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Title: Smt. Sarita Dua vs Dr. Gautam Dev Sood & Ors.

Reserved on: 14.03.23

Pronounced on: 04.07.23

+ RFA(OS) 27/2022

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

                 HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi high court held that the petition for partition is not maintainable if the cancellation of existing Gift deed is not sought.

Facts of the case

The three plaintiffs, who were sisters, filed a lawsuit against the defendant seeking to divide the property bearing N-32, Greater Kailash, New Delhi (hence referred to as the suit property).

In order to profit himself, the late Dr. Vyas Dev Sood, the parties’ father, acquired the suit property on April 27, 1965, using his own money. He did this in the name of his wife, the late Smt. Raj Kumari Sood, and a two-story home was subsequently built there. He passed away on January 31, 2001, while the parties’ mother, Smt. Raj Kumari Sood, passed away in October 2004. They both passed away intestate, leaving behind two sons and three daughters: Dr. Devashish Kumar Sood, who is being represented by his legal heirs, and the three daughters who are the plaintiffs. The parties’ disagreements led to the filing of the lawsuit for partition and rendition of accounts.

Analysis and decision of the court

The court analysed and stated that the parties have agreed that the suit property was acquired in 1965 under the mother of the plaintiff through a recorded Sale Deed. The appellant/plaintiff asserts that the plaintiff’s father paid all of the money necessary for the acquisition of the suit property out of his own pocket. Therefore, in contrast to the father who was a de jure owner, the mother was just a de facto owner of the property. now the property was benami, the de jure ownership remained with the father until his passing. Thereafter, according to the law of succession, it passed to all of the legal heirs, who have now requested the property’s division. It also held that the basic argument behind the plea of benami transaction is that the father purchased the property out off his own funds and registered it in name of the mother, While the law creates a prohibition against the right to recover property held benami, the law has culled out certain exceptions to benami transactions under Section 3(2) of the Benami Act. the mother’s name was used in the recorded Sale Deed dated 27.04.1965 to acquire the subject property. Both the mother and father have passed away, and the father never asserted ownership of the land throughout his lifetime. The appellants have now contested the Sale Deed as being in violation of the Benami Transaction Act, approximately 50 years after the Sale Deed was executed. A claim of father-owned property that is so nebulous and unsupported by any information, including any explanation of the finances that can be traced to the father, has been rightfully dismissed as unsubstantiated. Section 3(2) of the Act, no doubt creates a presumption if the property is purchased in the name of wife or daughter, but this presumption would have arisen only if there was any basis to establish that father had purchased property benami in the name of his wife. Section 4 of the Act places a complete embargo on claiming any right if the transaction is per se benami i.e. the property is purchased in the name of one while the funds are paid by another. Section 4(2) of the Benami Act prohibits any suit on the basis of such transaction; no person can assert to be the real owner of such property held benami. The Apex Court in the case of R. Rajagopal Reddy (dead) by LRs and Ors vs Radmini Chandrasekaran (dead) by LRs (1995) 2 SCC 630 clarified the retrospective application of Section 4 and observed that Section 4 shall be applicable from the date it came into effect and no claim, suit or action preferred by the real owner, to enforce any right in respect of the property held benami, would lie/be admissible in any court. A Division Bench of this Court in the case of Sanjay Roy Vs. Sandeep Soni, (Supra) followed the judgement of Ramti Devi (Supra) and observed that Section 27 of the Limitation Act, 1963 extinguishes the right in property on expiry of the period of limitation.

The appellants have cited as Manoj Arora v. Mamta Arora (Supra), in which the husband claimed to be the de jure owner of the two and launched a lawsuit against the wife seeking a declaration and an injunction homes that he had bought in the defendant, his wife’s name.

He had provided information on the source of the funds and the sums that he had used to pay for those properties. The Coordinate Bench of this Court noted that the action could not have been dismissed in accordance with Order VII Rule 11 of the CPC where there are explicit allegations in the plaint that the husband acquired the property in the name of his wife.

However, in this instance, neither the mother nor the father ever said that the father had bought the property benami (in the name of) the mother’s. In fact, the parties to the lawsuit did not claim the property was benami in the mother’s name while their parents were alive. Furthermore, neither in this lawsuit nor the prior civil litigation with case number CS (OS) 1912/2009 has any statement been requested in relation to the Sale Deed that was completed on April 27, 1965, in the mother’s name. Additionally, the plaintiffs have not revealed the origin of the cash.

The appellant in Ramti Devi v. Union of India (previous) understood that the Sale Deed had been executed and registered on January 29, 1947. When the appellant gained information that the instrument was being completed, the three-year limitation period outlined in Article 59 of the Schedule to the Limitation Act, 1963, started to run. The 1966 lawsuit was rejected by the Apex Court as being time-barred since the 1959 lawsuit had been withdrawn and replaced by the 1966 lawsuit. This case is similar to the present petition where defendants had countered the claim of appellants for partition with asserting a right in their favour on the basis of two registered Gift Deeds dated 13.03.2000 and 11.03.2002, executed in their favour by the mother. The defendants in the prior litigation had argued for their exclusive claim to the suit property on the basis of the two Git Deeds, according to the appellant’s averments in paragraph 17, which are obviously evident. Therefore, the plaintiffs had knowledge of the two Gift Deeds from at least 2009. The cause of action to dispute the aforementioned Gift Deeds emerged in 2009 when the appellants became aware of the Gift Deeds, and according to Article 59 of the Limitation Act, 1963, the cause of action may only be contested three years after the date of knowledge. Therefore, we concur with the learned Single Judge’s conclusions that the case was barred by limitation.

The defendants, respondents, claimed that the current lawsuit for partition and rendition of accounts could not be maintained without first requesting the cancellation of the two gift deeds as their second defence. In the case of Prem Singh and Ors vs Birbal and Ors. (2006) 5 SCC 353 The Supreme Court established the need for setting aside a registered document and observed thus: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.” The Coordinate Bench of this Court had stated in Anita Anand v. Gargi Kapur, (Supra), that the plaintiff would not be eligible for partition until he challenged the Gift Deed. The determination of the Gift Deed’s illegality would result in relief from division. Similar to this, the Supreme Court ruled in Ramti Devi v. Union of India (Supra) that a document that has been duly completed and registered stays valid and binds the parties unless it is properly revoked by the Court.

Thus, it has been held that the petition for partition is not maintainable if the cancellation of existing Gift deed is not sought.

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Written By – Shreyanshu Gupta

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