Delhi District Court
Shiv Narain Sharma vs Chanda Devi Sharma on 28 January, 2025
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
RCA No. 47659/2015
CNR No. DLNE01-000865-2015
Shiv Narain Sharma
(Through legal representatives)
1(i) Kusum Lata
W/o Late Shiv Narayan Sharma
1(ii) Hari Narayan Sharma
S/o Shiv Narayan Sharma
1(iii) Ms. Laxmi
W/o Sh. Santosh Sharma
R/o E-49, A-106, Welcome Market,
Janta Majdoor Colony, Phase-3rd,,
Seelam Pur, North-West, Delhi.
1(iv) Neetu
W/o Sh. Vinod Kumar
R/o 666 D/17, Jeel Khuranja, Geeta Colony,
Gandhi Nagar, East Delhi.
1(v) Babita
W/o Sh. Kapil Sharma
R/o X-2/12, Gali No. 7, X-Block,
Braham Puri, Garhi Mendu,
North-East, Delhi.
1(vi) Chanchal Sharma
W/o Sh. Deepak Sharma
R/o C-129, Gali No. 4/5, Band Gali,
Ganga Vihar, Gokal Pur,
North-East, Delhi. ...Appellants
Versus
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
Chanda Devi
(Through legal representatives)
1(a). Sh. Vishanu Dutt Sharma
(Through legal representatives)
1(a.i) Shorabh Sharma
1(a.ii) Deepa Sharma
W/o Sh. Rinku Sharma
1(a.iii) Kavita
W/o Sh. Sheel Ji.
All residents of H.No. 15/23, Gali No. 4,
Shivaji Marg, East Babar Pur,
Shahadra, Delhi.
1 (b). Kamla
W/o Sh. Lalta Prashad Sharma
D/o Sh. Ram Sharan Sharma
R/o 5/18, Mahabir Gunj Pradhan,
Police Station Kotwali, Farrukhabad.
2. Satya Dev Sharma
Late Ram Sharan Sharma
R/o J-101/11, Gali No. 2,
IVth-Pushta, Kartar Nagar,
Delhi. ....Respondents
Date of filing of the present appeal : 15.07.2015
Date of completion of Final Arguments : 28.01.2025
Date of judgment : 28.01.2025
Final Decision : Dismissed
JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant (plaintiff,
before, the Learned Trial Court) against, the impugned judgment and
decree, dated 06.05.2015, titled as Sh. Shiv Narain Sharma vs. Smt.
Chanda Devi Sharma & Another in Civil Suit number 403/2007. The suit
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
of the appellant was dismissed by the Court of the then Learned
ACJ/ARC/CCJ (North East), Karkardooma Courts, Delhi. Thereafter, the
present appeal.
2. For the sake of convenience, parties shall be denoted as they were
before Learned Trial Court. Appellant, herein, Sh. Shiv Narain Sharma
(Through legal representatives that is (i) Kusum Lata, (ii) Hari Narayan
Sharma, (iii) Ms. Laxmi, (iv) Neetu (v) Babita and (vi) Chanchal Sharma)
as plaintiff and respondents Sh. Chanda Devi Sharma {through legal
representatives that is (i) Sh. Vishanu Dutt Sharma (through legal
representatives that is (a.i) Shorabh Sharma, (a.ii) Deepa Sharma, (a.iii)
Kavita), Kamla and Sarya Dev Sharma shall be referred to as defendants.
It is pertinent to mention here that the initially the present appeal has been
preferred by the plaintiff/appellant Sh. Shiv Narain Sharma only.
Plaint
3. The brief facts as disclosed in the plaint are that the
plaintiff/appellant is the son of defendant/respondent number 1. It is stated
that the defendant/respondent alongwith her other two sons namely, Shri
Vishnu Dutt Sharma and Shri Satya Dev Sharma (defendant/respondent
number 2) used to live at her native village Budnamau, District
Farukhabad, Uttar Pradesh. It is further stated that in the year about 1977-
78, plaintiff/appellant who used to work in Delhi, since the year 1972,
brought the defendant/respondent number 1, alongwith his two brothers. It
is further stated that at that time, brother of plaintiff/appellant, Sh. Vishnu
Dutt Sharma, was learning the work of electrician and Sh. Satya Dev
Sharma was a student. It is further stated that on 03.01.1979,
plaintiff/appellant had purchased a piece of land measuring 107 square
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
yards, out of Khasra number 142, 143 situated at Village Ghonda Gujran
Khadar, Illaqa Shahdara, Delhi (now numbered as J-101/11, Gali number
2, IVth Pushta, Kartar Nagar, Delhi) in the name of his mother that is
defendant/respondent number 1 from one Shri Ram Pal son of Shri
Harkesh. It is further stated that the defendant/respondent number 1 used
to be a housewife through out her life and she never earned any money. It
is further stated that after the purchase of the abovesaid property,
plaintiff/appellant had raised construction at different points of time and
now it is double storey building. It is further stated that seven to eight
years ago nalah nearby the house was converted by the authorities into a
pucca construction. At the time of converting of nallah, some of the land
of the aforesaid plot/premises was taken by the government hence, suit
premises is now of the size mentioned in the site plan. It is further stated
that because of the increase in price of the property in Delhi
defendant/respondent number 1 had become dishonest and she wanted to
bequeath the same in favour of defendant/respondent number 2.
It is further stated that on 05.06.2007, plaintiff/appellant had
requested his mother to execute the title documents of his share in the
abovesaid property in his favour as there was scarcity of water supply in
the house and the plaintiff/appellant wanted to get sanction another
connection in the premises. Hearing the aforesaid request,
defendant/respondent number 2, became angry and he tried to indulge in a
brawl with the plaintiff/appellant. It is further stated that as mentioned
above, the plaintiff/appellant had purchased the abovesaid property/plot
with his earnings, the construction was also raised by the
plaintiff/appellant time to time as per the necessity/requirement of family
hence, the actual owner of the aforesaid property is the plaintiff/appellant
instead of defendant/respondent number 1. It is further stated that now the
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
defendants/respondents in collusion with one another and with the
malafide intention to deprive the plaintiff/appellant from his legitimate
right tried to dispossess the plaintiff/appellant. It is further stated that the
defendants/respondents do not have any right, title or interest in the suit
premises except that they are living in the property as licensee. It is further
stated that on 11.07.2007, when, the request was again made by the
plaintiff/appellant for transfer of the title documents in his name and for
vacating the suit premises, defendant/respondent number 2 threatened to
dispose of the same in favour of any third person. It is further stated that
on 12.07.2007, in the noon time, defendant/respondent number 2, came
with one of the property dealers and showed the suit premises to him. It is
therefore, requested in the plaint, that the decree of declaration alongwith
decree of permanent injunction be passed.
Written statement
4. Defendants/respondents had contested the suit by filing their
common written statement in which apart from denying contentions raised
by the respondent/plaintiff in his plaint, it is stated that the
plaintiff/appellant neither had any right, title or interest nor he was
concerned with the property in question as the same was the self acquired
property of defendant/respondent number 1. It is further stated that for the
purchase of property, defendant/respondent number 1 had invested her past
savings from the household affairs and had also disposed some of her
jewellery in order to have a roof over the heads of the family members
somewhere, in the year 1979. It is further stated that even otherwise
present suit is barred under the provisions of section 4 of the Benami
Transaction Act, as the plaintiff, was neither the coparcener nor the co-
sharer in the suit premises and defendant/respondent number 1 had
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absolute right, title or interest. It is stated that with the passage of time as
the value of the property had increased manifolds, the intention of
plaintiff/appellant had become dishonest. It is further stated that since, the
date of purchase of property, by defendant/respondent number 1, in the
year 1979, she had been residing therein, alongwith her family members
and it is she who had raised the construction over the suit premises. It is
further stated that plaintiff/appellant kept on torturing and forcing the
defendant/respondent number 1 to execute the sale documents in respect of
suit premises in his favour. It is further stated that on 05.06.2007, when
plaintiff/appellant had crossed all the limits in harassing and humiliating
the defendant/respondent number 1, defendant/respondent number 1 was
left with no other alternative except to summon the local police who took
necessary legal action in the matter. It is further stated that the
plaintiff/appellant has no cause of action to file the present suit. It is
therefore requested that the suit of plaintiff/appellant be dismissed.
Replication
5. Despite opportunities having being granted to the plaintiff/appellant,
no replication to the written statement of defendants/respondents was filed.
Issues
6. Learned Trial Court vide order dated 14.03.2011 framed the
following issues to dispose of the suit of plaintiff/appellant.
(i) Whether this suit is barred under section 4 of the Benami
Transaction Act? OPD.
(ii) Whether plaintiff is entitled for decree for declaration as
claimed?OPP
(iii) Whether plaintiff is entitled for decree of permanent
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injunction as claimed? OPP
(iv) Relief .
Evidence of plaintiff/appellant
7. Thereafter, plaintiff/appellant has led his piece of evidence.
Plaintiff/appellant Sh. Shiv Narain Sharma has got examined himself as
PW1. He reiterated the facts as are mentioned by him in his plaint.
Thereafter, he tendered his evidence by way of affidavit which is
Ex.PW1/A and relied upon the following documents that are copy of site
plan as Ex.PW1/1 and copy of General Power of Attorney, dated
03.01.1979 as Mark A. PW1 was cross examined at length by Learned
counsel for defendants/respondents. During the course of his cross
examination, PW1 submitted that in the year 1972, he used to get rupees
200/- per month as a salary.
Sh. Lalta Parshad was examined as PW2. PW2 in his examination in
chief deposed that he is son-in-law of defendant/respondent number 1 and
brother-in-law of defendant/respondent number 2. PW2 further deposed
that in the year 1972, plaintiff/appellant came to Delhi and he was an
employee in a ammonia compressor factory. After about 5-6 years,
plaintiff/appellant had brought his mother alongwith his two younger
brothers to Delhi. PW2 further deposed that the plaintiff/appellant had
purchased a piece of land measuring 107 square yard at Village Ghonda
Gujran Khadar, Illaqa Shahdara, Delhi in the name of his mother that is
defendant/respondent number 1 on which plaintiff/appellant raised
construction as per requirements and capacity. Thereafter, PW2 tendered
his evidence by way of affidavit which is Ex.PW2/1. PW2 was cross
examined at length by Learned Counsel for defendants/respondents.
During the course of his cross examination, PW2 denied the suggestions
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put to him by Learned counsel for defendants/respondents that alongwith
plaintiff/appellant, his mother and younger brother also came to Delhi.
PW2 further submitted that the sale deed was not executed in his presence.
Defendant’s/respondent’s evidence
8. After completion of plaintiff’s/appellant’s evidence,
defendant/respondent had led her piece of evidence. Defendant/respondent
1 Smt. Chanda Devi herself stepped into the witness box as DW1. In her
evidence, she reiterated the same facts as are mentioned by her in her
written statement which are not repeated herein. She tendered her evidence
by way of affidavit which is Ex.D1 and relied upon the following
documents that are General Power of Attorney, agreement to sell and
receipt, all dated 03.01.1979 as Ex.DW1/1 (colly). DW1 was cross
examined at length by Learned Counsel for plaintiff/appellant. During the
course of her cross examination, DW1 denied the suggestion put to her by
Learned counsel for plaintiff/appellant that plaintiff/appellant alone came
to Delhi for work. DW1 voluntarily submitted that plaintiff/appellant
alongwith DW1 and her sons came to Delhi together.
Defendant/respondent number 2 Sh. Satya Dev Sharma was
examined as DW2. DW2 has reiterated the same facts as are mentioned by
him in his written statement. Thereafter, he tendered his evidence by way
of affidavit which is Ex.D2 and relied upon documents that are General
Power of Attorney, agreement to sell and receipt, all dated 03.01.1979
already exhibited as Ex.DW1/1 (colly) in the testimony of DW1. DW2 was
cross examined at length by Learned counsel for plaintiff/appellant.
Finding of Learned Trial Court
9. After, hearing the final arguments, Learned Trial Court had observed
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
that Hon’ble Supreme Court in Mithlesh Kumari & Anr. v. Prem Behari
Khare, Recent Revenue Reports 1989 Vol. 1 Page 255, decided on
15.12.1988 clarified that the aspect of the benami transaction would apply
even to those transactions which were carried out before the enforcement
of the Act, if otherwise the said transaction qualifies as a benami
transaction. Learned Trial Court had further observed that though the
plaintiff/appellant had relied upon the judgment of Marcel Martins v. M.
Printer & Ors, AIR 2012 SC 1987, but, the same does not apply to the
present facts and circumstances as the property in question in the aforesaid
judgment was taken on rent by the mother of parties and the landlord
corporation decided to sell the same to the tenant that is the mother. It was
the policy of the corporation that the property was not to be sold to more
than one person. Thus, despite the proof of making the contribution by all
the legal heirs of the deceased tenant, the property was allotted in the name
of one of the legal heirs. Learned Trial Court had thus summed up after
taking into consideration all the legal considerations that the alleged
transaction at hand is benami transaction and thus is not enforceable in
accordance with law in light of section 2 (a) of the Benami Transactions
Act. Therefore, Learned Trial Court had pleased to dismiss the suit of
plaintiff/appellant.
Grounds of appeal
10. Later on, the plaintiff/appellant aggrieved by the aforementioned
decision preferred this appeal in which once again, he has reiterated the
contents of plaint. Alongwith this, it is stated that the impugned order, is
passed on erroneous premises in an arbitrary and whimsical manner based
on surmise and conjectures. It is stated that the Learned Trial Court, had
not considered the paragraph number 3 of Section 4 of the Benami
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
Transaction Act, where the property was purchased in the name of
coparcener or the persons in whose name the property was purchased was
in the fiduciary relationship with the person purchasing property 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. It is stated that undoubtedly
plaintiff/appellant was the only earning member at the time of purchase of
property and just out of respect of his mother he had purchased the
property in her name. It is further stated that at that time neither the
defendant/respondent number 2 was earning nor another son of
defendant/respondent number 1 and that they both were minors at that
time. It is further stated that had Learned Trial Court discussed/understood
the legal position of clause 3 of section 4 of Benami Transaction Act, then
it would not be inclined to pass the impugned judgment and decree. The
transaction for purchasing the suit premises in the name of mother by the
son is not a benami transaction, hence, applicability of the Act beyond
enactment of the same does not arise.
It is further stated that the Learned Trial Court had wrongly
considered the aforesaid transaction of purchasing the suit premises in the
name of mother by son as benami transaction. It is further stated that the
property was purchased in the name of mother of the parties and said
transaction was not treated by the Hon’ble Supreme Court as benami
transaction. Similarly, in the present suit, the suit premises was purchased
by the plaintiff/appellant in the name of his mother and if the Hon’ble
Court considers the same, the transaction of purchasing the suit premises
in the name of his mother is also not benami transaction. It is further stated
that present appeal is being filed by the plaintiff/appellant before this
Hon’ble Court within limitation of 30 days as the judgment was
pronounced, on 06.05.2015, and from next day summer vacation started
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
which remains upto 28.06.2015 and on 29.06.2015, plaintiff/appellant had
applied the certified copy of judgment which was provided by the Copying
Agency, on 03.07.2015. Thereafter, arrangement of court fee was made
and appeal was drafted. The same thus filed before this Hon’ble Court, on
14.07.2015, as during the course of vacation limitation for filing the civil
and criminal cases were suspended as per law. It is therefore, requested
that the judgment and decree, dated 06.05.2015, passed by the Court of the
then Learned ACJ-cum-ARC-cum-CCJ (North-East), Karkardooma
Courts, Delhi in suit bearinig number 403/2007 titled as Shri Shiv Narain
Sharma Vs. Smt. Chanda Devi Sharma and Anr. be set aside.
Reply of appeal
11. Reply to the appeal has also been filed on behalf of
defendants/respondents in which apart from denying the allegations of the
plaintiff/appellant, it is stated that that the plaintiff/appellant had
unnecessarily dragged his mother that is defendant/respondent number 1 in
this false case. It is further stated that the plaintiff/appellant wanted to grab
the house of defendant/respondent number 1. It is further stated that the
order passed by the Learned Trial Court was a reasoned order, wherein, the
Learned Trial Court, had discussed the relevant provisions of law with the
help of landmark judgment of Hon’ble Apex Court titled as Mithlesh
Kumari & Ors. v. Prem Behari Khare, therein, it is clear preposition of law
that benami property real owner is not entitled to recover benami property
under section 4. This section takes into sweep all past benami transactions
irrespective of the fact when those were created. It is further stated that
when a property is purchased in the name of female member even though
there is sufficient nucleus the presumption that said property is joint family
property does not arise. It is also stated that the plea of appellant that the
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property was benami in the name of respondent is not tenable as section 4
of the Act clearly barred any such right/defence. It is further stated that the
suit which was filed by the appellant was barred by the various provisions
of Benami Transaction Act and the appellant through concealing the
material facts was trying to get benefit of his own wrong. It is further
stated that from the plain reading of entire appeal it is crystal clear that the
appellant has failed to raise even a single ground which could be
considered at this stage. It is further stated that the suit premises was
purchased by the defendant/respondent number 1 with her own funds by
selling her ornaments and other stridhan on 03.01.1979, from Sh. Rampal.
It is further stated that the suit premises was constructed by the
defendant/respondent number 1 with her own funds. It is further stated that
the plaintiff/appellant wanted to grab the suit property from his mother
forcibly and illegally. It is further stated that the plaintiff/appellant had
failed to place on record any single ownership documents of property in
question in his favour hence, the Learned Trial Court had rightly dismissed
the suit of plaintiff/appellant. It is further stated that the Learned Trial
Court was absolutely right in considering the aforesaid transaction as
benami and that there is no infirmity in the judgment. It is therefore
requested that the appeal of appellant/plaintiff be dismissed. Learned
counsel for respondents have further relied upon the judgments titled as
Ashok Sardana v. Dropadi Devi & Ors. and Vijay Kumar & Ors. v.
Dharmpal.
Arguments
12. I have heard the arguments from both sides on the grounds of
appeals in detail and perused the impugned judgment as well as evidence
adduced by both parties including the written submissions. Learned
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
Counsel for plaintiff/appellant had relied upon the following judgments
titled as Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter College
& Ors, (1987) 2 SCC 555, Jagannathan Pillai v. Kunjithapadam Pillai &
Ors, Civil Appeal No. 1196/1973, decided on 21.04.1987 and Adesh
Kanwarjit Singh Brar v. Ms. Babli Brar & Ors., AIR 2011 Delhi 187. All
these judgments have been perused very carefully vis-a-vis to the facts of
the present case. They do not apply to the present facts and circumstances.
Written submissions on behalf of plaintiff/appellant
In the written submissions filed on behalf of plaintiff/appellant, he
has reiterated the contents of plaint, written statement and grounds of
appeal. Apart from this, it is stated that defendants/respondents had filed
written statement claiming defendant/respondent number 1 (mother of
plaintiff/appellant and defendant/respondent number 2) as owner of the
suit premises. It is stated that defendants/respondents had denied the
averments of plaintiff/appellant that defendants/respondents were not
financially sound enough to purchase the property at that time instead they
are dependent upon the plaintiff/appellant, but, they failed to file any
relevant evidence in that regard. It is further stated that the Learned Trial
Court had not considered the right legal position of clause 3 section 4 of
Benami Transaction Act properly. It is stated that the transaction for
purchasing the suit premises in the name of mother by the son is not a
benami transaction, hence, applicability of the Act beyond enactment of
the same does not arise. It is further stated that the Learned Trial Court had
not considered the law point submitted by the plaintiff/appellant properly.
It is further stated that present appeal is being filed by the
plaintiff/appellant before this Hon’ble Court within limitation period as
during the course of vacation limitation for filing the civil and criminal
cases were suspended as per law. It is further stated that in case titled as
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
Adesh Kanwarjit Singh v. M/s. Babli Brar & Ors, AIR 2011, Delhi 187,
Hon’ble High Court of Delhi had observed that the father acquiring
property in his name acts in a fiduciary capacity and suit is not barred by
section 4 of Benami Transaction Act and similarly in the present suit,
mother and son, both are in fiduciary capacity, consequently suit is not
barred by section 4 of the same Act. It is further stated that without
prejudice to the above submissions, it is an admitted fact that the
plaintiff/appellant had got constructed part of premises from his own funds
and as per section 60(b) Easement Act, he could not be dispossessed from
the same now. Learned counsel for plaintiff/appellant had apart from the
abovesaid other judgments also relied upon Marcel Martins v. M. Printer &
Ors, AIR 2012 SC 1987. Doubtless, this judgment can be well
differentiated from the present facts and circumstances as apart from other
facts in that case corporation was the landlord which wanted to give the
property to the tenant after receiving the relevant consideration amount,
the movement of consideration from father and other legal heirs was
proved. Here, despite opportunities given plaintiff/appellant has miserably
failed to lead any evidence with respect to the alleged movement of
consideration on his part qua the suit premises.
Written submissions on behalf of defendant/respondent number 2
On the other hand, in the written submissions filed on behalf of
respondent/defendant number 2, it is stated that the order/judgment passed
by the Learned Trial Court is a reasoned order wherein, the Learned Trial
Court had discussed the relevant provisions of law. The Learned Trial
Court had rightly considered the aforesaid transaction of purchasing the
suit premises as benami transaction hence, there is no infirmity in the
impugned judgment/decree, dated 06.05.2015. It is further stated that the
appeal is time barred as the judgment was pronounced, on 06.05.2015,
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while, appeal filed, on 14.07.2015. It is further stated that it is clear
preposition of law that in case of benami property real owner is not entitled
to recover as per section 4 of the relevant Act. This section takes into
sweep all past benami transactions irrespective of the fact when those were
created. It is further stated that when a property is purchased in the name
of female member even though there is sufficient nucleus the presumption
that said property is joint family does not arise-such a presumption would
be available in case of male member of the family but not female. It is
further stated that it was alleged by the plaintiff/appellant that the property
was purchased by him in the name of defendant/respondent 1 and thus the
property in question was benami in the name of defendant/respondent
numb 1 and he continued to be the real owner of same is not tenable as the
Benami Transaction Act had been made applicable with retrospective
effect. It is further stated that the section 4 of Act clearly barred any such
defence, hence, the appeal filed by the plaintiff/appellant has no substance
and is liable to be dismissed. Thereafter, Learned counsel for
defendant/respondent number 2 has filed judgments titled as Mithlesh
Kumari & Anr. v. Prem Behari Khare, Civil Appeal No. 2311/1978,
decided on 15.12.1988, Ashok Sardana v. Dropadi Devi & Ors., CS (OS)
No. 2515/1991, decided on 15.10.2012. These judgments have been
perused very carefully.
Written submissions on behalf of defendant/respondent number 3(1)
Written submissions have also been filed on behalf of
defendant/respondent number 3(1) in which apart from negating the
contentions of appeal, it is stated that the present appeal is without merit
and is only an abuse of the process of law. It is stated that the
plaintiff/appellant had concealed the material facts regarding the suit
premises and wants to grab the whole property by his own wrongs. It is
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further stated that the impugned judgment and decree passed by the
Learned Trial Court has no infirmity. It is further stated that the suit
premises was purchased by Late Chanda Devi Sharma with her own funds
as well as the maximum help of the funds provided by her both elder sons,
namely, Late Shiv Narain Sharma and Late Vishnu Dutt Sharma. It is
further stated that the plaintiff/appellant and his brother Late Vishnu Dutt
Sharma, employed in Delhi since 1972 and Late Chanda Devi Sharma was
residing with her younger son Satya Dev Sharma (who was student at that
time) at their native place village in Uttar Pradesh. It is further stated that
the suit premises was constructed in the year 1980 with the joint funds of
Late Chanda Devi Sharma, Late Shiv Narain Sharma and Late Vishnu Dutt
Sharma.
13. Analysis and Findings:- To start with, following point of
determination was framed:-(i) Whether the impugned judgment/decree,
dated 06.05.2015, passed by the then Learned ACJ/ARC/CCJ (North East),
Karkardooma Courts, Delhi is not in accordance with law? Firstly, after
perusing the entire record, there seems to be no reason to consider the
present appeal not filed within the period of limitation as the delay has
been well explained by the plaintiff/appellant in his appeal as well as
during the course of oral submissions that it was unintentional, but,
because of receiving of the copy of judgment from the Copying Agency
and further vacations. Secondly, it is to be noted that it is the plaintiff who
has to establish his/her case and he/she will not automatically succeed
merely because of the failure of the defendant to establish his/her defence.
A party has to plead the case and produce/adduce sufficient evidence to
substantiate his/her submissions made in the plaint. There is an essential
distinction between burden of proof and onus of proof, burden of proof lies
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upon the person who has to prove a fact and it never shifts, but the onus of
proof shifts. Such a shifting of onus is a continuous process in the
evaluation of evidence. Also, whether a civil or a criminal case, the anvil
for testing of “proved”, “disproved” and “not proved”, as defined in
Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the
evaluation of the result drawn by the applicability of the rule, which makes
the difference. The court has to examine as to whether the person upon
whom the burden lies has been able to discharge his burden. In such a suit,
plaintiff has to create a high degree of probability so as shift the onus on
the defendants. Thereafter, the result of the suit depends upon the
evaluation of the result drawn by the applicability of the rule. In phipson
on Evidence, 13th Edn, p 44, para 4-03, it is observed that the phrase
burden of proof has three meanings, (1) the persuasive burden, the burden
of proof as a matter of law and pleading the burden of establishing a case,
whether by preponderance of evidence or beyond a reasonable doubt, (2)
The evidential burden, the burden of proof in the sense of adducing
evidence and (3) the burden of establishing the admissibility of evidence.
In Halsbury, vol. 17, p 11, it is observed that there are at least two distinct
senses in which burden of proof is used, and clarity over which sense is
relevant at any given time is essential. The legal burden is the burden of
proof which remains constant throughout a trial. The incidence of this
burden is usually clear from the pleadings, it usually being incumbent
upon the plaintiff to prove what he contends. Thus, burden of proof lies
upon the plaintiff and it is he/she who has to prove the fact and it never
shifts, while the onus shifts. Reliance is placed upon A. Raghavamma v. A.
Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v.
Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Thirdly, with respect to the Benami Transactions (Prohibition) Act,
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
1988, the relevant provisions are section 2(a), 3(2)(a) & 4 which are
reproduced herein for the convenience of the reference:-
Definitions.– In this Act, unless the context otherwise
requires,– “2(a) “Benami transaction” means any
transaction in which property is transferred to one
person for a consideration paid or provided by
another person;
“(3) Prohibition of benami transactions-
(2) Nothing in Sub-section (I) shall apply to-
(a) the purchase of property by any person in the
name of his wife or unmarried daughter and it shall
be presumed, unless the contrary is proved, that the
said property had been purchased for the benefit of
the wife or the unmarried daughter;
“4. Prohibition of the right to recover property held
benami.-
(3)(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.”
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) Xxxxxxxxxxx
(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.
Hon’ble, Supreme Court, way back in the year 1989, held/observed
in Mithilesh Kumari v. Prem Behari Khare AIR 1989 SC 1247, which was
re-affirmed, in Prabodh Chandra Ghosh v. Urmila Dassi AIR 2000 SC
2534, that in the Benami Transactions (Prohibition) Act 1988, any suit with
the claim of right inheriting in the real owner in respect of any property
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
held benami would not be enforceable after the enactment of the Act, 1988
even if such transaction had been entered into prior to the date of the
enactment of the Act. Thus, any suit to enforce the right in the property
held benami, if, pending prior to the Act, but, in case any suit brought after
the enactment of the Act will not be entertainable on account of the fact
that law has come into been prohibiting the enforcement of the right in the
benami property. The intention of the passing of the Benami Act can be
gathered from section 7 of the Act which repealed the provisions of
sections 81, 82 and 94 of the Indian Trust Act, 1882. The latter provisions
of the Trust Act once gave statutory recognition and protection to the
benami transactions by calling such transaction protected by a relationship
of trust. In J.M. Kohli vs. Madan Mohan Sahni & Anr, RFA No. 207/2012,
decided on 07.05.2012, it was specifically mentioned that the expression
fiduciary relationship and the relation of the trust now cannot be so
interpreted so as to infact negate the Benami Act, itself, because all the
benami transactions actually are in the nature of trust and created a
fiduciary relationship. Section 7 of the Benami Act specifically repeals
these certain provisions hence, the relationship of trust comprise in such
provisions necessarily would be excluded from the sweep of the
expression trust/fiduciary relationship found in section 4(3)(b) of the
Benami Act because what is excluded by section 7 of the Benami Act
cannot be included in section 4 (3)(b) of the Benami Act. Also, it is clear in
the Act that no defence based on any right in respect of the property held
benami whether against the person in whose name the property is held or
against any other person shall be allowed in any suit claim or action by or
on behalf of a person claiming to be the real owner of the such property.
Reliance is placed upon Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal
Bahri, AIR 1994 HP, Smt. Nirmala Devi v. Shri Karam Chand, Civil
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
Revision No. 45/1992, decided on 01.05.1992, Manoj Gupta v. Mrs. Manju
Rani & Ors, RSA No. 53/2011, decided on 22.03.2011, Anil Bhasin v.
Vijay Kumar Bhasin & Ors., 2003 (67) DRJ 174, decided on 20.08.2002,
Dr. Manjeet Singh Anand etc. v. Sh. Sarabjit Singh Anand & Ors., CM
Appl. No. 2518/2008, decided on 16.07.2009.
Further, section 4 (3) (b), of the Benami Act, protected the rights of
the real owner where the person in whose name the property is held is a
trustee or other person standing in the fiduciary capacity. Corpus Juris
secundum mentions the term fiduciary as something which is the idea of
trust or confidence, contemplates good faith, rather than legal obligation,
as the basis of transaction, refers to the integrity, the fidelity of the party
trusted, rather then his credit or ability, and has been held to apply to all
the persons to occupy a position peculiar confidence towards others, and to
include those informal relations which exits whenever one party trusts and
relies on another, as well as technical fiduciary relations. Section 4 (3)(b),
therefore, be interpreted in the sense that a person or trustee who is holding
a property in fiduciary capacity has either committed a fraud or got the
property in his name or is in furtherence of law holding the property in his
name, however, in the capacity of trustee or in fiduciary capacity although
the real owner is somebody else. Thus, in certain cases where there is
oblivious breach of trust in purchasing of property in the name of a person,
whereas it ought to have been purchased in the name of the principal or the
real owner. Hon’ble Supreme Court has held that such actions are covered
under section 4 (3)(b) of the Benami Transaction Act. Reliance is placed
upon C. Gangacharan v. C. Narayanan, 2000 (U) SCC 459, P.V. Sankara
Kurup v. Leelavathy Mambiar, 1994 (6) SCC 68 and CBSE v. Adiya
Bandopadhyay, 2 (2011) 8 SCC 497.
Adverting, to the facts of the present case, plaintiff/appellant has
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
specifically pleaded in the plaint and later on, deposed in his affidavit of
evidence, that he had purchased the suit premises in the name of his
mother and raised the construction thereon or in other words it can be said
that plaintiff/appellant here has contended that the property in question was
purchased by him in the name of his mother or say the property was
purchased benami. It is on the basis of this particular averment that the
plaintiff/appellant is claiming the relief of declaration in his favour qua the
property in question allegedly being the owner of the property in real
terms. A reading of the relevant paragraphs of the plaint as well as the
testimony, undoubtedly shows that the plaintiff/appellant had used the
expression of the property being purchased in the name of the mother of
the parties because of a fiduciary relationship and that she was a trustee
and at the same time, he had admitted that the ownership in the name of
mother was benami since the real ownership allegedly fell with the
plaintiff/appellant. This aspect has also been clarified by the
plaintiff/appellant in his written submissions as well as in the course of his
oral submissions, wherein, he has stated/submitted that the suit is not
barred by the Benami Act, inasmuch as suit falls within the exception
contained in section 4 (3)(b) of the Benami Act as this provision allows
exception to the benami transactions once there is fiduciary relationship or
a relationship of trust/trustee. Factual contexts in which the question arises
must be gone into before understanding any such type of relationship. It
has been held by the Hon’ble High Court of Delhi in judgment titled as Sh
Amar N Gugnani v. Naresh Kumar Gugnani Through Legal…, CS (OS)
No. 478/2004, decided on 30.07.2015 that
“16…Putting it in other words, once transactions were
in the nature of trust, and such transactions in the
nature of trust were encompassed within the meaning
of trust as comprised in Sections 81. 82 and 94 of the
Trusts Act, though such transactions were
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
transactions in trust and fiduciary in nature, such
transactions were held to be illegal after passing of
the Benami Act by repeal of these provisions of the
Trusts Act. Obviously, it cannot be otherwise held
that the transactions which fall within the meaning of
Sections 81, 82 and 94 of the Trusts Act, though these
Sections stand repealed, yet the transactions falling in
these Sections will have protection of Section 4(3)(b)
of the Benami Act. A reading of the judgment in the
case of Marcel Martins (supra) shows that on the
facts of the said case it was held that there was a
fiduciary relationship and a relationship in the nature
of trust, inasmuch as, actually all the parties were to
be the owners but for the fact that the Corporation
had desired, and which is in fact in the nature of
compulsion by the Corporation and as per its policy,
the property by the Corporation was not transferred in
the name of all the legal heirs of Smt. Stella Martins
but only in the name of one legal heir. Such
transactions compassed in the case of Marcel Martins
(supra), and which were brought about on the
direction of a third party, is different from a voluntary
transaction where a person voluntarily gives money
for property to be purchased in the name of another
person and in which case such a transaction where A
pays money for the property to be purchased in the
name of B, this by itself will necessarily be a benami
transaction under Section 2(a) of the Benami Act
which states that any transaction in which property is
transferred to one person for a consideration paid or
provided by another person, such a transaction is a
benami transaction, and such benami transactions are
subject matter of prohibition of Sections 4(1) and 4
(2) of the Benami Act…”
Finally, with respect to the invoking of the provisions of Easement
Act very first time in the appeal especially at the time of filing the written
submissions and during the course of propounding of oral submissions,
Learned Counsel for plaintiff/appellant has claimed that is the
plaintiff/appellant who had undertaken the construction over the suit
premises therefore, relevant provisions of Easement Act be applied. Here,
it needs to be pin pointed that neither in the plaint nor in the grounds of
appeal, plaintiff/appellant had explained/deciphered the alleged
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.
construction work undertaken by him. Nowhere, plaintiff/appellant has
mentioned how and exactly what type of construction/over how much
period of time was undertaken by him? Despite, having ample
opportunities, not even a single bill qua the alleged construction or any
other relevant piece of evidence substantiating the alleged construction
undertaken by the plaintiff/appellant has ever been produced/put on record
by the plaintiff/appellant. Thus, in the overall circumstances, it can be
safely summed up that the burden of proof lying upon plaintiff/appellant in
light of preponderance of probabilities/degree of probabilities has not been
discharged by him and as such there is no question of shifting of onus on
the defendants/respondents.
14. Therefore, in light of these facts and also in view of detailed
foregoing discussion, the appeal filed by the plaintiff/appellant is hereby
dismissed. The judgment passed by the Learned Trial Court suffers from
no infirmity or illegality for which the same should be set aside. Hence, the
impugned judgment and decree, dated 06.05.2015 is hereby upheld
including it’s findings.
15. TCR be sent back with the copy of this judgment.
16. Appeal file be consigned to Record Room after due compliance.
MANU Digitally signed by
MANU VEDWAN
VEDWAN Date: 2025.01.28
15:57:50 +0530
(Manu Vedwan)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Announced in the open court
today i.e. 28.01.2025
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Shiv Narain Sharma through LRs. vs. Chanda Devi through LRs & Ors.