Satya Prakash & Ors v. Natho Devi (Deceased) Thr Lrs & Anr

RAJIV SAHAI ENDLAW, J. JULY 16, 2018 'pk'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th July, 2018 + RSA 77/2018 & CM No.19582/2018 (u/S 151 CPC for stay) SATYA PRAKASH & ORS ..... Appellants Through: Mr.Achal Gupta, Ms. Deepa, Advs. versus NATHO DEVI (DECEASED) THR LRS & ANR. .... Respondents Through: Ms. Neha Kapoor, Ms.Alka Sharma, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 12th February, 2018 in RCA No.117/2017 of the Court of Additional District Judge-01, Central] of dismissal of the First Appeal under Section 96 CPC preferred by the three appellants against the judgment and decree [dated 15th February, 2005 in Suit No.416/02/00 of the Court of the Civil Judge, Delhi] in a suit filed by the respondents No.1 and 2/plaintiffs against the appellants/defendants, of recovery of possession of immovable property with mesne profits from the appellants/defendants. 2. This appeal came up first for hearing on 11th May, 2018 when the counsel for the respondents/plaintiffs appeared on caveat and the hearing was adjourned to 17th May, 2018 and thereafter to today. 3. The counsel for the appellants/defendants has been heard. 4. The counsel for the appellants/defendants first contends that though the respondents/plaintiffs claim title to the immovable property under a Will of which they had taken a probate, but one of the respondents/plaintiffs in cross-examination deposed that she as well as the other respondents/ plaintiffs, were witnesses to the Will under which they claim title; however, the respondents/plaintiffs are not witnesses to the Will of which probate was granted and which means that there was another Will. 5. I have enquired from the counsel for the appellants/defendants, that once a probate of a Will under which the respondents/plaintiffs claim title is admitted to have been granted, under which law are the appellants/ defendants entitled to now contend existence of another Will, even if so deposed by the respondents/plaintiffs in cross-examination. 6. The counsel for the appellants/defendants has then not pressed the said argument any further. 7. The counsel for the appellants/defendants next argues that it is the case of the appellants/defendants that the father of the appellants/defendants had also contributed to the consideration for purchase of the subject property by the predecessor of the respondents/plaintiffs but the property was purchased only in the name of the predecessor of the respondents/ plaintiffs. 8. I have enquired from the counsel for the appellants/defendants, whether not such an argument constitutes a plea of benami and how are the appellants/defendants entitled to take such a plea or to make such an argument after the coming into force of the Benami Transactions (Prohibition) Act in the year 1988 and which has been renamed in the year 2016 as the Prohibition of Benami Property Transactions Act, 1988. 9. The counsel for the appellants/defendants contends, that the plea is not "particularly" of benami but of the appellants/defendants "also having title to the property" since their father had contributed to the purchase consideration. 10. Attention of the counsel for the appellants/defendants has been invited to K.L. Garg Vs. Rajesh Garg 2013 SCC OnLine Del 323 and recent judgment dated 5th July, 2018 in CS(OS) No.3/1992 titled Satish Kumar Gupta Vs. Shanti Swaroop Gupta holding that the entitlement of the person who has contributed to the purchase consideration is only to seek recovery of the money so advanced/lent and not to any title to the property in proportion to the purchase price contributed. Else, if on the basis of contribution to purchase price a proportionate title to the property is claimed, it would amount to a plea of benami, which is barred. 11. The counsel for the appellants/defendants has not pressed further the said aspect also and now contends that the main plank of t