Kalpana Balupuri Butta v. Pritendra Kumar Butta

Delhi High Court · 27 Jul 2018 · 2018:DHC:4609

Rajiv Sahai Endlaw

CS(OS) 108/2016

2018:DHC:4609

civil appeal_allowed Significant

AI Summary

The Delhi High Court held that partial contribution to property purchase does not confer ownership under the Benami Transactions Act and rejected the defendant's claim based on oral family settlement, decreeing possession in favor of the plaintiff.

Full Text

CS(OS) 108/2016
HIGH COURT OF DELHI
Date of Decision: 27th July, 2018

CS(OS) 108/2016, CC No.69/2016 & OA No.58/2018
KALPANA BALUPURI BUTTA ..... Plaintiff
Through: Mr. Dinesh Kumar Sabharwal, Ms. Heena Ahluwalia, Mr. Sameer Bhatnagar, Ms. Pooja Chauhan, Advocates

VERSUS

PRITENDRA KUMAR BUTTA ..... Defendant
Through: Mr. Sanjeev Anand, Mr.Yakesh Anand, Ms. Sonam Anand, Mr. Nimit Mathur, Mr.Varun K. Bala, Advocates

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CS(OS) 108/2016 AND CC No.69/2016

JUDGMENT

1. The plaintiff instituted this suit for recovery of possession of basement and ground floor of property No. C-425, Defence Colony, New Delhi, pleading:

(i) that the defendant is the brother of the husband of the plaintiff;

(ii) that the property No. C-425, Defence Colony, New Delhi was purchased by the husband of the plaintiff vide registered Sale Deed dated 1st January, 1983 from one Shri V.K. Mehta, the earlier owner of the said property and the leasehold rights in the land underneath the property were mutated in the records of the Land and Development Office (L&DO) from the name of the said V.K. Mehta to the name of the husband of the plaintiff;

(iii) that the husband of the plaintiff, vide registered Gift Deed dated

(iv) that since the plaintiff and her husband have been residing at

Germany, the defendant, being a close relative, was allowed to reside in the property with a view to look after the father-in-law and mother-in-law of the plaintiff and who were also the parents of the defendant;

(v) that the plaintiff also executed a special power of attorney in favour of the defendant, for having executed the conveyance deed of freehold rights in land underneath the property from the L&DO in favour of the plaintiff and the defendant, acting as the attorney of the plaintiff, got the said conveyance deed registered on 20th January, 2011;

(vi) that the father-in-law of the plaintiff expired in the year 2002 and the mother-in-law of the plaintiff expired in the year 2012;

(vii) however, inspite of demise of the parents, the defendant has continued to reside in the property, despite repeated requests and reminders of the plaintiff to vacate the same.

2. The suit was entertained and the defendant contested the same by filing a written statement and also made a Counter Claim inter alia pleading that:

(i) the parents of the defendant along with their children including the defendant and the husband of the plaintiff used to reside in the family house at 6/2, Rajender Nagar, New Delhi;

(ii) as the house at Rajender Nagar in which the entire family used to live, was a small accommodation, the parents of the defendant and who were the parents-in-law of the plaintiff, decided to sell the Rajender Nagar house and buy a new plot by using the savings and build a bigger house;

(iii) the plot of land No. C-425, Defence Colony, New Delhi was identified in the year 1982;

(iv) as the parents of the defendant immediately did not have sufficient funds to purchase the new plot, they asked their three sons including the husband of the plaintiff and the defendant to contribute;

(v) the husband of the plaintiff, who was in Germany, transferred some funds for the said purpose and the defendant also gave some funds to the father; however, the third son did not contribute any funds;

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(vi) Finally, the plot of land bearing No.C-425, Defence Colony, New

Delhi was purchased in the year 1983, with majority of the funds of the parents of the defendant; para 13 of the written statement in this regard is as under:

“13. That even though most of the funds for the purchase of the plot of the suit property were given by the parties’ parents, the sale deed of the suit property was executed in the name of their middle son Mr. N.K. Butta, the husband of the plaintiff, for certain internal family reasons and the mutation was done in his name in the L&DO records. Mr. N.K. Butta had however contributed only a small amount towards the purchase of the suit property and did not make any contribution towards the construction of the house / super structure. The original sale deed and all other original documents pertaining to the suit property were with Mr. A.C. Butta and were never in the possession of Mr. N.K.

Butta. Mr. N.K. Butta was always aware that suit property was owned by his parents and he is not the owner thereof. Much before the purchase of the suit property, Mr. N.K. Butta had left India and never returned. He was living and working in Germany since the year 1968 and had also obtained German citizenship.”

(vii) since of the three sons of the parents, only the defendant was in

Delhi, the defendant did all the running around for sale of the Rajender Nagar house and for purchase of the plot aforesaid and for raising construction thereon;

(viii) towards the funds for construction of the said property at Defence

Colony, only the defendant made contributions and neither of the other two sons of the parents of the defendant made any contribution;

(ix) on completion of construction of a double-storey structure along with basement, the defendant occupied the ground floor thereof;

(x) the defendant only has been maintaining the entire property since

(xi) all the title documents of the property were also with the parents of the defendant and were entrusted by the parents to the defendant for safe custody;

(xii) though the sale deed of the plot of land underneath the property was in the name of the husband of the plaintiff, but he was never the owner of the plot or of the superstructure constructed thereon and the entire property belonged to the father of the defendant, who was the father-in-law of the plaintiff;

(xiii) at the instance of the father of the defendant, the defendant and the husband of the plaintiff also started a joint family business but which was shut down in the year 1996;

(xiv) during the lifetime of the parents of the defendant, a mutual family settlement and agreement to partition and divide the assets took place in the year 1996 and under this oral family settlement, the suit property was partitioned between the defendant and the husband of the plaintiff by metes and bounds and in which partition, the ground floor and the basement along with garage and the rooms above the garage were allotted to the defendant and the first floor and the barsati on the second floor fell to the share of the husband of the plaintiff and it was further agreed that the parents will continue to live on the first floor for the remainder of their life and only after the parents, the husband of the plaintiff will have absolute ownership of the said first floor.

3. Though the written statement is verbose and carries a number of other averments, but the same are not relevant for the purposes of this judgment. I may however record that the counsel for the defendant, on being asked as to on which paragraphs he relies upon, has referred to paras 11 to 13, 16, 18 to 20 and 23 to 43.

4. On the aforesaid pleas, counter claim for (a) declaration (i) that the property stood divided as aforesaid; (ii) of ownership of the defendant of the basement and ground floor as aforesaid; (iii) of the gift deed executed by the husband of the plaintiff in favour of the plaintiff as null, void, non-est and unenforceable; (iv) of the conveyance deed of freehold rights in land underneath the property by the L&DO in favour of the plaintiff as null, void, non-est and unenforceable; (v) of the mutation by the L&DO in the name of the plaintiff as null and void; and (b) of permanent injunction restraining the plaintiff from dealing with the property, has been made.

5. Chamber Appeal being OA No.58/2018 preferred by the plaintiff against the order dated 9th May, 2018 of the Joint Registrar of dismissal of IA No.12377/2017 for filing additional documents came up before this Court on 28th May, 2018, when the following order was passed:

“1. The plaintiff has preferred this Chamber Appeal against the order dated 9th May, 2018 of the Joint Registrar dismissing IA No.12377/2017 of the plaintiff for filing additional documents. 2. The counsel for the defendant appears on advance notice. 3. Having gone through the file, it is felt that though issues have been framed in this suit and counter-claim but the defence taken by the defendant and the counter-claim made by the defendant, as per the averments therein, is barred by the Prohibition of Benami Property Transactions Act, 1988. Once the defendant on the pleas taken in the written statement and the counter-claim have no chance of success, notwithstanding framing of issues, the Court is not to waste its time on the suit and counter-claim. 4. The plaintiff, on the basis of title, has sued for recovery of possession of basement and ground floor of an immoveable property from the defendant.

5. The defendant is contesting the suit and has made a counter-claim pleading (i) that the property was purchased from monies largely belonging to the father of the defendant and who was the fatherin-law of the plaintiff; (ii) that the purchase was however made in the name of husband of the plaintiff who has executed a gift deed in favour of the plaintiff; (iii) that after the death of the father of the defendant and the father-in-law of the plaintiff, there was an oral partition between the defendant and the husband of the plaintiff whereunder the basement and ground floor of the property came to the exclusive share of the defendant and the upper floors of the property to the exclusive share of the husband of the plaintiff; (iv) that the husband of the plaintiff had no right to execute gift deed of the entire property in favour of the plaintiff; and, (v) that the oral partition has also been acted upon by segregating the basement and ground floor from the upper floors of the property.

6. The aforesaid defence and the counter-claim, in my opinion, is strictly in the teeth of the Benami law and no case for invoking the limited exemptions prescribed thereunder has been pleaded.

7. It thus appears that a decree for recovery of possession of immoveable property can immediately be passed in favour of the plaintiff and against the defendant.

8. The counsel for the defendant having drafted the written statement and the counter-claim though should have been prepared to address on the maintainability / tenability of defence / counterclaim seeks adjournment.

9. It is often found that such adjournments, once granted derail the stage to which the suit is at and are also often misused to take further adjournments or to start filing applications, including for amendment of pleadings.

10. The counsel for the defendant states that she will not do any such things but only seeks time to prepare.

11. The counsel for the defendant to, on the next date of hearing, also come ready to address on the aspect that even if a case for leading evidence is made out, in view of the defendant admittedly having also acted as the attorney of the plaintiff for the purposes of having leasehold rights in the land underneath the property converted into freehold, why should be the defendant, as a condition for contesting the suit, be not directed to deposit in this Court mesne profits at the prevalent market rate which the defendant may be found liable for, in the event of the suit being decreed against defendant. Though the claim for mesne profits has not been made in the suit but as per R.S. Madanappa Vs. Chandramma AIR 1965 SC 1812 and Bhagwati Prasad Vs. Chandramaul AIR 1966 SC 735, in a suit for possession, mesne profits can always be awarded.

12. The parties to, on the next date of hearing, also come prepared to make bids with respect to the mesne profits for the basement and ground floor of the property as per the prevalent market rate and if the bid of the plaintiff is higher, subject to the plaintiff depositing the said amount month by month in the Court, to accrue to the benefit of whosoever may be ultimately found entitled thereto, the defendant either deposit at the said rate or be liable to vacate during the pendency of the suit and subject to the final outcome in the suit.

13. List on 25th July, 2018.”

6. I may, at this stage, record the issues framed in the Suit on 14th November, 2017 as under: “(i) Whether the plaintiff is the sole owner of the suit property bearing No.425, Defence Colony, New Delhi – 110024? OPP

(ii) Whether the plaintiff is entitled to a decree of possession of the ground floor, basement and other areas of the suit property under the occupation and possession of the defendant? OPP

(iii) Whether the present suit filed by the plaintiff is liable to be rejected under Order VII Rule 11(a) CPC? OPD

(iv) Whether the suit property has been divided and partitioned by metes and bounds between the husband of the plaintiff and the defendant herein under a mutual family settlement/ arrangement? OPD

(v) Whether the defendant is the owner of the ground floor, basement, garage and three rooms above the garage and major part of the driveway of the suit property, under his use, occupation and possession? OPD

(vi) Whether the plaintiff and the defendant are joint owners of the suit property? If so, its effect? OPD

(vii) Whether the alleged Gift Deed dated

13.11.2009 with respect to the suit property executed by the husband of the plaintiff in favour of the plaintiff is null and void, nonest and unenforceable? OPD

(viii) Whether the Conveyance Deed dated

14.12.2010 with respect to the suit property issued by the Land & Development Officer in favour of the plaintiff is null and void, nonest and unenforceable? OPD

(ix) Whether the mutation dated 05/06.10.2010 with respect to the suit property issued by the Land & Development Officer in favour of the plaintiff is null and void, nonest and unenforceable? OPD

(x) Relief.”

7. The counsel for the defendant, in answer to the query contained in the order dated 28th May, 2018, has argued that the defence and counter claim of the defendant is not barred by the Benami Transactions (Prohibition) Act, 1988 because the claim of the defendant is not of having paid the entire sale consideration for purchase of the property but of having contributed to the sale consideration. It is argued that the definition of ‘benami transaction’ in Section 2(a) of the Benami Transactions (Prohibition) Act, 1988, as under, mentions the word ‘consideration paid’ and which has to mean the entire consideration and not part of the consideration: “(a) benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person;”

8. On enquiry, whether the Benami Transactions (Prohibition) Act, 1988 would apply or the Benami Transactions (Prohibition) Amendment Act, 2016 would apply, it is contended that since the suit as well as the written statement and counter claim were filed prior to the amendment of the Benami Transactions (Prohibition) Act, 1988 by the Benami Transactions (Prohibition) Amendment Act, 2016, the Benami Transactions (Prohibition) Act, 1988 would apply. However, on enquiry as to the basis for contending so, the counsel for the defendant states that he has not studied the matter from this aspect. On further enquiry, whether any material difference has been made to the definition of ‘benami transaction’ by way of the amendment aforesaid, attention is drawn to Section 2(9)(A) to contend that what was earlier contained in Section 2(a) and in Section 4 has now been amalgamated thereunder.

9. In my opinion, there is nothing in Section 2(a) of the Act as it existed prior to the amendment or in Section 2(9)(A)(a) of the Act as it now exists after the amendment, to suggest that only if the entire consideration has been provided, will the transaction be benami and not if part of the consideration is provided. The provisions aforesaid use the word ‘consideration’ and do not qualify the said word by ‘entire’ or ‘part’. Otherwise also, it defies logic that when the claim is of payment of part consideration and part ownership in lieu thereof, benami would not apply, but if the claim is of payment of entire consideration and of exclusive title, the prohibition would apply. I have, in Satish Kumar Gupta Vs. Shanti Swaroop Gupta 2018 SCC OnLine Del 9651 and K.L. Garg Vs. Rajesh Garg 2013 SCC OnLine Del 323 also held that the only claim of a contributor to the purchase consideration of a property, can be for recovery of such purchase consideration and contribution to purchase consideration does not create any title or interest in the property in favour of person so contributing.

10. The counsel for the defendant however contends that the point is no longer res integra and refers to Marcel Martins vs. M. Printer & Ors. (2012) 5 SCC 342 and has drawn attention to paragraphs 7, 9, 10, 13, 18 to 20 and 27 thereof.

11. Though the counsel for the defendant also wants me to refer to the dicta of the High Court of Karnataka in Smt. M. Printer & Ors. Vs. Marcel Martins AIR 2002 Karnataka 191 against which Supreme Court was approached in the aforesaid judgment, but once the Supreme Court has adjudicated on the matter, need to refer to the dicta which was in appeal is not felt.

12. A perusal of Marcel Martins (supra) shows that the same also, rather than on the aspect of entire sale consideration or part sale consideration, is on Section 4(3) of the Act as it existed prior to the amendment of the year 2016. It is deemed appropriate to set out hereinbelow Section 4, as it existed prior to the amendment, in entirety. The same is as under:

“4. Prohibition of the right to recover property held benami. – (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 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. (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.”

13. Supreme Court, in Marcel Martins (supra) was concerned with the tenancy rights held by one Stella Martins, the mother of the parties to the lis before the Supreme Court. It was found, that though on demise of Stella Martins, all her children were entitled to succeed to the tenancy rights held by her, but the lessor desired that the tenancy rights be transferred in the name of one individual rather than several individuals who had succeeded to the tenancy rights. The said position was not disputed by Marcel Martins in whose exclusive name the tenancy rights were so transferred by the lessor. It was in these circumstances that it was held that the transfer of tenancy rights in the exclusive name of the appellant was not because her other siblings had abandoned their rights but because the lessor required the tenancy rights to be transferred in favour of an individual to avoid procedural complications in enforcing its rights qua the property. It was thus held that Marcel Martins was holding the tenancy rights in a fiduciary capacity, as a trustee, and for the benefit of her other siblings on whom also, on demise of the mother, the tenancy rights had devolved and the claim of the other siblings for a share in the tenancy rights was not barred by the prohibition contained in Section 4 aforesaid.

14. The counsel for the defendant admits, that it is not even the plea in the written statement, that the property was held by the husband of the plaintiff as a trustee or qua whom he was standing in such capacity. The counsel for the defendant however states that “that is his case” though the said words may not have been used.

15. I have, for this reason only, reproduced paragraph 13 of the written statement hereinabove wherein the defendant has pleaded that the sale deed of the property was executed in the name of the husband of the plaintiff “for certain internal family reasons”. The same is antithetical to the argument now being raised, when faced with the bar of benami.

16. Though this is not the stage for returning factual findings but it is also not disputed that the defendant, acting as the attorney of the plaintiff, got the conveyance deed of freehold rights in land registered from the L&DO in favour of the plaintiff on 20th January, 2011. The defendant thus was aware of the gift by the husband of the plaintiff in favour of the plaintiff, if not earlier to 20th January, 2011, at least on 20th January, 2011. The counter claim for declaration with respect to the gift deed has been instituted only on 8th July, 2016. The relief of declaration is governed by Part III and Part IV of the Schedule to the Limitation Act and Articles 58 and 59 whereunder provide the limitation of three years commencing, either from the date when the right to sue first accrues or from the date when facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded, first become known to the person seeking such cancellation. The Counter Claim, for this reason also appears to be barred by time.

17. Not only so, it is inexplicable, that if the husband of the plaintiff was not the exclusive owner of the property and was holding the same in trust, also for the defendant, why would the defendant consent and participate in having the conveyance deed of freehold rights in land underneath the property transferred in the name of the plaintiff. In this regard, attention is invited to paragraphs 37 to 43 of the preliminary objections in the written statement as under where it is pleaded that in the year 2008-09, the husband of the plaintiff was involved in certain legal proceedings in Germany and there was high possibility that his assets including in India would be attached and for the said reason, the property was got transferred in the name of the plaintiff:

“37. In the year 2008-2009, Mr. N.K. Butta got involved in certain legal proceedings in Germany. His business partner had filed a case of embezzlement against him. There was a very high possibility that all his assets and properties would get attached and sold. Therefore, Mr. N.K. Butta wanted to declare himself a bankrupt and save his assets. He wanted to find a way to save the suit property from attachment. For this purpose he came to Delhi and met the defendant to discuss ways of saving the suit property. During the discussions it was discovered and realized that the entire suit property was still leasehold and stood in the name of Mr. N.K. Butta and first the shares

were to be mutated separately. However, for carrying out the mutation it would first have to be converted from leasehold to freehold. Further, even to sell the property as it is, prior permission of the L&DO would be required. The defendant and Mr. N.K. Butta went and made inquiries for conversion of the property to freehold and found that the entire process was going to take a long time. But there was immediate pressure on Mr. N.K. Butta to transfer the suit property from his name to another name duly supported by documents. The threat of attachment of the suit property by the German Courts was always on his mind and there was a great possibility of losing the entire property.

38. Looking at the desperate condition of his brother and also to save his own share in the suit property, the defendant suggested taking some legal help and advice in the matter and took Mr. N.K. Butta to meet a lawyer in Defence Colony who was known to both the brothers. The said lawyer advised that since the process of conversion from leasehold to freehold is very time consuming, the entire suit property should be transferred in the name of some other member of the Butta family. He suggested that this could be done immediately without conversion from leasehold to freehold and this way the property will also remain within the Butta family.

39. Mr. N.K. Butta then wanted to transfer the entire suit property in the name of the defendant in all official records and the concerned authorities like L&DO and MCD. However, since the defendant was only the owner of half portion of the property, he did not feel comfortable having the entire suit property transferred in his name and declined this suggestion to his brother. Mr. N.K. Butta then proposed to transfer the entire suit property in the name of his wife, the plaintiff herein. However, the suggestion of transferring the entire suit property in the name of the plaintiff, wife of Mr. N.K. Butta, was not found agreeable to the defendant or his family members and especially not to the mother of Mr. N.K. Butta and the defendant, Mrs. Lakshmi Butta, who was still alive and residing on the first floor. Smt. Lakshmi Butta was completely against transferring the property in favour of the plaintiff. This was mostly for the reason that Smt. Lakshmi Butta and the plaintiff herein did not have very cordial relationship from the beginning and Smt. Lakshmi Butta did not trust the intentions of the plaintiff.

40. However, Mr. N.K. Butta was in a very desperate situation and pleaded with the defendant to permit him to transfer the property in the name of his wife. Mr. N.K. Butta gave an undertaking and assurance to the defendant that the property will be transferred in the name of the plaintiff only for the limited purpose to show the German courts that he is not the owner and that they will never adversely use the said document of transfer for any collateral purpose against the defendant in any manner which will prejudice the rights, title and interest of the defendant. Mr. N.K. discussed all this again with the defendant and his family and with Smt. Lakshmi Butta and assured all of them that there is no likelihood of the alleged transfer deed / gift deed being misused against the defendant. Mr. N.K. Butta and the plaintiff further assured the defendant that as soon as the legal problems of Mr. N.K. Butta in Germany were over, they will proceed for conversion of the property to freehold and get separate mutations effected in the municipal records of different shares and portions of the N.K. Butta and the defendant in the suit property.

41. After being persuaded for a long time and despite major disagreement and opposition from his wife, children and mother, Smt. Lakshmi Butta, the defendant agreed to permit Mr. N.K. Butta to transfer the property in the name of his wife, the plaintiff herein. The defendant agreed and gave his consent to do this as it was only being done in good faith to save Mr. N.K. Butta from his legal problems and to protect the suit property. The defendant agreed to this out of natural love and affection and having full faith in the intentions of Mr. N.K. Butta and the plaintiff and especially looking at their desperate situation.

42. After the defendant gave his consent, Mr. N.K. Butta proposed that he will transfer the property in favour of the plaintiff by way of a registered gift deed. He assured the defendant and his family that the only purpose of executing a gift deed was to show the German Courts that he is not the owner of the property anymore and the gift deed would never actually to be acted upon or be enforced in any manner. However, before any document was executed, the defendant had clearly informed Mr. N.K. Butta and the plaintiff that no original documents will be given to them and all the original papers will be kept by the defendant. It was also decided that the simultaneously process for conversion of the suit property from lease hold to free hold will be started. Both Mr. N.K. Butta and the plaintiff agreed to the conditions of the defendant.

43. With the aforementioned understanding between the parties, a gift deed dated 13.11.2009 was executed in favour of the plaintiff by Mr. N.K. Butta. The same was registered with the concerned Sub-Registrar office in New Delhi. The entire work of executing and registering the gift deed was done solely by the defendant. The said gift deed was executed also in the presence of the defendant and he only arranged for the two witnesses on the gift deed. Mr. N.K. Butta and the plaintiff do not even know the said witnesses. That after the execution and registration, the original gift deed dated 13.11.2009 was kept by the defendant herein and only a photo copy was given to Mr. N.K. Butta and the plaintiff to use in the legal proceedings at Germany. The original gift deed dated 13.11.2009 is still in the possession of the defendant. This was also a solace and confirmation to the defendant and his wife, children and mother, Smt. Lakshmi Butta, that the plaintiff herein has no intention of using the said gift deed for any purpose in India and that the defendant’s ownership title and interest on the ground floor and basement of the suit property, was secured and not challengeable.”

18. Though again, this is not the stage for returning factual findings, but the improbability of what is pleaded is writ large. If the defendant was also the owner of the property, the defendant could have at that stage only got the property transferred to his name.

19. I may however clarify that the aforesaid observations are not intended to return any factual finding without recording evidence and only to take care of all the arguments urged.

20. Suffice it is to state that the counter claim, to the extent is premised on the husband of the plaintiff being benami owner of the property, is liable to be rejected as barred by the Benami Law and there is no need to put the said defence of the defendant to trial, inasmuch as once the defence pleaded is barred by law, no amount of evidence can cure the said bar.

21. That brings me to the plea of the defendant/counter claimant, of “mutual family settlement and agreement to partition and divide the assets”. The same is pleaded to be oral and not recorded in any document and nothing is pleaded from which an inference of the same having been acted upon, can be drawn.

22. The question which arises, is whether the said plea is such which requires any evidence to be led.

23. The said plea is however premised on the husband of the plaintiff being the benami owner of the property and the father of the defendant/ counter claimant and the father-in-law of the plaintiff being the real owner of the property and/or on the defendant/ counter claimant also having a share in the property by reason of having contributed towards purchase of land underneath the same and cost of construction thereof. I have already hereinabove held that the plea of benami is barred by benami law and not required to be put to trial.

24. The question which thus further arises is, when the plea of benami, on which the plea of “mutual family settlement and agreement to partition and divide” is premised, is unsustainable in law, whether there is any need to put the plea of “mutual family settlement and agreement to partition and divide” to trial.

25. For a partition to take place, both the parties amongst whom oral partition is pleaded must be the owners or must have a share in the property which is claimed to have been partitioned. Title in one, who earlier did not have any share in the property, cannot for the first time be created in the guise of partition. The same is the position with respect to a family settlement. Supreme Court, in S.K. Sattar S.K. Mohd Choudhari Vs. Gundappa Ambadas Bukate (1996) 6 SCC 373, though in the context of a challenge by a tenant to a partition claimed by the landlord to seek eviction of a tenant, after noticing Kale Vs. Deputy Director of Consolidation (1976) 3 SCC 119, held (a) a family arrangement as distinct from a transfer of property, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family disputes and litigation and for saving the honour of the family; (b) such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is; and, (c) it is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a “conveyance of property” from a person who has title to it to a person who has no title. In Kale supra, as also in earlier judgments in Tek Bahadur Bhujil Vs. Debi Singh Bhujil AIR 1966 SC 292 and Ram Charan Das Vs. Girjanandini Devi AIR 1966 SC 323, it was held that it was not necessary to show that every person taking a benefit under a family arrangement had a share in the property; it was enough if they had a possible claim or a semblance of a claim. This was explained in V.N. Sarin Vs. Major Ajit Kumar AIR 1966 SC 432 as meaning, that each coparcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family.

26. Here, the “mutual family settlement and agreement to partition and divide” alleged is with respect to one property only and in which, the pleas of the defendant/ counter claimant of antecedent title thereto, have been found to be barred by law.

27. Supreme Court, recently in Theiry Santhanamal Vs. Viswanathan (2018) 3 SCC 117 held that partition deed can be entered into between the parties who are joint owners of the property; a father, as an absolute owner of the property, could not give away portions of the property to his sons by entering into partition deed; in case the father wanted to give the property of which he was the absolute owner, to his sons, it could be done by Will or by means of a gift deed/donation etc.; however the claim of the plaintiff in that case was not on that basis; it was not stated anywhere whether the necessary formalities, conditions or rules laid down for donation inter vivos or gift, so as to enforce a document, were complied with; in the absence of pleadings, no evidence also to that effect was produced; similarly, under a Family Settlement, pre-existing rights only can be apportioned and no new rights can be created.

28. Once it has been found that the defendant/counter claimant here had no pre-existing right in the property, no right could be created in favour of the defendant/counter claimant under the “mutual family settlement and agreement to partition and divide”.

29. Thus the Counter Claim on the said basis also is not tenable and there is no need to put the same to evidence.

30. The Counter Claim No.69/2016 is thus rejected as barred by and untenable in law and a decree is passed in favour of the plaintiff and against the defendant, of recovery of possession of the entire portion in possession of the plaintiff of property No. C-425, Defence Colony, New Delhi.

31. Though the plaintiff has not claimed mesne profits as aforesaid, but as observed in the order dated 28th May, 2018, the Court is required, in a suit for recovery of possession of immovable property, to order enquiry into mesne profits.

32. In the facts, it is deemed appropriate to order that if the defendant, in compliance of the decree, vacates the property within three months of today, he will not be liable for any mesne profits. However, if the defendant, for any reason whatsoever, including of having preferred an appeal, does not comply with the decree for possession, it will be open to the plaintiff to, at that stage, seek appointment of a Commissioner for holding an enquiry into mesne profits. The counsel for the plaintiff having not raised the aforesaid plea, no costs. Decree sheet be prepared. [ RAJIV SAHAI ENDLAW, J JULY 27, 2018 pk/pp..

Kalpana Balupuri Butta v. Pritendra Kumar Butta

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