SRI MARCEL MARTINS Vs M. PRINTER .
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: C.A. No.-006645-006645 / 2003
Diary number: 908 / 2002
Advocates: LAWYER S KNIT & CO Vs
NAVEEN R. NATH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6645 of 2003
Sri Marcel Martins …Appellant
Versus
M. Printer & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. This appeal by special leave arises out of a judgment
and order passed by the High Court of Karnataka at
Bangalore whereby OS No.3119/90 filed by the
respondents for a declaration to the effect that they are co-
owners of the suit property and for an injunction restraining
the defendant-appellant from interfering with their
possession has been decreed. The factual backdrop in
which the suit is filed may be summarised as under:
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The suit property comprises a residential house
bearing Municipal No.33, A and B Block, Austin Town,
Bangalore-47 which was originally owned by the
Corporation of the city of Bangalore. The said property was
leased by the Corporation to late Smt. Stella Martins-
mother of the parties before us. In the year 1978 the
Corporation took a decision to sell the said property and
presumably similar other properties to those in occupation
of the same. The State Government also approved the said
proposal with a note of caution that care should be taken to
correctly identify the occupants of the property being sold.
Before a sale could be effected in her favour, Stella Martins
passed away in November, 1982 leaving behind her
husband Sri C.F. Martins, their daughters (respondents in
this appeal) and the appellant who happens to be the only
son of his parents. The case of the plaintiffs-respondents is
that the Corporation desired that transfer of the tenancy
rights held by Smt. Stella Martins should be made to only
one individual out of the several legal representatives left
behind by the deceased. It was for that reason that the
husband of the deceased-tenant and the daughters-
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respondents herein all consented to the transfer of the
tenancy rights in favour of the appellant.
In due course the Corporation raised a demand for a
sum of Rs.48,636/- towards consideration for the sale of
the suit property to the appellant who held the tenancy
rights. The case of the plaintiffs-respondents before us is
that in order to satisfy the said demand Sri C.F. Martins-
father of the parties in this appeal, transferred a sum of
Rs.35,636/- to an account jointly held by respondent no.1
and her husband for purchasing a bank draft in order to
satisfy the Corporation’s demand referred to above. A
demand draft for a sum of Rs.48,636/- was eventually
purchased on 13th November, 1986 by debit to the saving
account of respondent no.1 and her husband and paid to
the Corporation on the 14th November, 1986. A sale deed
was on payment of the sale consideration, executed in
favour of the appellant on 26th June, 1987. The plaintiffs-
respondents further case was that Sri C.F. Martins-plaintiff
no.1 executed a registered will on 16th August, 1989
whereby he bequeathed his entire estate including the suit
schedule property equally to all his children. An affidavit 3
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setting out the circumstances in which the suit schedule
property was transferred in favour of the appellant was also
sworn by the father of the parties on 15th November, 1989.
A dispute relating to the suit schedule property having
arisen between the parties including Sri C.F. Martins, their
father, the latter filed a criminal complaint in December
1989 followed by OS No.3119 of 1990 in the Court of VI
Additional City Civil Judge, Bangalore, praying for a
declaration to the effect that the plaintiffs were co-owners
in the schedule property to the extent of their contribution
and praying for an injunction restraining the defendant-
appellant herein from interfering with the possession of
plaintiff nos.1 and 2 over the same.
In the written statement filed by the defendant-
appellant, it was, inter alia, alleged that the entire sale
consideration towards purchase of the schedule premises
was provided by him, which made him the absolute owner
of the suit property. On the pleadings of the parties, the
Trial Court framed the following issues for determination:
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1. Whether the plaintiffs prove that plaintiffs and defendant contributed the purchase money of suit site?
2. Whether the plaintiffs prove that plaintiffs and defendant are having a right in the schedule premises as co-owners?
3. Do the plaintiffs prove that they are in lawful possession of the suit property?
4. Do the plaintiffs prove that defendant threatened to throw away them from the suit property?
5. Whether defendant proves that the entire sale consideration towards purchase of suit schedule property was contributed by him?
6. What relief or order?
Addl. Issues:
7. Whether the plaintiffs are entitled for a decree of permanent injunction restraining the defendant from forcibly dispossessing the plaintiffs other than by due process of law?
The parties led oral and documentary evidence in
support of their respective cases eventually culminating in
the judgment and order dated 29th March, 1995 passed by
the Trial Court dismissing the suit filed by the plaintiffs.
Aggrieved by the above judgment and decree the
plaintiffs-respondents filed Regular First Appeal No.402 of
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1995 before the High Court which was allowed by the High
Court by its judgment and order dated 26th March, 2001
impugned before us. The High Court reversed the findings
recorded by the Trial Court and decreed the suit filed by the
plaintiffs-respondents, as already noticed above.
The High Court on a re-appraisal of the evidence took
the view that the appellant had not succeeded in proving
that he had paid the entire amount of consideration for the
purchase of the suit property. The High Court held that the
deposition of the Bank Manager had clearly established that
the joint account held by the appellant and his father Sri
C.F. Martins had never been operated by the appellant.
The High Court further held that the appellant’s case that
he had withdrawn a sum of Rs.23,000/- towards the sale
consideration from the post office savings account was not
borne out by the record of the Post Office the withdrawals
having been made in the year 1982 whereas the sales
consideration was deposited five years later in 1987. The
High Court further held that the deposition of plaintiff no.1
Sri C.F. Martins to the effect that his children had
contributed equally towards the sale consideration had 6
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remained unassailed in cross-examination. The contention
urged on behalf of the defendant-appellant herein that the
suit was hit by The Benami Transactions (Prohibition) Act,
1988, was also repelled by the High Court.
2. Appearing for the appellants Mr. Anoop G. Chaudhary
strenuously argued that the findings recorded by the High
Court were contrary to the weight of evidence on record
hence legally unsustainable. Mr. Chaudhary took pains to
refer to us the depositions of the witnesses and the
documents on record in an attempt to persuade us to
reverse the findings of fact recorded by the High Court.
Mr. Naveen R. Nath, learned counsel appearing for the
respondents, on the other hand, argued that the High Court
being the last Court of facts, in the absence of any
perversity in the approach adopted by the High Court
causing miscarriage of justice, there was no room for a
reappraisal of the evidence and reversal of the findings
recorded by the High Court on facts. He contended that
the findings recorded by the High Court were even
otherwise fully justified in the light of the overwhelming
evidence on record. 7
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3. The High Court had, on the basis of the rival
submissions made before it, formulated two distinct
questions that fell for its consideration. The first was
whether the entire sale consideration required for the
purchase of the suit property was provided by the
defendant or contributions in that regard were made even
by the plaintiffs. The second question which the High Court
formulated was whether the plaintiffs and the defendant
were co-owners of the suit property and whether the sale
transaction in favour of the appellant was a benami
transaction so as to be hit by the provisions of the Benami
Transactions (Prohibition) Act, 1988.
4. While answering the first question, the High Court
referred to the evidence on record including the deposition
of witnesses especially Respondent No.1 (PW-2) who had
played a dominant role in obtaining the sale deed from the
Corporation. This witness had stated that each one of the
children had contributed Rs.5000/- whereas the rest of the
amount was paid by their father Sri. C.F. Martins to make a
total of Rs.48,636/- demanded by the Corporation towards
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the sale consideration for the premises. She also stated
that the said amount was paid by a demand draft obtained
from her and her husband’s joint account which fact was
certified even by the bank in terms of Ex.P.2, a letter
stating that the bank draft in question had been issued by
debit to the account jointly held by her and her husband.
The original sale deed was also in possession of the said
witness as was the possession of the suit property. She
had further stated that the amount of Rs.35,636/-
transferred to her account in November, 1986 had been
paid by their father alone and not jointly by the defendant-
appellant and their father as alleged by the former.
5. The High Court also relied upon the deposition of
respondent No.2 (PW-3) who similarly supported the
plaintiffs’ version regarding contribution of Rs.5000/- for
the purchase of the suit schedule property and PW-4-the
Bank Manager who was examined to speak about Savings
Account No.902 standing in the name of the first plaintiff
and the appellant herein. The Manager had deposed that
plaintiff no.1, Sri C.F. Martins, used to get cheques in
pound sterling from the Crown Agents, London and the 9
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bank used to purchase the cheques convert the same into
rupees and credit the amount to the account every month.
It was also stated that although the defendant-appellant
was a joint holder of the account, he had never operated
the said account. The High Court upon a careful reappraisal
of the evidence concluded as under:
“From the aforesaid evidence on record what emerges is Rs.48,636.00 is the consideration amount paid to the Corporation for purchase of the schedule property. The same amount was paid by way of a demand draft. The said demand draft was obtained from the Savings bank Account no. 339 of the second plaintiff on 13.11.1986. These facts are not in dispute. Now it is also not in dispute a sum of Rs. 35,636.00 was paid to the second plaintiff by the first plaintiff from his Savings Bank Account which amount was utilized by the second plaintiff to purchase the demand draft towards sale consideration after making good the balance amount. The defendant contends in one breath that he sent a cheque for Rs. 48,636.00 from Bombay where he was working to the plaintiff for the purpose of sale consideration. The evidence on record clearly falsified this part of the case of the defendant and the falsity of the said stand taken by the defendant. The next version given by the defendant is this cheque for Rs. 35,636.00 issued from Savings Bank Account No.901 as per Ex.D.5 is a cheque issued by him to the second plaintiff towards the sale consideration. The evidence of the manager of the bank discloses that the defendant never operated the bank account. On the contrary, the evidence of P.W.1 and the other material on record discloses that it is a cheque issued by P.W.1 in favour of PW.2 which again exposes the falsity of the case of the defendant.”
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6. The High Court noticed the reasons given by the Trial
Court in support of its findings and found the same to be
untenable. The High Court observed:
“Therefore, in view of my discussion as aforesaid, I am of the opinion that the defendant has miserably failed to establish that the entire sale consideration of Rs.48,636.00 was paid by him. On the contrary the plaintiffs have established their case that plaintiffs 2, 3 and 4 and defendant have contributed Rs. 5000.00 towards the sale consideration and the balance amount has been contributed by the first plaintiff. As such it cannot be said that the defendant is the absolute owner of the suit schedule property.”
7. We do not find any error much less any perversity in
the view taken by the High Court nor do we see any
miscarriage of justice to warrant interference with the
finding that the sale consideration for the purchase of the
suit property was contributed by the plaintiffs and the
defendant and not provided by the defendant alone as
claimed by him. We have, therefore, no hesitation in
upholding the said findings which is at any rate a pure
finding of fact.
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8. On the second question the High Court relied upon the
principles underlying Section 45 of the Transfer of Property
Act, 1882, apart from holding that the purchase of the suit
property in the name of the appellant by contributions
made by the remaining legal representatives and the
original owner did not amount to a benami transaction. The
High Court held that if a part of the consideration paid for
the property in dispute had been provided by the appellant
in whose name the property was purchased, the transaction
could not be said to be a benami transaction. The High
Court was of the view that since the appellant had raised
the contention that the entire sale consideration had been
provided by him, he was according to the High Court
estopped from contending that the transaction was a
benami transaction hit by the provisions of Section 4 of
Benami Transactions (Prohibition) Act, 1988.
9. Mr. Chaudhary, learned counsel for the appellant
submitted that the High Court was in error in holding that
the Benami Transactions (Prohibition) Act, 1988 was not
applicable. The transaction in question argued the learned
counsel was benami to the extent the title to the property 12
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was transferred in the name of the appellant while
consideration for such transfer was provided by the
plaintiffs. He submitted that Section 3 prohibited any
benami transaction while Section 4 prohibited recovery of
property held benami from a person in whose name the
same is held. He contended that the suit filed by the
respondents fell within the mischief of Section 4 and was,
therefore, liable to be dismissed.
10. Mr. Nath, learned counsel for the respondents, on the
other hand, submitted that not only on the principle of
estoppel which the High Court had invoked but even in the
light of the provisions of Section 5 of the Act the appellant
was not entitled to plead the prohibition under Section 4 of
the Act. He further argued that sub-section (3) (b) of
Section 4 specifically saved a transaction where the
property is held by the person who stands in a fiduciary
capacity for the benefit of the person towards whom he
stands in such capacity.
11. Section 2 of the Benami Transactions (Prohibition) Act,
1988 defines a benami transaction as under:
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“Section 2 (a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person;”
12. Section 3 forbids benami transaction while sub-section
(2) thereof excludes such a transaction enumerated therein
from the said provision. Section 4 of the Act, upon which
heavy reliance was placed by Mr. Chaudhary, may be
extracted in extenso:
Section 4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee
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or towards whom he stands in such capacity.”
13. A plain reading of the above will show that no suit,
claim or action to enforce a right in respect of any property
held benami shall lie against the person in whose name the
property is held or against any other person at the instance
of a person claiming to be the real owner of such property.
It is common ground that although the sale deed by which
the property was transferred in the name of the appellant
had been executed before the enactment of above
legislation yet the suit out of which this appeal arises had
been filed after the year 1988. The prohibition contained in
Section 4 would, therefore, apply to such a suit, subject to
the satisfaction of other conditions stipulated therein. In
other words unless the conditions contained in Section 4(1)
and (2) are held to be inapplicable by reason of anything
contained in sub-section (3) thereof the suit filed by
plaintiffs-respondents herein would fall within the mischief
of Section 4.
14. The critical question then is whether sub-section (3) of
Section 4 saves a transaction like the one with which we
are concerned. Sub-section (3) to Section 4 extracted 15
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above is in two distinct parts. The first part comprises
clause (a) to Section 4(3) which deals with acquisitions by
and in the name of a coparcener in a Hindu undivided
family for the benefit of such coparceners in the family.
There is no dispute that the said provision has no
application in the instant case nor was any reliance placed
upon the same by learned counsel for the plaintiffs-
respondents. What was invoked by Mr. Naveen R. Nath,
learned counsel appearing for the respondents was Section
4(3)(b) of the Act which too is in two parts viz. one that
deals with trustees and the beneficiaries thereof and the
other that deals with persons standing in a fiduciary
capacity and those towards whom he stands in such
capacity. It was argued by Mr. Nath that the circumstances
in which the purchase in question was made in the name of
the appellant assumes great importance while determining
whether the appellant in whose name the property was
acquired stood in a fiduciary capacity towards the plaintiffs-
respondents.
(15) The expression “fiduciary capacity” has not been
defined in the 1988 Act or any other Statute for that 16
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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.
(16) 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.”
17. Words and Phrases, Permanent Edition (Vol. 16-A p.
41) defines “Fiducial Relation” as under: 17
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“There is a technical distinction between a ‘fiducial relation’ which is more 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, a well as technical fiduciary relations.”
18. Black’s Law Dictionary (7th Edn. Page 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 relationships- such as trustee-beneficiary, guardian-ward, agent- principal, and attorney-client – require the highest duty of care. Fiduciary relationship 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 ha a duty to act for 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 clinet or a stockbroker and a customer.”
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19. Stroud’s Judicial Dictionary explains the expression
“fiduciary capacity” as under:
“Fiduciary Capacity – An administrator who had received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it “in a fiduciary capacity” within Debtors Act 1869 so, of the debt due from an executor who is indebted to his testator’s estate which he is able to pay but will not, so of moneys in the hands of a receiver, or agent, or Manager, or moneys due to an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or moneys which in the compromise of an action have been ordered to be held on certain trusts or partnership moneys received by a partner.”
20. Bouvier’s Law Dictionary defines “fiduciary
capacity” as under:
“What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation of society. Medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been held not a fiduciary one; a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made.”
21. We may at this stage refer to a recent decision of this
Court in Central Board of Secondary Education and
Anr. v. Adiya Bandopadhyay and Ors. (2011) 8 SCC
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497, where Ravindeeran, J. speaking for the Court in that
case explained the term ‘fiduciary’ and ‘fiduciary
relationship’ in the following words:
“39. The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.”
22. It is manifest that while the expression “fiduciary
capacity” may not be capable of a precise definition, it
implies a relationship that is analogous to the relationship
between a trustee and the beneficiaries of the trust. The
expression is in fact wider in its import for it extends to all
such situations as place the parties in positions that are
founded on confidence and trust on the one part and good
faith on the other.
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23. In determining whether a relationship is based on
trust or confidence, relevant to determining whether they
stand in a fiduciary capacity, the Court shall have to take
into consideration the factual context in which the question
arises for it is only in the factual backdrop that the
existence or otherwise of a fiduciary relationship can be
deduced in a given case. Having said that, let us turn to
the facts of the present case once more to determine
whether the appellant stood in a fiduciary capacity vis-à-vis
the plaintiffs-respondents.
24. The first and foremost of the circumstance relevant to
the question at hand is the fact that the property in
question was tenanted by Smt. Stella Martins-mother of the
parties before us. It is common ground that at the time of
her demise she had not left behind any Will nor is there any
other material to suggest that she intended that the
tenancy right held by her in the suit property should be
transferred to the appellant to the exclusion of her
husband, C.F. Martins or her daughters, respondents in this
appeal, or both. In the ordinary course, upon the demise of
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the tenant, the tenancy rights should have as a matter of
course devolved upon her legal heirs that would include the
husband of the deceased and her children (parties to this
appeal). Even so, the reason why the property was
transferred in the name of the appellant was the fact that
the Corporation desired such transfer to be made in the
name of one individual rather than several individuals who
may have succeeded to the tenancy rights. A specific
averment to that effect was made by plaintiffs-respondents
in para 7 of the plaint which was not disputed by the
appellant in the written statement filed by him. It is,
therefore, reasonable to assume that transfer of rights in
favour of the appellant was not because the others had
abandoned their rights but because the Corporation
required the transfer to be in favour of individual
presumably to avoid procedural complications in enforcing
rights and duties qua in property at a later stage. It is on
that touchstone equally reasonable to assume that the
other legal representatives of the deceased-tenant neither
gave up their tenancy rights in the property nor did they
give up the benefits that would flow to them as legal heirs
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of the deceased tenant consequent upon the decision of the
Corporation to sell the property to the occupants. That
conclusion gets strengthened by the fact that the parties
had made contributions towards the sale consideration paid
for the acquisition of the suit property which they would not
have done if the intention was to concede the property in
favour of the appellant. Superadded to the above is the fact
that the parties were closely related to each other which
too lends considerable support to the case of the plaintiffs
that the defendant-appellant held the tenancy rights and
the ostensible title to the suit property in a fiduciary
capacity vis-à-vis his siblings who had by reason of their
contribution and the contribution made by their father
continued to evince interest in the property and its
ownership. Reposing confidence and faith in the appellant
was in the facts and circumstances of the case not unusual
or unnatural especially when possession over the suit
property continued to be enjoyed by the plaintiffs who
would in law and on a parity of reasoning be deemed to be
holding the same for the benefit of the appellant as much
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as the appellant was holding the title to the property for the
benefit of the plaintiffs.
25. The cumulative effect of the above circumstances
when seen in the light of the substantial amount paid by
late Shri C.F. Martins, the father of the parties, thus puts
the appellant in a fiduciary capacity vis-à-vis the said four
persons. Such being the case the transaction is completely
saved from the mischief of Section 4 of the Act by reason of
the same falling under Sub-section 3(b) of Section 4. The
suit filed by the respondents was not, therefore, barred by
the Act as contended by the learned counsel for the
appellant. The view taken by the High Court to that effect
is affirmed though for slightly different reasons.
26. We may while parting say that we have not been
impressed by the contentions urged on behalf of the
appellant that the plea of a fiduciary relationship existing
between the parties and saving the suit from the mischief
of Section 4 of the Act, was not available to the
respondents, as the same had not been raised before the
Courts below. The question whether the suit was hit by
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Section 4 of the Act was argued before the High Court and
found against the appellant. The plea was not, therefore,
new nor did it spring a surprise upon the appellant,
especially when it was the appellant who was relying upon
Section 4 of the Act and the respondents were simply
defending the maintainability of their suit. That apart no
question of fact beyond what has been found by the High
Court was or is essential for answering the plea raised by
the appellant nor is there any failure of justice to call for
our interference at this stage.
27. In the result, this appeal fails and is hereby dismissed
but in the circumstances without any orders as to costs.
……………………..……………..…J. (T.S. THAKUR)
……………………………….………J. (GYAN SUDHA MISRA)
New Delhi April 27, 2012
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