Shamik Mukherjee, J. - (1.) NO. 8243/2001
(2.) AN interesting question has arisen regarding the interplay of the provisions of the Sections 2(a), 3(a) and 4(a) of the Benami Transactions (Prohibition) Act, 1988 by which Sections 81 & 82 in Chapter IX of the Indian Trusts Act 1982, were deleted in the year 1988, while side by side with the enacting of the Benami Act. This application (I.A. No. 8243/2001) has been preferred by the plaintiff under Order 6, Rule 17 of the Code of Civil Procedure, seeking leave to amend the plaint, by incorporating inter -alia, the following prayers: - 1. plaintiff wishes to add sub -para to the existing para 3, which is as under: "plaintiff respectfully submits that Smt. Raj Rani Bhasin had purchased certain immovable properties either in her name or in others' name including the defendant No. 3. The properties purchased by her in other's names were held in trust as trustee. The same were held in fiduciary capacity and for the sole benefit of Smt. Raj Rani Bhasin. The same also devolved upon the parties here to and are liable to be partitioned. It is submitted that Smt. Raj Rani Bhasin purchased property No. 2 -R, Second Floor, DCM Building, 16 -Barakhamba Road, new Delhi, in the name of defendant No. 3. She also purchased office bearing No. 1110, Ashoka Estate, Barakhamba Road, New Delhi, in the name of defendant No. 3. She also purchased office bearing No. 1110, Ashoka Estate, Barakhamba Road, New Delhi, admeasuring 640 sq.feet in the name of defendant No. 3. It is submitted that the defendant No. 3 held the said property as trustee to Smt. Raj Rani Bhasin and for her benefit. The said property was purchased in the name of defendant No. 3 in fiduciary capacity and the same also devolved upon the parties hereto after the demise of Smt. Raj Rani Bhasin. Smt. Raj Rani Bhasin also purchased three flats on second, third and fourth floors of DCM Building, Barakhamba Road, New Delhi, a Farm House of Ansal Properties situated at Mehrauli -Gurgaon Road, and plot No. 918 -A, DLF City, Gurgaon, from the sale proceeds of the property bearing No. E -205, Greater Kailash -II, New Delhi, and the fixed deposits which devolved upon her by virtue of Will dated 25th January, 1980, executed by late Shri Rajinder Kumar Bhasin. Smt. Raj Rani Bhasin sold the property No. E -205, Greater Kailash -II, New Delhi for Rs. 50 lakhs. It is submitted that Smt. Raj Rani Bhasin also succeeded fixed deposits which were worth Rs. 10,30,000/ - in the year 1994. The same were the self -acquired funds of late Shri Rajinder Kumar Bhasin. The said fixed deposits matured in the year 1997 and were worth Rs. 14.80 lakhs. Smt. Raj Rani Bhasin, after the maturity, invested in the fixed deposits a sum of Rs. 5,50,000/ - and balance of Rs. 9,30,000/ - was utilised by her for purchase of properties. The said properties were purchased by her either in her own name or in the name of defendant No. 3, who held the said property in trust, as trustee to her. Needless to say, the said properties were purchased for her benefit and the same are also liable to be partitioned between the parties hereto. II. That the plaintiff also wishes to add the aforesaid immovable properties in para 4 at the end of list of the existing list of immovable properties. ..... ..... ..... ..... ..... ....."
(3.) THE objection of the defendant is that the averments sought to be included by amendment, are hit by the Benami Transactions (Prohibition) Act 1988, and as such cannot be allowed. Reliance is placed upon the decision of the Hon'ble Himachal High Court in the case reported as Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal Bahri : AIR 1994 HP 27 wherein it has been inter alias held as under: - "19. The next question is about the plea of Benami nature as also of the adverse possession. Sub -section (2), of Section 4 of the Act says that no defense, based on any right, in respect of any property, held Benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the rawal owner of such property. In view of the ratio of the judgment in Mithilesh Kumari's case (supra), the act has retrospective operation. What can be noticed from the defense taken by the defendant is that the plot in fact was purchased by him in the name of his brother Bal Krishan Rawal. In other words, that the plot was purchased Benami. Thus, this plea with respect to the purchase of plot being a Benami transaction being prohibited under law cannot be put to an issue. This Court in Smt. Nirmala Devi v. Shri Karam Chand Civil Revision No. 45 of 1992 decided on 1 -5 -1992 held that: ".....The plea which is sought to be raised, namely, that it was a Benami transaction in the name of the defendant is clearly prohibited by the Benami Transaction (Prohibition) Act, 1988 (Act No. 45 of 1988). May be that it is an additional approach for getting the same relief but no amendment can be allowed having the effect of allowing an additional plea to be raised which is prohibited by law. As such, it is not permissible for the plaintiff to take up such a plea which is prohibited by virtue of Section 4 of the said Act.";