# Dr. Ila Gupta v. Om Prakash Gupta & Anr

- **Citation:** (2025) 9 ILRA 240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-12
- **Case number:** First Appeal No. 368 of 2013
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ila-gupta-v-om-prakash-gupta-anr-53895
- **Pages:** 21

## Headnote

Dinesh Singh, Jawahir Yadav, Rajeshwar
Yadav, Anil Kumar Pandey, Awadhesh
Kumar Malviya

Issue for Consideration
Matter pertains to whether the plaintiff -
appellant could establish that disputed house
though standing in the name of her paternal
uncle, defendant was in fact purchased by him
in a fiduciary capacity and for her benefit,
thereby exempting the transaction from bar
contained
in
Section
4(1)
of
Benami
Transactions (Prohibition) Act, 1988, or whether
said transaction was a benami transaction hit by
statutory prohibition under said Act.

Headnotes
Uttar Pradesh Awas Evam Vikas Parishad
Act, 1965 - s. 88 - Benami Transactions
(Prohibition) Act, 1988 - ss. 2(a), 3, 4 -
Specific Relief Act, 1963 - ss. 34, 41 - Code
of Civil Procedure, 1908 - s. 34 - The
plaintiff - appellant, instituted Original
Suit No. 804 of 2010 before Civil Judge
(Senior Division), Ghaziabad, seeking a
declaration of ownership, possession, and
permanent
injunction
in
respect
of
disputed house asserting that though the
property was purchased in the name of
her paternal uncle, defendant no.1, it was
actually acquired from her own earnings
and savings and that defendant held same
in a fiduciary capacity for her benefit - It
was averred that plaintiff, being employed
as a medical practitioner, had remitted
substantial
funds
for
purchase
and
construction of said property, whereas
defendant's name was used merely for
convenience due to his seniority and
familial
relationship
-
Subsequently,
defendant asserted exclusive ownership,
denied plaintiff's right, and attempted to
alienate
the
property
-
Defendants
contested the suit contending that sale
deed stood in defendant's name, plaintiff
had no locus standi or ownership interest,
and the claim was barred u/s 4(1) of
Benami Transactions (Prohibition) Act,
1988 - Trial court dismissed suit, holding
the transaction to be benami and not
protected under any fiduciary exception,
leading to instant First Appeal u/s 96
C.P.C. before High Court.

Held: It stands established that disputed house
was valued at about ₹30 lakhs, whereas
plaintiff contributed only ₹ 8.45 lakhs, which
defendant no.1 asserts was a loan taken for
purchase of disputed house - Allotment and
subsequent sale deed were executed exclusively
in favour of defendant no.1, who paid entire
consideration to defendant no.2 - Possession
was also delivered to defendant no.1 pursuant
to lease agreement dated 11.12.2006 - Evidence
establishes that plaintiff and defendant no.1
were not residing together, defendant was not
dependent on plaintiff and as a retired Central
Government pensioner, had sufficient means,
was living in his own house and though ill, was
not mentally incapacitated - No HUF existed
between them, plaintiff being married having
her own family and neither a lineal descendant
nor property of defendant would have devolved
on plaintiff upon his death - Consequently, no
fiduciary
relationship
is
proved
-
While
defendant
no.1
admitted
certain
financial
transacti

## Text

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240 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainability
of
the
petition/suit.
However, instead of framing issue of
maintainability, the learned Judge framed
one on the merits and proceeded to dismiss
the suit. In doing so, the learned Judge held
that vendor in the sale deeds had admitted
receiving
the
consideration
from
respondent, whereafter the learned Judge
said that the vendor had not been
examined. Admission by a party can
amount to proof for establishing a fact. In
this case, impugned judgement was made
ex parte against respondent. The vendor had
not been examined. Appellant, who was
petitioner/plaintiff was asserting that the
transactions
were
Benami.
In
such
circumstances, finding of admission by the
vendor (not examined) to hold against
appellant, who was urging to the contrary and
having, had produced the documents from his
custody,
in
our
view
was
erroneous
appreciation of the evidence before the Court.
Another paragraph from aforesaid official
English translation of impugned judgement is
reproduced below.

"From the perusal of the file, it is
evident that the defendant is absent, and due to
her absence, the proceedings of the suit have
been proceeded against her ex parte. The
seller of the sale deed, Shri Kishan Pal Gupta,
has admitted receiving the consideration for
the property sold, amounting to Rs. 80,000/-
from the defendant. Furthermore, the seller,
Shri Kishan Gopal Gupta, has not been
examined as witness in the instant case nor,
has
his
statement
been
recorded.
Furthermore, the plaintiff is not a witness in
the sale deed of the disputed property. In the
instant case, the plaintiff has filed affidavits
of Som Prakash as PW-02, and Mohan Babu
Agrawl as PW-03, but neither are witnesses
in the sale deed of the disputed property, nor
has any transaction for the consideration of
the property sold taken place before these
two witnesses. The present suit is civil in
nature."

6. For reasons aforesaid impugned
judgement reversed in appeal. The petition
(suit) is remanded for trial afresh. Respondent
has appeared and therefore will be entitled to
contest in the hearing on remand. We request
the Family Court to proceed with the
adjudication expeditiously, without granting
unnecessary adjournments.

7. We find in impugned judgment,
reference to suit no. 150 of 2021 filed by
appellant against respondent and pending in
the Court of Civil Judge, Firozabad. Mr.
Singh submits, the suit is for permanent
injunction filed in his client?s capacity as
tenant in the premises, to resist eviction by
respondent
wife.
This
fact
and
the
consequences in law must also be decided by
the Family Court. The Family Court has
before it, the subsequent suit filed. Provisions
in section 10 of the Code will not be
applicable because the former suit is for
protection against eviction while the latter is
for declaration of title. Appellant has
apparently put forward inconsistent claims
and whether he can prosecute for relief on
them, the Family Court will have to decide.

8. The appeal is allowed and disposed of.
----------
(2025) 9 ILRA 240
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 368 of 2013

Dr. Ila Gupta ...Appellant
Versus
Om Prakash Gupta & Anr. ...Respondents
9 All. Dr. Ila Gupta Vs. Om Prakash Gupta & Anr.
241
Counsel for the Appellant:
Rohan Gupta

Counsel for the Respondents:
Dinesh Singh, Jawahir Yadav, Rajeshwar
Yadav, Anil Kumar Pandey, Awadhesh
Kumar Malviya

Issue for Consideration
Matter pertains to whether the plaintiff -
appellant could establish that disputed house
though standing in the name of her paternal
uncle, defendant was in fact purchased by him
in a fiduciary capacity and for her benefit,
thereby exempting the transaction from bar
contained
in
Section
4(1)
of
Benami
Transactions (Prohibition) Act, 1988, or whether
said transaction was a benami transaction hit by
statutory prohibition under said Act.

Headnotes
Uttar Pradesh Awas Evam Vikas Parishad
Act, 1965 - s. 88 - Benami Transactions
(Prohibition) Act, 1988 - ss. 2(a), 3, 4 -
Specific Relief Act, 1963 - ss. 34, 41 - Code
of Civil Procedure, 1908 - s. 34 - The
plaintiff - appellant, instituted Original
Suit No. 804 of 2010 before Civil Judge
(Senior Division), Ghaziabad, seeking a
declaration of ownership, possession, and
permanent
injunction
in
respect
of
disputed house asserting that though the
property was purchased in the name of
her paternal uncle, defendant no.1, it was
actually acquired from her own earnings
and savings and that defendant held same
in a fiduciary capacity for her benefit - It
was averred that plaintiff, being employed
as a medical practitioner, had remitted
substantial
funds
for
purchase
and
construction of said property, whereas
defendant's name was used merely for
convenience due to his seniority and
familial
relationship
-
Subsequently,
defendant asserted exclusive ownership,
denied plaintiff's right, and attempted to
alienate
the
property
-
Defendants
contested the suit contending that sale
deed stood in defendant's name, plaintiff
had no locus standi or ownership interest,
and the claim was barred u/s 4(1) of
Benami Transactions (Prohibition) Act,
1988 - Trial court dismissed suit, holding
the transaction to be benami and not
protected under any fiduciary exception,
leading to instant First Appeal u/s 96
C.P.C. before High Court.

Held: It stands established that disputed house
was valued at about ₹30 lakhs, whereas
plaintiff contributed only ₹ 8.45 lakhs, which
defendant no.1 asserts was a loan taken for
purchase of disputed house - Allotment and
subsequent sale deed were executed exclusively
in favour of defendant no.1, who paid entire
consideration to defendant no.2 - Possession
was also delivered to defendant no.1 pursuant
to lease agreement dated 11.12.2006 - Evidence
establishes that plaintiff and defendant no.1
were not residing together, defendant was not
dependent on plaintiff and as a retired Central
Government pensioner, had sufficient means,
was living in his own house and though ill, was
not mentally incapacitated - No HUF existed
between them, plaintiff being married having
her own family and neither a lineal descendant
nor property of defendant would have devolved
on plaintiff upon his death - Consequently, no
fiduciary
relationship
is
proved
-
While
defendant
no.1
admitted
certain
financial
transactions existed between him and plaintiff
and his daughter had taken money from
plaintiff, which was returned subsequently, such
transactions alone do not establish a fiduciary
capacity vis-à-vis the plaintiff - Since plaintiff did
not pay entire consideration for disputed house,
she cannot be regarded as its true owner - It is
neither a case of joint purchase nor a situation
where defendant no.1 was minor or financially
incapable at the time of acquisition - Defendant
no.1 has denied any love or affection towards
plaintiff and admitted absence of mutual trust -
There is no written contract between the
parties, hence, burden lay entirely on plaintiff to
establish her ownership, which she has wholly
failed to prove - Defendant no.1 is the lawful
owner in possession of disputed house, which is
not a benami property of plaintiff - As plaintiff's
claim does not fall within exceptions u/s 4(3) of
Benami Transactions (Prohibition) Act, 1988, suit
is barred by Section 4(1) - Trial court committed
no illegality in dismissing plaintiff's claim for
possession and declaration regarding execution
of sale deed by defendant no.2 and rightly
decreed suit only to extent of ₹8,46,865/- with
242 INDIAN LAW REPORTS ALLAHABAD SERIES
6% interest per annum from date of payment to
defendant no.1 until realization - Appeal is
devoid of merit and stands dismissed. [Paras 30,
35, 36, 39] (E-13)

Case Law Cited
Pushpalata v. Vijay Kumar (Dead) through LRs
and others, 2022 SCC OnLine SC 1152;
Mangathai Ammal (Died) Through Lrs. and
others v. Rajeswari and others, (2020) 17 SCC
496; Marcel Martins v. M.Printer and others,
(2012) 5 SCC 34 - relied on

List of Acts
Uttar Pradesh Awas Evam Vikas Parishad Act,
1965; Benami Transactions (Prohibition) Act,
1988; Specific Relief Act, 1963; Code of Civil
Procedure, 1908

List of Keywords
First
Appeal
under
Section
96
C.P.C.;
Declaration,
possession
and
permanent
injunction;
Registered
sale
deed;
Benami
transaction;
ss.
4(1), 4(3)(b)
of
Benami
Transactions (Prohibition) Act, 1988; Paternal
uncle; Fiduciary capacity / fiduciary relationship;
Hindu Undivided Family; Real owner; Beneficial
ownership; Bar under the statute; Statutory
prohibition; Plaintiff's financial contribution;
Burden of proof; Onus to prove ownership;
Documentary and oral evidence; Unsustainable
in law; Ownership not established; Benami
prohibition applicable; Appeal devoid of merit;
Dismissed with costs; Decree to be prepared
accordingly; Trial court's judgment affirmed.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
368 of 2013

From the Judgment and Decree dated 06.4.2013
passed by the Additional Civil Judge (Senior
Division) Court no.4, Ghaziabad in Original Suit
No. 1485 of 2006

Appearances for Parties
Advs. for the Appellant:
Rohan Gupta

Adv. for the Respondent:
Dinesh Singh, Jawahir Yadav, Rajeshwar Yadav,
Anil Kumar Pandey, Awadhesh Kumar Malviya

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant first appeal under
section 96 C.P.C. has been preferred by the
plaintiff against judgment and decree dated
06.4.2013 passed by the Additional Civil
Judge(Senior
Division)
Court
no.4,
Ghaziabad in Original Suit No. 1485 of
2006 Dr.Ila Gupta vs. Om Prakash Gupta
and another, whereby the plaintiff 's suit for
the main relief of declaration, permanent
injunction and possession, regarding the
flat no. 2C/322, Sector 2C, Vasundhara
Scheme, Ghaziabad, has been dismissed.

Plaint case

2. The plaintiff- appellant filed a suit
in the trial court with the averments that the
defendant no.1 Omprakash Gupta was her
paternal
uncle,
she
regarded
him
immensely and had full faith in him. The
defendant no.1 contacted her in the month
of January, 2005 and informed her that the
defendant No.2 Uttar Pradesh Awas Evam
Vikas
Parishad
had
constructed
in
Vasundhara Scheme, Ghaziabad duplex
houses of high income category(HIG),
which were semi-finished, which were
available for allotment and if, she desired,
then she can apply for allotment for a house
in the above scheme. Since, she was busy
in her medical profession and was unable to
spare time to move an application for
allotment in the above scheme, as such, she
requested the defendant no.1 to move an
application for allotment of house in the
above scheme on her behalf, which was
accepted by the defendant no.1. Since she
trusted defendant no.1 immensely, she
accepted the proposal of defendant no.1
and as such, consented that defendant no.1
may make an application for allotment of
house in the above scheme on her behalf, in
his own name. It is also the case of the
9 All. Dr. Ila Gupta Vs. Om Prakash Gupta & Anr.
243
plaintiff that being her real paternal uncle,
the defendant no.1 was in a fiduciary
capacity. Thereafter, the defendant no.1, for
the
benefit
of
plaintiff,
moved
an
application number 1348 on 23.1.2009 for
allotment of HIG, semi-finished duplex
house in the above scheme, by making an
application in the office of defendant no.2,
accompanied by registration amount of ₹
85,000/- paid by draft no. 035788 dated
23.1.2005, drawn on Canara Bank, Vivek
Vihar, New Delhi. The amount of ₹
85,000/- and the commission of demand
draft of ₹ 192/- was paid from the bank
account no. 26547 of the plaintiff.

3. It is the case of the plaintiff that, the
defendant no.2 vide letter no. 1323 dated
23.2.2005 intimated defendant no.1 that, he
had been allotted the above house, having
estimated cost of ₹ 16.90 lakhs and 50% of
that cost amounting to ₹ 7.60 lakhs was to
be deposited by 30.4.2005. Thereafter, the
plaintiff got issued a demand draft no.
8077363 of ₹ 7.60 lakh dated 2.4.2005
drawn on Canara Bank, Vivek Vihar,
Delhi, in favour of defendant no.2. The
demand draft was issued from the savings
bank account no. 26547 of the plaintiff and
the commission of rupees 1,673/- was also
debited from the above bank account. The
bank draft of ₹ 7.60 lakhs was given to the
defendant no.1, who deposited it on
28.4.2005 in the Ghaziabad office of the
defendant no.2. Thereafter, on 17.11.2005
the office of the defendant no.2 informed
vide letter no. 11203, that house number
2C/322, Sector 2C, Vasundhara, Ghaziabad
had been allotted.

4. It is the case of the plaintiff that the
above house, was purchased for her benefit,
by defendant no.1, who was in a fiduciary
capacity vis-a-vis the plaintiff, the registration
amount and 50% of the cost of the house was
also borne by the plaintiff, the real owner and
beneficiary of the house was the plaintiff, the
defendant no.1 was a mere benami holder of
the above house, who had no concern with
the ownership of the house.

5. It is the case of the plaintiff that
subsequently, after the allotment of the
disputed house in favour of defendant no.1,
the intention of defendant no.1 turned
malafide and in order to have illegal gain, he
began to show that he was the owner of the
disputed
house
and
denied
plaintiff's
ownership, whereas, the plaintiff was the real
beneficiary and owner, as such, she was
entitled to get the sale deed of the disputed
house executed in her favour from defendant
no.2. It is the specific case of the plaintiff,
that the defendant no.1 had no right, title and
interest in the disputed house.

6. It has been further averred by the
plaintiff that she was not informed about the
subsequent instalments of the house to be
paid to defendant no.2, by the defendant no.1
intentionally and later on, she became aware
that without her consent and knowledge, the
defendant no.1 had deposited instalments
with defendant no.2. When the intention of
the defendant no.1 became apparent to
plaintiff, then she gave a legal notice on
15.6.2006 to the defendant no.1 and 2, which
was also under section 88 of the Uttar
Pradesh Awas Evam Vikas Parishad Act, a
copy of which was also sent to the
Commissioner and Additional Commissioner
of defendant no.2, which were served on the
defendant's on 19.6.2006.

7. The plaintiff filed the suit for the
following reliefs:-

(i) by a decree of declaration, the
plaintiff be declared the real allottee of
house no. 2C/322, Sector 2C, Vasundhara
244 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheme, Ghaziabad, allotted by defendant
no.2 and was also entitled to get the sale
deed executed and registered in her favour.

(ii) by decree of declaration it be
declared that the lease agreement dated
19.8.2006 executed by defendant no.2
regarding the disputed house, was null and
void and the possession of the disputed
house handed to defendant no.1 was also
illegal and void.

(iii) If the relief claimed above,
was granted by the court, then the
defendant no.2 be directed to register the
name of the plaintiff, as allottee of the
disputed house, in its record and after
receiving the balance consideration from
the plaintiff, the sale deed be also executed
and registered in favour of the plaintiff.

(iv) If the relief claimed in clause
1 and 2 was not granted to the plaintiff,
then the alternate relief of refund of money
of ₹ 8,46,865/-, which was paid by the
plaintiff for purchasing the disputed house,
along with interest @12% per annum w.e.f.
23.1.2005 till the date of actual refund, be
granted
to
the
plaintiff
against
the
defendant no.1.

(v) by decree of permanent
injunction granted in favour of the plaintiff
against the defendant no.1, the defendant
no.1 be restrained from selling, alienating
or transferring the possession of the
disputed house.

(vi) by decree of the court the
actual possession of the disputed house be
also given to the plaintiff from defendant
no.1

(vii) the plaintiff be also awarded
mesne profit at the rate of ₹ 10,000/- per
month of the disputed house from the
defendant no.1 during the pendency of the
suit, till it's actual possession was not
received by the plaintiff, the court fees on it
will be paid at the time of execution.

(viii) The costs of the suit be also
awarded to the plaintiff against the
defendant's.

Defendant no.1's case

8. The defendant no.1 Omprakash
Gupta filed his written statement in the trial
court in which he denied the plaint case. He
submitted that the plaintiff informed him
that the defendant no.2 is constructing HIG
semi-finished houses, which are also
reserved for retired Central government
employees and as such, he should apply for
allotment in the above scheme. The
defendant
further
submitted
that
he
believed the information provided by the
plaintiff and as such, applied for allotment
of house in the above scheme of the
defendant no.2. He further submitted that
since he retired from the post of civil
engineer in CPWD, after service of 36
years, he was well aware that the property
was expensive. He further submitted that
initially he resided alone, but after the
recent marriage of his son, the house had
insufficient accommodation, as such, he
was in need of a large house for
accommodating his family and keeping in
view the needs of his family, he had
applied for allotment of house in the
housing scheme of defendant no.2. He
further submitted that there was no
necessity of getting house allotted through
the plaintiff, because she was a 45 year old
woman. He further submitted that he has
not committed any fraud upon the plaintiff.
9 All. Dr. Ila Gupta Vs. Om Prakash Gupta & Anr.
245
The plaintiff had no requirement of the
disputed property as such, why he would
have applied for house in the name of
plaintiff. He specifically averred that since
he was in need of a large house as such, he
had applied for allotment of that house. He
further submitted that the plaintiff had
assured him of her financial support, for
acquiring the disputed house, if required by
him.

9. The defendant admitted that since
he was busy in the marriage of his son from
January 2005 to April 2005, and was
unable to pay ₹ 7.60 lakhs as such, he had
taken a short-term loan from the plaintiff of
that amount and had deposited it with
defendant no.2. He admitted that the
defendant no.2 had informed vide letter no.
11203 dated 17.11.2005 that house number
2C-322 in Vasundhara has been allotted to
him. He further averred that the plaintiff
was no need of a house because she was
having a two storeyed building no. B-4,
Chandranagar, Ghaziabad, built in an area
of 650 square yard, having a market value
of ₹ 3 crores, the first floor of which was
lying vacant. Besides this, the plaintiff was
having an HIG flat no.3, Highway
Apartment, in Ghazipur, which was in the
name of her husband Ashok Gupta. The
plaintiff wanted to usurp the disputed house
illegally. The plaintiff was not the owner of
the disputed house because it was allotted
to him and the consideration of the disputed
house was also paid by him. He further
averred that half amount of consideration
amounting to ₹ 1,354,560/- was paid by
him to the defendant no.2 and as such, a
lease agreement had been executed by
defendant no.2 in his favour on 19.8.2006,
on the basis of which he was entitled to the
possession of the disputed house. The
plaintiff was neither the allottee nor was in
possession of the disputed house as such,
the suit was barred by section 34 and 41 of
the Specific Relief Act. The plaintiff filed
the suit to harass him because he was an
old and ill person. The plaintiff had got no
cause of action to file the suit and was not
entitled to get any relief from the court.

10. The defendant no.1 filed additional
written statement in which, it was averred
that after completing all the formalities
regarding the disputed house and after
depositing half amount of consideration of
₹ 13,54,560/- with defendant no.2, after
paying stamp duty of rupees 2.71 lakhs, the
defendant no.2 had executed a lease
agreement on 19.8.2006 in his favour, on
the basis of which he had obtained the
physical possession of the disputed house
on 7.12.2006, which was prior to the filing
of the suit. It was further averred that after
paying
the
whole
consideration,
the
defendant no.2 had executed a sale deed on
31.3.2008 in his favour and in view of
these facts and circumstances, the plaintiff
was not entitled to any relief.

Written
Statement
of
defendant no.2

11. The defendant No. 2 Uttar Pradesh
Awas Evam Vikas Parishad filed its written
statement in which it was admitted that the
consideration had been deposited by
defendant no.1. It was further disclosed that
vide its letter no. 1323 dated 23.2.2005 the
defendant no.1 was informed to deposit
7.60 lakhs till 30.5.2025, which was
deposited by defendant no.1 within time.
The above amount was paid by defendant
no.1 by a demand draft no. 807363 drawn
on Canara Bank, Vivek Vihar, New Delhi.
The challan of deposit was signed by
Ashok Kumar. It was further averred that
house no. 2C-322, Vasundhara, Ghaziabad
246 INDIAN LAW REPORTS ALLAHABAD SERIES
was allotted on 17.11.2005 by it, to
defendant no.1. It was admitted that the
plaintiff had sent notice dated 15.6.2006 to it.
It was further averred that on 19.8.2006 the
defendant no.1 arrived at the office of
defendant no.2 and had got executed an
agreement of the disputed house. It was
further disclosed that as per its record,
defendant
no.1
had
applied
for
the
registration of the disputed house, which was
allotted to defendant no.1 and also on
19.8.2006 a lease agreement was executed by
defendant no.2, in favour of defendant no.1.
It was specifically averred that in the records,
the disputed house had not been allotted to
the plaintiff as such, no amount can be
deposited by the plaintiff, with it. With these
submissions, it was averred that the plaintiff
had no right to file the suit, which was liable
to be dismissed with special costs.

12. The trial court on the basis of the
pleadings of the parties, framed the
following issues, which read as under:-

(i) Whether the plaintiff was the
allottee of house number 2C/322, sector
2C, Vasundhara scheme, Ghaziabad and
was entitled to get the sale deed of this
property executed and registered in her
favour from defendant no.2?

(ii) Whether the defendant no.1
was the benami holder of disputed house?
If yes, it's effect?

(iii) Whether the suit was barred
by section 34 and 41 of the Specific Relief
Act?

(iv) Whether any cause of action
had arisen?

(v)
Whether
the
suit
was
undervalued?

(vi) Whether the court fees paid
was insufficient?

(vii) Whether the suit was barred
by section 3 and 4 of the Benami
Transactions(Prohibition) Act, 1988?

(viii) Whether the plaintiff was
entitled to get any other relief?

(ix)Whether on the basis of plaint
averments, the plaintiff was entitled to get
the possession of the disputed property?

13. During trial, the plaintiff Dr Ila
Gupta examined herself as PW-1 and
defendant
no.1
Omprakash
Gupta
examined himself as DW-1.

14. The trial court vide impugned
judgment and decree dated 6.4.2013
dismissed the plaintiff's suit.

15. The trial court while deciding issue
no.1 and 9 concluded that only a partial
amount of ₹ 7.60 lakhs and ₹ 85,000 had
been
paid
by
plaintiff
towards
consideration of the disputed house, which
was admitted by defendant no.1, the
disputed
house
was
allotted
to
the
defendant no.1 and the plaintiff had failed
to prove, that the disputed house was
allotted for her benefit. The trial court
concluded that since the lease agreement
was executed by defendant no.2 in favour
of defendant no.1 as such, the defendant
no.1 will be deemed to be the owner of the
disputed house, but the plaintiff was
entitled to receive ₹ 7.60 lakhs and 85,000/-
with
interest
from
defendant
no.1.
Accordingly, issue no.1 and 9 were
decided.

16. The trial court while disposing
issue No.2 and 7 concluded that in section
9 All. Dr. Ila Gupta Vs. Om Prakash Gupta & Anr.
247
3(2)(a)
of
the
Benami
Transactions
(Prohibition) Act 1988, only the wife and
unmarried daughter are covered within the
definition of benami transaction, the
plaintiff does not fall within that definition,
as such, in the facts of the case, section 3
and 4 of the Act were held in-applicable.
Issue No.2 and 7 were decided in the
negative.

17. The trial court concluded that the
defendant failed to prove that the suit was
barred under section 34 and 41 of the
Specific Relief Act, as such, issue no.3 was
decided against the defendants.

18. The trial court, concluded that the
plaintiff had cause of action to file the suit
because she had paid ₹ 7.60 lakh and
85,000/- towards the allotment of the
disputed house, which she was entitled to
get back. On this reasoning, the trial court
decided issue no.4 in favour of the plaintiff.
Issues no.5 and 6, regarding valuation of
the suit and sufficiency of court fees paid,
were decided by the trial court on
18.4.2009. Issue no.8 was partly decided in
favour of the plaintiff by concluding that
since she had paid an amount of ₹
8,46,865/- to the defendant no.1 regarding
the disputed house, as such she was entitled
to this amount along with pendente-lite and
future interest @ 6% per annum, in
accordance
with
section
34
C.P.C.
Regarding other reliefs, the suit was
dismissed, aggrieved against which, the
plaintiff filed the instant First Appeal under
section 96 CPC.

19. Learned counsel for the plaintiff -
appellant submitted that the defendant no.1
was in fiduciary capacity vis-a-vis the
plaintiff, being the real paternal uncle of
plaintiff, the plaintiff trusted the defendant
and acting on the advice of the defendant,
had consented to apply for the disputed
house in the name of the defendant,
because there was a 10 % quota for senior
citizens in the Vasundhara scheme, as such,
there was an understanding that the
defendant will apply for the house on
behalf of the plaintiff, the plaintiff being
the real owner, the funding for the house
will be done by the plaintiff and the
defendant will hold the house, for the
benefit of the plaintiff but, after allotment
of the house to the defendant, his intention
became malafide and thereafter, to usurp
the house illegally, the defendant began to
exert his ownership rights in the house,
which
was
illegal.
Learned
counsel
submitted that the defendant no.1 was the
benami owner of the disputed house. Since,
the defendant was in a fiduciary capacity
vis-a-vis the plaintiff, the bar of Benami
Transactions (Prohibition) Act,1988 was
not attracted in this case. Learned counsel
further submitted that the trial court erred
in dismissing the plaintiff's suit. With these
submissions, it was prayed that the instant
appeal be allowed and the suit be decreed.
In support of his submissions learned
counsel has relied upon the case law
Marcel
Martins
vs.
M.Printer
and
others(2012)5 SCC 342 and Pushpalata
vs. Vijay Kumar (Dead) through LRs and
others 2022 SCC OnLine SC 1152.

20. Per contra, learned counsel for the
defendant - respondent no.1 submitted that
the defendant was the real owner of the
disputed house because a substantial part of
the
consideration
was
paid
by
the
defendant. A loan was taken from the
plaintiff initially for making an application
before the defendant no.2, for applying the
house, which was repaid by the defendant.
Learned counsel submitted that the suit was
barred by the provisions of Benami
Transactions
(Prohibition)
Act,1988.
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned counsel further submitted that the
allotment was in favour of the defendant
and possession of the disputed house was
also with the defendant and further, the sale
deed was also executed in favour of the
defendant, as such, it cannot be said that
the defendant was the benami holder of
the disputed house. Learned counsel
further submitted that the plaintiff and
defendant never trusted each other, only
because some financial transactions
took place between them, it cannot be
presumed that the defendant was in a
fiduciary
capacity
vis-a-vis
the
plaintiff.
Learned
counsel
further
submitted
that
defendant
was
not
financially dependent on plaintiff, was
having his own income from pension
and interest and had also invested his
savings and also arranged funds from
friends, relatives and family members,
for purchasing the house. With these
submissions, it was prayed that the
instant appeal be dismissed.

21. On the basis of the arguments of
the learned counsel of the parties, the
following issues arise for determination, in
this appeal:-

(1) Whether the disputed house
was purchased by defendant no.1, for the
benefit of plaintiff ?

(2) Whether the defendant no.1
was the benami owner of the disputed
house, the real owner being the plaintiff ?

(3) Whether defendant no.1 was
in a fiduciary capacity vis-a-vis the plaintiff
?

(4)Whether the suit of the plaintiff
was barred by section 4(1) of the Benami
Transactions (Prohibition) Act, 1988 ?

22.
The
plaintiff
Dr.Ila
Gupta
examined herself as PW-1 in the trial court.
In the examination- in- chief, she proved
the pleadings of the plaint and reiterated
her plaint case. She stated that defendant
no.1, being her real paternal uncle was in a
fiduciary capacity with her. She deposed
that an amount of ₹ 7.60 lakhs and 85,000/-
were paid by her towards the consideration
of the disputed house to the defendant no.2
through
demand
draft,
for
which
rupees192/- and 1,673/-were paid towards
demand draft charges, in total, an amount
of rupees 8,46,865/- was paid by her. She
further deposed that the disputed house was
purchased for her benefit, the defendant
no.1 was only a benami owner of the
disputed house, who had got no concern
with the disputed house. She denied that
the above consideration deposited by her
with defendant no.2, was a loan provided
by her to the defendant no.1. She further
deposed that the disputed house was not
reserved for retired Central government
employees, but it was reserved, only for
serving employees. She further deposed
that the defendant no.1 was not having any
requirement of a larger house because, the
defendant no.1's son Sajal was working in a
foreign country as such, the house,
presently in which the defendant no.1 was
residing,
was
sufficient
for
his
requirements because the defendant no.1
had let out a room of that house, which
proved that the defendant no.1 was not
having any requirement of a larger house.
She further deposed that house no. B4,Chandra Nagar belonged to her father-inlaw K.L. Gupta.

23. The plaintiff in her crossexamination admitted that she's the joint
owner of a shop with her husband, situated
in Palika Bazar, GT road, Ghaziabad,
which was purchased in the year 1986 or
9 All. Dr. Ila Gupta Vs. Om Prakash Gupta & Anr.
249
1987, from her own funds. She admitted
that when the registration form of the
disputed house was filled, at that time, she
was
residing
at
B-4,
Chandranagar,
Ghaziabad, which was at a distance of
about 3-4 km from Vivek Vihar. She
disclosed that Vasundhara was at a distance
of about 5 km from her house. She
admitted that the defendant no.1's house
was at a distance of about 30 km from her
house. She admitted that the sale deed of
the disputed house had been executed in
favour of defendant no.1. She denied that
the part consideration of the disputed house
was paid by her as loan, to the defendant
no.1. She also admitted that the defendant
no.1 had paid the remaining consideration
to the defendant no.2 and had thereafter,
got executed the sale deed in his favour
from defendant no.2. She also admitted that
the possession of the disputed house had
been given by defendant no. 2 to defendant
no.1. She admitted that there were financial
transactions between her and defendant
no.1 and his wife.

24. The defendant no.1 Omprakash
Gupta examined himself as DW-1 in the
trial court. In his examination-in-chief he
reiterated the submissions made by him in
his written statement. He deposed that since
he was ill, as such, the plaintiff had assured
him that regarding the purchase of the
disputed house, she will help in completing
all the formalities. He further deposed that
since he worked as a civil engineer for 36
years in CPWD, as such, he was fully
aware that the disputed house was very
expensive. He was residing at that time in a
LIG house of DDA, which was very small,
keeping in view his requirements, as such,
on the assurance of the plaintiff, that she
will provide the necessary loan, had applied
for allotment of house reserved for retired
Central
government
employees
on
23.1.2005, after taking loan of ₹ 85,000/-
from the plaintiff. He further deposed that
since he was ill at that time, as such, the
allotment form was filled and deposited by
the plaintiffs husband, with defendant no.2.
He further deposed that he had obtained ₹
7.60 lakhs on loan from plaintiff, which
was deposited through demand draft by
plaintiffs husband, with defendant no.2 on
29.4.2005.
He
further
deposed
that
previously
also
there
were
financial
transactions between him and the plaintiff,
the plaintiff had given a loan of ₹ 59,000/-
to his daughter Ruchi Gupta for purchasing
Shivalik Apartment in Patparganj on
18.8.2002,
which
were
subsequently
returned by his daughter, by cheque to the
plaintiff. He further deposed that half of the
total consideration of ₹ 27,02,120/-, which
amounts to ₹ 13,54,560/-, along with stamp
paper of rupees 2.71 lakhs were deposited
by him with defendant no.2 for executing
lease agreement, which was executed on
19.8.2006 by defendant no.2 in his favour
and also on 11.12.2006 the possession of
the disputed house was also given to him
by defendant no.2. He further deposed that
after payment of the whole consideration,
on 31.3.2008, the sale deed of the disputed
house was executed by defendant no.2 in
his favour. He further deposed that about ₹
25 lakhs was paid by him towards the
consideration of the disputed house. The
plaintiff had no concern with the disputed
house.

25.
DW-1
deposed
in
crossexamination that the marriage of his son
was solemnised on 28.4.2005, and after
that, his son could not have resided with
him, because his house was inadequate for
accommodating all of them. He further
deposed that he had no affection for the
plaintiff, who never trusted him. He also
never trusted the plaintiff. He admitted
250 INDIAN LAW REPORTS ALLAHABAD SERIES
after reading paper no. 9 C that there was
no
reservation
for
retired
Central
government employees in the allotment of
house. He deposed that the above fact of
reservation of house was disclosed to him
by the plaintiff. The house was reserved for
senior citizens, plaintiff was not a senior
citizen. He disclosed that when he had
applied for allotment of the disputed house,
at that time he was retired person, who was
having income from pension and interest.
He also disclosed that he had deposited
money in the MIS scheme of Post Office,
as well as bank. He also disclosed that he
was paying income tax but could not
disclose, when for the last time, he had filed
his income tax return. He disclosed that his
chartered accountant used to file income tax
returns on his behalf, a copy of which was
given to him. He disclosed that at that time, his
son was employed as software engineer in
Bangalore, who was getting annual salary in
excess of ₹ 6 lakhs. He disclosed that the
remaining consideration was paid by him,
after obtaining money from his son, daughterin-law and daughter Ruchi Gupta and some
amount was also given by his wife. He had
also obtained some money from his son-in-law
and his friends. He disclosed that at present his
son was living in the United Kingdom. He
further disclosed that the disputed house was a
duplex house, which was semi-finished.

26. The Apex Court in the case of
Marcel Martins vs. M.Printer and others
(2012) 5 SCC 342, while discussing the
term fiduciary capacity mentioned in
section 4(3)(b) of the Benami Transactions
(Prohibition)Act,1988, held as under:-

"31. The expression "fiduciary
capacity" has not been defined in the 1988
Act or any other statute for that matter. And
yet there is no gainsaying that the same is an
expression of known legal significance, the
import whereof may be briefly examined at
this stage.

32. The term "fiduciary" has been
explained by Corpus Juris Secundum as
under:

"A general definition of the word
which is sufficiently comprehensive to
embrace all cases cannot well be given. The
term is derived from the civil or Roman law.
It connotes the idea of trust or confidence,
contemplates good faith, rather than legal
obligation, as the basis of the transaction,
refers to the integrity, the fidelity, of the party
trusted, rather than his credit or ability, and
has been held to apply to all persons who
occupy a position of peculiar confidence
toward others, and to include those informal
relations which exist whenever one party
trusts and relies on another, as well as
technical fiduciary relations.

The word 'fiduciary', as a noun,
means one who holds a thing in trust for
another, a trustee, a person holding the
character of a trustee, or a character
analogous to that of a trustee with respect to
the trust and confidence involved in it and the
scrupulous good faith and condor which it
requires; a person having the duty, created
by his undertaking, to act primarily for
another's benefit in matters connected with
such undertaking. Also more specifically, in a
statute,
a
guardian,
trustee,
executor,
administrator, receiver, conservator or any
person acting in any fiduciary capacity for
any person, trust or estate."

33.Words
and
Phrases,
Permanent Edn. (Vol. 16-A, p. 41) defines
"fiducial relation" as under:

"There is a technical distinction
between a 'fiducial relation' which is more
9 All. Dr. Ila Gupta Vs. Om Prakash Gupta & Anr.
251
correctly applicable to legal relationships
between parties, such as guardian and
ward, administrator and heirs, and other
similar relationships, and 'confidential
relation'
which
includes
the
legal
relationships,
and
also
every
other
relationship wherein confidence is rightly
reposed and is exercised.

Generally, the term 'fiduciary'
applies to any person who occupies a
position of peculiar confidence towards
another. It refers to integrity and fidelity. It
contemplates fair dealing and good faith,
rather than legal obligation, as the basis of
the transaction. The term includes those
informal relations which exist whenever
one party trusts and relies upon another, as
well as technical fiduciary relations."

34.Black's Law Dictionary (7th
Edn.,
p.
640)
defines
'fiduciary
relationship' thus:

"Fiduciary
relationship.
-A
relationship in which one person is under
a duty to act for the benefit of the other
on matters within the scope of the
relationship.
Fiduciary
relationshipssuch as trustee-beneficiary, guardianward, agent-principal, and attorneyclient-require the highest duty of care.
Fiduciary relationships usually arise in
one of four situations : (1) when one
person places trust in the faithful
integrity of another, who as a result gains
superiority or influence over the first, (2)
when one person assumes control and
responsibility over another, (3) when one
person has a duty to act for or give
advice to another on matters falling
within the scope of the relationship, or
(4) when there is a specific relationship
that has traditionally been recognised as
involving fiduciary duties, as with a
lawyer and a client or a stockbroker and
a customer."

35.Stroud's Judicial Dictionary
explains
the
expression
"fiduciary
capacity" as under: