Husband purchasing property in name of wife belongs to her-said property is not property of joint family
In the present case, on a plain reading of the plaint it is clear that the Plaintiff is setting up a plea of a benami transaction in respect of the Delhi property. His specific plea is that although the Delhi property stood in the name of mother, it in fact belonged to his father since it was his father who paid the entire sale consideration. If it is a benami transaction, then under Section 3 of the BTA it cannot be accorded any recognition unless the Plaintiff is able to bring his case under the exceptions under Section 3(2) BTA. In other words, to avoid the bar of Section 3 BTA the Plaintiff would have to plead and then prove that the suit property was in fact not acquired for the benefit of his mother.
18. Mr. Mitra repeatedly referred to para 7 of the plaint and urged that since the plea was that the mother was holding the Delhi property in trust for the joint family, the corollary was that such property was in fact was not acquired for her benefit. Even while conceding that this was not specifically pleaded, he submitted that it should be inferred from a reading of paras 1 to 6 with para 7 of the plaint.
19. This Court is unable to accept the above submission of Mr. Mitra. The plaint should be read as it is. It obviously cannot be read as statute. In other words, the Court cannot possibly read into the plaint, words that do not find a place therein. Nowhere in para 7, or for that matter in the earlier plaint, is it stated that the Delhi property was not acquired for the benefit of the mother. When there is no plea to that effect in the first place, the question of proving that the Delhi property was not acquired for the benefit of the mother, simply does not arise. It is a futile exercise to permit the Plaintiff to raise such a plea at this belated stage. Interestingly even in the application for seeking amendment to the plaint, the Plaintiff does not seek to amend para 7 of the plaint to incorporate such a plea. Consequently, the Plaintiff cannot seek to bring the case under the exception in Section 3(2) of the BTA and avoid the bar under Section 3(1) BTA against raising the plea of a benami transaction as regards the Delhi property. The Delhi property belonged absolutely to Defendant No.2 and she was free to deal with it in any way which she pleased during her lifetime.
20. Consequently, therefore, the Plaintiff cannot be granted the relief of partition in respect of the Delhi property. Such a relief would be barred under Order VII Rule 11(d) CPC.1
Delhi High Court
Hemant Satti vs Mohan Satti & Ors on 7 November, 2013
Citation;AIR 2014 Delhi 12https://www.lawweb.in/2014/01/husband-purchasing-property-in-name-of.html
