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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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