Oral Judgment:
1. I have heard counsel for the parties at some length today on the following two preliminary issues that were framed under Section 9A of the Code of Civil Procedure, 1908 (âCPCâ?) on 8th December 2014 in the suit filed on 30th July 2014.
(a) Whether the Suit as filed is barred under the provisions of the Benami Transactions Act?
(b) Whether the Suit is barred by limitation?
2. Before I proceed to the merits, I note that not only has the Plaintiff, Sabita Narang (âSabitaâ?) on previous occasions declined to lead any evidence on either of these preliminary issues but even more startling, when, earlier this morning, after having heard Ms. Iyer for Sabita for a little over an hour, I asked her to take instructions, she was only able to say that Sabita would even then not step into the witness box. Sabita has been in Court throughout the day today. Ms. Iyer twice sought and was granted leave including over the lunch recess to consult with her client. I indicated that I was even now, at any time before I began dictating judgment in Court, prepared to allow Sabita to lead such evidence as she thought necessary for the purposes of these two preliminary issues. I did so because I was disinclined to decide a matter such as this without affording Sabita the fullest opportunity to bring all her material before me. I went so far as to say that I would permit even an oral application for leave to give that evidence, and that I would not countenance any opposition from the Defendants in that regard. About this much I was very clear: that disallowing Sabita an opportunity to lead evidence, with possibly fatal results, was a course of action that would certainly determine her rights. Allowing her to lead evidence, on the other hand, would not in itself be a determination of any rights at all. It would only enable Sabita to place on record all the evidence she could possibly marshall. For reasons that are even now unclear to me, but which give me significant pause to doubt, Sabita has chosen not to set foot on this path. That is certainly her choice. Unfortunately, it is a choice saddled with consequences.
3. The dispute pertains to certain assets and properties said to be held in the family of the late Gopal Raheja. During his lifetime, Gopal Raheja amassed a considerable fortune with his many enterprises in the hospitality, shopping, construction and real estate sectors. He died on 18th March 2014 following a protracted illness. His wife, Sheila, died some years earlier. Disputes began in his lifetime, in 2012. These were between him and his son, the 1st Defendant (âSandeepâ?). His daughter Sonali Arora (the 5th Defendant; âSonaliâ?) supported him. So did Sabita, his other daughter, though after a fashion; for, as the following discussion shows, her narrative is something of a departure from her fatherâ™s. Gopal Raheja filed Suit No. 2363 of 2012. A few months after he died, Sabita filed this suit for partition. Sonali filed Chamber Summons No. 708 of 2014 in Gopal Rahejaâ™s suit asking to be transposed as the Plaintiff. I allowed that Chamber Summons on 30th April 2015. Sonali then filed an administration action, Suit No. 103 of 2015. Preliminary issues under Section 9A of the CPC are pending determination in Gopal Rahejaâ™s suit (in which Sonali is now the plaintiff) and in Sonaliâ™s own suit.
4. The three siblings, Sandeep, Sonali and Sabita are now at war over the assets and properties in what Ms. Iyer calls the âGopal Raheja Groupâ?. This seems to me a somewhat fluid term. It sometimes includes Sandeepâ™s spouse, the 2nd Defendant, Durga Sandeep Raheja (âDurgaâ?) so that, used in the context of events that occurred while Gopal Raheja was alive, the so-called âGroupâ? included five persons (Gopal Raheja, his three children and Durga), and possibly a sixth, the Gopal Raheja HUF. Inexplicably, the phrase later shrinks to four persons, viz., Gopal Raheja and his three children. This is a matter of some moment given the frame of Sabitaâ™s suit. The other Defendants are not relevant for the present purposes; some are formal parties.
5. In this suit Sabita claims that the entire complex of corporations and their holdings is âin reality nothing but a convenient means or mechanism for the management and administration of the undivided family holdings and interests which comprise the Gopal Raheja Group properties, assets and businesses.â? She claims that there was an understanding by which Gopal Raheja as the head of this group was at all material times the ultimate authority in all matters of decision making in relation to this group and its assets. Ms. Iyer speaks of the group as some sort of distinct legal entity, a use that I do not believe is entirely accurate. Sabita says that from the time of a separation in 1995-1996 between Gopal Raheja and his brother Chandru Raheja all the assets and properties that â˜came to the Gopal Raheja Groupâ™ were the undivided property of all members of this Group, i.e., that all of them had an equal undivided share, right, title and interest in the entirety of those assets, holdings and properties. The fact that these assets were held in the names of one or the other of the members, or in joint names, is, she says, entirely immaterial. This was only â˜for convenienceâ™. Consequently, Sabita claims to be entitled to a partition and to her one-fourth share in all these assets; and, through her fatherâ™s will (yet to receive probate), a one-half of his one-fourth share. There having been no separation or partition till now, Sabita says, she is entitled now to sue for partition. No question of limitation arises, she insists; and, since there is this element of co-ownership (the equivalent of being tenants in common), the implied unity of possession itself means that every person in that group held any particular asset or property in trust and in a fiduciary capacity for the others. Thus, in view of the provisions of Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 (âthe Benami Actâ?), a claim of this nature is not prohibited. That is the frame of the suit; and that is the basis of prayer (A), for a declaration of an equal and undivided share in all the properties and assets, and prayer (B), for a partition of these, in the suit.
6. The factual background is this. Gopal Raheja, his parents and other family members were amongst those who migrated to India at the time of Partition in 1947. In 1956, having obtained a B.E. in civil engineering, Gopal Raheja joined his father and two uncles in the family real estate business. In time, so did his younger brothers Chandru and Suresh. Their father, Lachmandas, separated from his brothers in 1966, and continued in business with his sons, the youngest one joining the business some years later. The Lachmandas branch did business in the name âK. Raheja Groupâ?, using it as a corporate name and as a brand. Lachmandas died in 1983. Four years later, the youngest of the three brothers, Suresh, separated. Gopal and Chandru Raheja continued together in business.
7. By 1992, the K. Raheja Group, under Gopal and Chandru Raheja, was already well known in construction, real estate, retail and hotels. Several prominent projects had been completed. In 1993, Gopal Rahejaâ™s wife, Sheila, the mother of Sandeep, Sonali and Sabita, passed away. Gopal Raheja never remarried.
8. We come now to the events of 1995-1996. These are crucial to Ms. Iyerâ™s case. This was the time when four separate writings were executed as part of the family separation between Gopal Raheja and his brother Chandru Raheja and their respective families. Copies of these documents dated May 1995, 5th April 1996, 16th November 1996 and 9th December 1996 (Plaint, Exhibit âC1â? at pp. 178-180, Exhibit âC2â? at pp. 181-183, Exhibit âC3â? at pp. 184-193, and Exhibit âC4â? at pp. 200-211)constitute what Ms. Iyer calls the 1995-1996 arrangement. Between them, these writings provide for a separation of the various assets and businesses that were till then held in an interlocking fashion between Chandru Raheja and his family on the one hand and Gopal Raheja and his family on the other. Ms. Iyer stresses that these documents speak of a â˜vestingâ™ of assets in the â˜Gopal Raheja Groupâ™. She commends an interpretation that this must mean, and mean only, that the assets vested jointly in all members of the Gopal Raheja Group, each of them having an equal undivided share in every one of these assets, properties and holdings. She also says that it matters not that the actual assets were held by individual members of the Gopal Raheja family. According to her, the family arrangements required the assets to be placed in the names of â˜a nomineeâ™ or â˜nomineesâ™ on behalf of each group. For completeness, she points out that the separation was to be effected in three phases and that the second and third of these remained undone, and that this resulted in a later Suit No. 232 of 2014 by the Chandru Raheja Group against the Gopal Raheja Group. According to Ms. Iyer, the 1995-1996 Family Arrangement made it clear that particular properties, assets and businesses â˜vested collectivelyâ™ in the Gopal Raheja Group and each member of the Gopal Raheja Group had and since then has an equal and undivided share, right, title and interest in the properties, assets and businesses of the Gopal Raheja Group and its management and control. This is the basis of the claim for partition.
9. Ms. Iyer also claims that the working of the Gopal Raheja Group after the 1995-1996 Family Arrangement demonstrates inter alia that all holdings were in fact maintained in trust for the Group as a whole. I must note that there is even at this stage the unexplained contradiction to which I earlier referred: the 1995-1996 agreement includes Durga, Sandeepâ™s wife. Yet for reasons that are not at all apparent, Sabitaâ™s claim wholly excludes Durga and is on the basis that Gopal, Sandeep, Sonali and Sabita each had and today have equal an one-fourth undivided share, right, title and interest in all properties and assets. On Gopal Rahejaâ™s demise, in terms of his Will, his share is to come, Sabita says, to her and Sonali. Ms. Iyer also attempts to show that even if any assets or holdings remained in a particular individualâ™s name this was âfor business expediency and convenience and did not in any manner affect the status of the undivided Gopal Raheja Group.â? She also speaks of a so-called â˜practiceâ™, both before and after the 1995-1996 Family Arrangement of adding a second name âagain for convenienceâ?. In essence, Ms. Iyer claims that it was agreed and understood that Gopal Raheja as the pater familias controlled all dispositions, transfers and holdings between the members of his family till he personally decided on a separation or their distribution, notwithstanding that the very many holdings were in the names of one or more individuals. Ms. Iyer also contends that every one of the four members that she includes in her definition of the Gopal Raheja Group had a community of undivided interest in the entirety of the assets that came to Gopal Rahejaâ™s family on his separation from his brother. This includes ownership of holdings and equity in family-controlled enterprises. There are then additional claims about similar practices and certain events, all to allege that no individual exercised any independent rights to the exclusion of the others, and so on.
10. There then follows Ms. Iyerâ™s delineation of the events of 2004. At that time it seems that Sonali was diagnosed with a grave medical condition. Sandeep, or so says Sabita, expressed certain apprehensions and insecurities to their father Gopal Raheja. For the purposes of limitation, it is important to note that Sabita in her Plaint now speaks of a â˜common understandingâ™ said to have been arrived at about this time in 2005-2006. Sabita says that in order to allay Sandeepâ™s fears and insecurities, Gopal Raheja agreed to what is described as a â˜temporary changeâ™ in the shareholding and asset holding patterns so that Sandeep, Durga and their minor daughters took about 58% of the shareholding, Gopal Raheja himself retained 42%, and the relatively negligible remainder was distributed between Sabita and Sonali. Sabita insists that these transfers were merely ostensible: innocuous in execution, placatory in intent and ineffective of purpose. She insists that they were not in defeasance of her claim of undivided interest and co-ownership. She claims that the consideration for these transfers was illusory and deceptive, and attempts to show that the consideration was cycled so that there was no consideration at all. She says that there was no change in the actual beneficial ownership and that there was an understanding at that time, i.e., in 2004, that the community of interest and title in the entirety of the holdings and assets was ever intended to continue.
11. The disputes, till then evidently suppurating, burst open in September 2011. Gopal Raheja was then about 78 years old. Sabita says that Sandeep for the first time did not cooperate in arriving at a family arrangement. She pegs this date at 1st September 2011. She claims that this was because Sandeep disapproved of Gopal Rahejaâ™s long-standing relations with another lady. There follow allegations of deceit, cheating and defrauding, and then finally Sabita says that Sandeep took disadvantage of his fiduciary position and claimed inter alia that there was a family arrangement much earlier in time, in 1992. He claims this for the first time, she says, in his letter dated 28th January 2012 to Gopal Raheja. There are allegations about the events of that month, but it is Sabitaâ™s case that after September 2011 and January 2012, Sandeep and Durga virtually usurped the properties, assets and businesses of the Gopal Raheja Group as also its management and control, inter alia on the basis of the alleged family arrangement of 1992. There was some correspondence thereafter between Gopal Raheja and Sandeep Raheja and ultimately Gopal Raheja filed Suit No. 2363 of 2012 in this Court, in which he said that he had made a division and distribution on 1st June 2012; that this was valid and binding; and sought its enforcement. There is in this sequencing a letter dated 13th April 2013 from Sandeep to Sabita in which Sandeep denied that Sabita had any particular interest in Defendant No. 9 or any other asset or entity in the Group.
12. Gopal Raheja died on 18th March 2014; just two days, as I recall, before his examination was to commence by videoconferencing before me. There followed Sonaliâ™s application for transposition, the present suit and Sonaliâ™s suit for administration, matters to which I have earlier referred and, for that reason, will not repeat here.
13. I return now to the issue with which I began: Sabitaâ™s refusal to give evidence in the matter. As I see it, the entirety of her case, from start to finish, demands evidence. She says that after the 1995-96 Family Arrangement, the family business continued to be closely-held, and run as a joint family quasi-partnership. This needs evidence. She says that âno member of the Gopal Raheja Group ever asserted any rights independently as shareholder and/or Director but always acted in a fiduciary capacity and in trust for each otherâ?. That needs evidence. She claims that âall properties, assets and business that came to the share of the Gopal Raheja Group are vested in the Group as a whole; and since then there has been no inter se partition/division or distribution between the members of the Groupâ? and that âall the properties, assets and businesses continued to vest collectively in the members of the Group with each member entitled to/holding an equal and undivided share, right, title and interest in the properties, assets and businesses and management and control thereof.â? Given that the Plaint says that in the interregnum there was a change in the share and asset holding pattern, this â˜continuanceâ™ is a matter of evidence. She alleges, as a matter of established fact that no member of the Gopal Raheja Group exercised or attempted to exercise any independent rights in respect of the shareholding or Directorship. That requires evidence.
14. Then Sabita says this in paragraph 6.B.1.(ix) of her written submissions, referencing paragraph 108 of the Plaint:
(ix) there was only one pro-tem change of ostensible and/or nominee holders of shares in the year 2005-06 as an interim measure to assuage the fears, insecurities and apprehensions of Defendant No.1 (as per the directions of late Gopal L. Raheja) and on the reiteration of the common understanding inter se the Gopal Raheja Group that the final division and distribution of the properties, assets and businesses of the Gopal Raheja Group will be effected between the family members at the appropriate time and without in any manner affecting the share, right, title and interest of any member as crystallized and reiterated in terms of the 1995-96 Family Arrangement writings.
15. This is clearly a matter of evidence in every single aspect. Whether the change was pro tem or not, whether the holdings were ostensible, whether the holders were nominees, whether this was for the alleged purpose of assuaging Sandeepâ™s â˜fears, insecurities and apprehensionsâ™ (and even that he did indeed have any such â˜fears, insecurities and apprehensionsâ™), that there were directions by Gopal Raheja, that there was a reiteration of anything at all, or that there was a â˜common understandingâ™, and what the terms of that â˜common understandingâ™ might be and how they related to the 1995-1996 Family Arrangement, and so on to the end of the chapter â” all of this, in my view, demands evidence. It is not the kind of factual material that can legitimately be assumed. There are other allegations, too: of Sandeep and Durga reneging on this â˜common understandingâ™, of the incorrectness of Sandeepâ™s claim to a prior 1992 agreement and so on, also all requiring evidence.
16. Yet these allegations are, as the matter stands before me today, the only basis for Sabitaâ™s case that the holdings were all maintained as nominees, in an ostensible fashion, with the impress of a trust. Two submissions are, in particular, noteworthy. These are in paragraphs 6.F.(v) and (vi) of the written submissions.
v) The Plaint throughout states that all holdings being in terms of 1995-96 Family Arrangement writings are holdings as â˜nomineeâ™ in a fiduciary capacity and in trust for the benefit of the Group as a whole.
vi) The Plaint repeatedly sets out that none of the parties acquired and/or exercised any beneficial rights independently.
17. âThe Plaint throughout statesâ?; âthe Plaint repeatedly sets outâ?; what is to be made of this? Am I to assume today the correctness of any of this merely because âthe Plaint throughout statesâ? this or that or âthe Plaint repeatedly sets outâ? a very great many things? This is not an application under Order VII Rule 11 of the CPC. This is a test of jurisdiction under Section 9A. I understand that the question of whether or not limitation can be tried as a preliminary issue is pending before a larger Bench of the Supreme Court, but the two assertions I have set out above do not relate to limitation. They relate principally if not exclusively to the question under the Benami Act. Is the Plaintiff not required to prove the correctness of what her âPlaint throughout statesâ? or ârepeatedly sets outâ?? If so, this is an exception to the law that, at least as of today, is not to be found in the statute.
18. These allegations â” and they are only allegations still, entirely unproved â” are the only basis on which I am asked to conclude affirmatively that the first preliminary issue must be answered in the negative. In other words, I am invited to return a finding of fact based only on allegations, sans evidence, sans proof. I must necessarily conclude that there was in fact such a trust of the kind of which Sabita speaks. Consequently, I must find as a matter of law following this finding of fact that the provisions of the Benami Act do not apply.
19. As to limitation, that is always at the very least a mixed question of law and fact. Sabita says time runs from January 2012 or 24th March 2014 or December 2011 and her suit is within time. She does not care to explain why it should not run from the 2004 or the 2005-2006 â˜common understandingâ™ of which her own Plaint âthroughoutâ? and ârepeatedlyâ? speaks.
20. This is not the first time Sabita was asked if she wished to lead evidence. I sought this from her twice before, on 8th December 2014 and 9th April 2015. Her response, declining to lead evidence, is noted in the orders of those days.
21. Ms. Iyer attempts a submission that Sabitaâ™s evidence is unnecessary as there are important admissions allegedly made by Sandeep which will suffice. I do not think that is a permissible course of action. It is true that an admission furnishes the best evidence where it remains unexplained (Ramji Dayawala and Sons (P) Ltd v Invest Import, (1981) 1 SCC 80).But an admission must be clear and unambiguous. It must be read as a whole. It is substantive evidence and can be used without being put to the maker of it in cross-examination, but it is not conclusive proof of the matters admitted. An admission must still be duly proved; and it is when proved that an admission is admissible evidence irrespective of whether the party making it appeared in the witness box or not and whether or not the party making it was confronted with it because he or she made a statement contrary to that admission (Bharat Singh and Anr. v Bhagirathi, AIR 1966 SC 405; Murlidhar Sapuji Valve v Yallapa Lalu Chougule, AIR 1994 Bom 358).Therefore, irrespective of whether or not Sandeep chooses to give evidence, any admission attributed to him must still be clearly identified, must itself be unambiguous and must be proved. That can only be done by Sabita leading evidence. No such admission is shown or proved.
22. Given this, Ms. Iyerâ™s citing of several authorities seems to me to quite considerably beg the question. At least three of these seem to me to be against the propositions she advances. Marcel Martins v M. Printer and Ors (AIR 2012 SC 1987).speaks of determining the existence of a fiduciary capacity for the Benami Act âin a factual backdropâ?. That is a clear indicator of the need for evidence. SM Wahi v Ms. Reeta Wahi (2006 ILR 1 Delhi 774)was in relation to a fiduciary relationship in the context of the Benami Act, and the decision was under Order VII Rule 11 of the CPC, a provision that is materially different from Section 9A. Inescapably, that decision proceeded as on a demurrer, on the basis of the pleadings in the plaint. That plaint referenced a written admission of the defendant accepting the fact that the property was being held by him as a trustee. That is a very different matter from the case at hand. Incidentally, Wahi also holds that â˜every nominee may not be a fiduciaryâ™. Similarly, Binapani Paul v Pratima Ghosh and Ors. (AIR 2008 SC 543)is not an authority for the proposition that no evidence is required to prove the fiduciary relationship required by Section 4(3) (b) of the Benami Act. To the contrary: Binapani Paul was a case that was fully tried and decreed by the trial court. Finally, as regards limitation, Hari Shankar Singhania v Gaur Hari Singhania and Ors., (AIR 2006 SC 2488 (1)a case on which Ms. Iyer places considerable reliance, itself says that the starting point of limitation is a question of fact. The finding as to the distribution and the onset of disputes was assessed in Singhania as a matter of commonly accepted fact. I do not believe that the generally stated principle in that case can be applied willy-nilly to every single case of a family dispute. Indeed, it seems to me to be entirely wrongly applied here. The dispute is not about the 1995-1996 Family Arrangement. Even according to Sabita, that is only the genesis of the â˜commonâ™ holding, trusteeship and beneficial interest. That was an arrangement between the Chandru Raheja and Gopal Raheja families and it is not being tested in this case at all. What is in dispute in this case is something entirely different, i.e., the disputes internal to the Gopal Raheja family. Here, Sabitaâ™s case seems to be that there was a common understanding of 2004 or 2005-2006, something that is not admitted, and that there was no previous understanding as Sandeep claims there was. This decision does not assist Ms. Iyer either. The remaining authorities carry the matter no further (On the Benami Act: Canbank Financial Services v Custodian, AIR 2004 SC 5123; Dr Jagdish Bansal v Shivkumar Pal, MANU/DE/3903/2012; On limitation: Annasaheb Bapusaheb Patil v Balwant B. Patil, AIR 1995 SC 895; Daya Singh v Gurdev Singh, AIR 2010 SC 3240; Gunvantbhai M. Shah v Anton Elis Farel, AIR 2006 SC 1556).
23. This is enough to unsuit the Plaintiff. But if there were any remaining doubts, I believe these to be quite firmly extirpated by the submissions advanced by Mr. Khambata for Sandeep and Mr. Kamdar for Durga and her children. As they point out, Section 4 forbids an action to recover property held benami, as defined in Section 2. Then Section 4(3) makes an exception, and the second of those is in relation to trusteeship. A trusteeâ™s holding can never be said to be benami. The result is that unless trusteeship be shown, no suit to enforce a right over property held by a benamidar lies at the instance of a person claiming to be the â˜realâ™ owner of that property. Section 7 of the Benami Act repeals Sections 81 and 82 of the Trusts Act, which deal with resulting or implied trusts, and Section 94, which deals with constructive trusts. Consequently, in order to fit within the exception of Section 4(3)(b) of the Benami Act, the â˜trustâ™ spoken of must be one that is outside Sections 81, 82 and 94 of the Trusts Act; and this leaves only an express trust within the meaning of Sections 5, 6 and 10 of the Trusts Act. Those provisions demand the formality of an express declaration of trust, its objects and purposes, its property, beneficiaries and, importantly, an acceptance of trusteeship by the named trustee. None of these requirements are met. There is no pleading of an express trust at all, as indeed there could not have been. The only pleading, and that is clear even from the written submissions, is of an implied trust, i.e., of the â˜impressâ™ of a trust. At most, Sabita might have been able to claim the existence of a resulting trust; but even that is now barred. However, Section 4(3)(b) also speaks of a property being held by some other person standing in a â˜fiduciaryâ™ capacity. This may happen as in Reeta Wahiâ™s case before the Delhi High Court, where there was an actual admission of the property being held in trust, albeit without the necessary formality of a regular deed of settlement of an express trust. It might also arise where the law imports a fiduciary relation. Not every holding in a family is fiduciary, and not every nominee is proprio vigore a fiduciary. It is certainly not insignificant that Sabitaâ™s claim extends to equity holdings in companies. At a minimum, if these holdings were â˜impressed with trustâ™, they required a statutory declaration under Section 187C of the Companies Act, 1956 or Section 89 of the Companies Act, 2013. The 2013 Act came into force before the present suit was filed. Section 89(8) makes it clear that absent the necessary declaration, no right in relation to that shareholding is enforceable. This would have been entered on the companiesâ™ registers of members. There is no such case even made out.
24. Sabita had the opportunity to establish this fiduciary relationship, even outside the exclusions of the Benami Act, and relying on the second part of Section 4(3)(b), i.e., âother fiduciary capacityâ?. She might have shown, say, that while assets were held in one name, the benefits or income from those assets were shared in a manner inconsistent with a sole or personal holding. Sabita repeatedly refers to â˜intentionsâ™, â˜understandingsâ™, â˜practicesâ™ and more. Of this, there is no evidence whatever. All that I have is a surmise piled on conjecture wrapped up in speculation.
25. Ms. Iyerâ™s arguments that the 1995-1996 Family Arrangement used the words âvestingâ? and ânominee/sâ? and that, therefore, there is an admitted commonality of interest is also incorrect. That word ânomineeâ? is only used in the context of a separation from the Chandru Raheja Group to say that one or more assets or properties would vest in this or that person from the Gopal Raheja Group upon a separation being effected. This does not mean that the transferee held the asset as a nominee vis-à -vis other family members of his or her own group. Ms. Iyerâ™s formulation seems to me to proceed on the basis that the term â˜Gopal Raheja Groupâ™ is a reference to some sort of juristic entity rather than a term of convenience used in the documentation of 1995-1996. The transfer of assets between the Chandru Raheja Group and the Gopal Raheja Group does not by itself demonstrate any fiduciary capacity within the Gopal Raheja Group itself.
26. In my view, the first preliminary issue must be answered in the affirmative. The suit is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988.
27. Mr. Khambata and Mr. Kamdar say that there is a reason that Sabita has repeatedly declined to enter the witness box or lead evidence. Had she done so, she would no doubt have been confronted with her own inconsistencies. In her response to Gopal Rahejaâ™s suit, Sabita said that Gopal Rahejaâ™s three children held shares and assets in trust for Gopal Raheja. This is a remarkable departure from the case that is now propounded. In his suit, Gopal Raheja claimed that there was a â˜GL Raheja Family Arrangementâ™ of June 2012. He sought its enforcement. Sabita in her affidavits filed in the Notice of Motion in that suit, supported this stand; and did not controvert Gopal Rahejaâ™s case that between 2005 and 2007, Sabita voluntarily transferred some shareholdings to Sandeep and his family. This is directly contrary to what she now says. The so-called G L Raheja Family Arrangement is at odds with Sabitaâ™s claim in this suit. Both cannot co-exist. The essence of the G. L. Raheja Family Arrangement of 2012 is that Gopal Raheja was the beneficial owner of all the assets and properties; and that it was he who effected a distribution in 2012. Sabitaâ™s case today is that Gopal Raheja only ever had 25% ownership; and she does not explain how she could have ever supported Gopal Rahejaâ™s case at any time. She took something akin to the present stand only in her written statement to Gopal Rahejaâ™s suit. The two stands are not just inconsistent; they are mutually destructive.
28. As regards the second issue of limitation, this can be dealt with shortly. It is a mixed question of fact and law. No facts are proved as required by Section 9A of the CPC. Ms. Iyer says that the suit is within time since it was not till 30th April 2013 that Sandeep denied Sabita her rights. Even taking the date of 28th January 2012, which is when Sandeep first claimed the 1992 oral agreement in his letter to Gopal Raheja, the present suit would nonetheless be in time. It is filed well within three years of either of these two dates. This argument unfortunately overlooks a critical set of averments in the Plaint itself. To begin with, the Plaint contains no specific statement as to limitation but only says that the cause of action has arisen within the three preceding years. Even assuming that Sabita had a right to sue for partition at any time, her own averments in the Plaint do not support this. There are share transfers said to have been made in 1996, 2001, 2005, 2006 and 2007 and each of these is said to have been in derogation of the rights claimed by Sabita under the 1995-1996 Family Arrangement. These claims are clearly out of time. There can be no saving by virtue of Section 10 of the Limitation Act on the basis that this is a suit against a trustee or his representatives. The pleading in the Plaint is only of a resulting trust and not an express trust (Soonderdas Thakersey and Ors. v Bai Laxmibai and Ors., [1945] ILR Bom 1047).Moreover, Sabita herself speaks of not one but half a dozen different family arrangements or understandings. One such understanding is post the 1995-1996 Family Arrangement. This finds mention in paragraph 21(g) of the Plaint. There is then in paragraph 26 a mention of a yet another oral arrangement and a common understanding arrived at in regard to a family arrangement for division and distribution of properties. Then there is a later oral agreement mentioned in paragraph 28(c) of the Plaint and this is of 2005. There are at least three or four more such allegations of separate family arrangements.
29. All of these are of course unsupported, without particulars and today without evidence. It is, I think, for the Plaintiff to have convincingly led evidence to establish these alleged family arrangements. In any case, what appears to be material is that if according to the Plaintiff in 2005-2006 there was an agreement or understanding by which certain properties were transferred to Sandeep Raheja, and if this was in derogation of the 1995-1996 Family Arrangement, then that must surely be a starting point of limitation of this suit.
30. In my view, it is not possible to hold in favour of the Plaintiff in the absence of necessary evidence. A mere pleading is insufficient (K. S. Nanji and Co v Jatashankar Dossa, AIR 1961 SC 1474).It appears to me that the suit is wholly out of time. At any rate, a substantial part of the relief sought is barred by limitation. Without evidence, a segregation of these claims is impossible. The second issue is also answered in the affirmative.
The suit is barred by limitation.
31. Consequently, the suit is dismissed. There will be no order of costs.