2. This is precisely the kind of mischief that section 4 of the Benami Transactions Act seeks to prevent, and therefore bars any claim made in respect of property so held by a third party benami for the person who funds the purchase. This in fact is the very purpose and intention of the legislature in enacting the Benami Transactions Act;

15.4. Insofar as the plaintiffs‟ contention that defendant No.2 falls within the exception engrafted in section 2(9)(A)(ii) to the definition of „benami transaction‟, a bare reading of the plaint would show that there is not even a whisper of an allegation that defendant No.2 was a partner of the partnership firm, the monies of which were allegedly routed for purchasing the subject property. There is also no allegation in the plaint that defendant No.2 was a partner of that firm. At the highest, the plaintiffs contend that defendant No.2 was in a fiduciary capacity vis-à-vis them since she was the wife of defendant No.1, who (latter) is a partner of the firm. There is clearly no support for the proposition that a partner‟s wife becomes a partner, by operation of any law or otherwise. If any doubt was to remain on that count, a bare reading of section 5 of the Partnership Act answers it squarely. The provision reads as follows:

is the wife of a partner of the firm, she does not ipso-facto become a partner of the firm, inter-alia since as per section 5 of the Partnership Act, a relationship of partnership arises from contract and not from status of the parties.

15.5. Another contention raised by the plaintiffs is that, to begin with the family agreement was an oral family settlement dividing the properties amongst family members, but was subsequently reduced into writing in February 2013 by way of a settlement deed. It is further the plaintiffs‟ case, that since under the family agreement the subject property was to fall to the share of defendant No. 1, the sale deed in respect thereof was got executed in favour of respondent No. 2. The plaintiffs are however aggrieved that defendant No. 1 is now claiming the subject property to be the sole and absolute property of his wife/defendant No. 2, which is not required to form part of any family partition;

15.6. Without delving any further into whether the „settlement deed‟ amounted to a „memorandum' recording a family settlement and therefore did not require registration; or whether it amounted to a „deed‟ and was therefore compulsorily registrable, suffice it to say that there is no averment in the plaint that defendant NO. 2 was party to the oral settlement nor that she was signatory to the settlement deed. The plaintiffs‟ contention that defendant No. 2 was bound by the settlement since her husband, defendant No. 1, was party to it, especially in relation to property that stood exclusively in defendant No. 2‟s name, is to be considered only to be rejected. Here again, no cause of action is disclosed even going by the averments contained in the plaint;

15.7. In fact it is anathema in this day and age to diminish the autonomous status of a woman by treating her merely as an adjunct to her husband, least of all in relation to what the law recognises to be her absolute property;

15.8. The sale deed, of which cancellation is sought, was admittedly executed on 27.03.1992. The settlement deed, on which the plaintiffs place reliance, by their own reckoning came to be signed in February 2013. The present suit was filed on 10.09.2018 i.e., more than 21 years after Sale Deed dated 27.03.1992 was executed conveying the subject property to defendant No. 2; and some 05 years after the signing of the settlement deed comprising the family agreement. It is the plaintiffs‟ own case that the alleged oral family settlement happened even before the settlement deed was signed in February 2013. Clearly therefore, the present suit is way beyond the limitation of 03 years stipulated in Article 59 of the Schedule of the Limitation Act, with no scope for any extension or exclusion of time or condonation of delay under any of the provisions of the Limitation Act. It may further be observed that, other than a bald plea, there is no averment in the plaint nor any separate substantive application seeking to address the point of limitation, or explaining how the cause of action is claimed to be continuing in nature.

16. In the above view of the matter, this court is persuaded to hold that the plaint does not disclose any cause of action that requires trial. Furthermore, this court is of the opinion that applying the position of law as cited above, the reliefs claimed in the plaint are also clearly barred by law, as discussed above.

17. Accordingly, the application under Order VII Rule 11 CPC is allowed, thereby rejecting the plaint in suit bearing CS(OS) No. 486/2018.

18. The suit is disposed of by rejecting the plaint.

19. Pending applications if any, also stand disposed of.

ANUP JAIRAM BHAMBHANI, J JULY 06, 2023