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2006 DIGILAW 357 (MP)

Gomti Bai v. Deokinandan Jain

2006-03-08

S.L.JAIN

body2006
ORDER 1. Being aggrieved by the order dated 9.3.2005 passed by the 10th ADJ, Jabalpur in C.S. No. 64-N/04 the petitioners/defendants No.1, 2 and 5 filed this revision under section 115 of the Code of Civil Procedure (henceforth the 'Code'). 2. The facts which led to filing of this revision in nutshell are that the plaintiff/respondent filed a suit against the petitioners/defendants stating that he is the owner of House No. 387/288 (new Nos. 42, 43 and 44) situated at Lordganj, Jabalpur. His maternal grand mother, namely, Smt. Rani Bahu purchased the aforesaid house in the name of her grand son Dhannalal Jain who is real elder brother of plaintiff, by a registered sale deed dated 7.11.1915. At the time of purchase of the house, the age of Dhannalal was only 10 months. The entire consideration was paid by Smt. Rani Bahu. Thus, Smt. Rani Bahu was the sole and real owner of the house. The sale deed in favour of Dhannalal was nominal. Rani Bahu continued to remain in possession of the suit property as owner till her death in the year 1959. Husband of Rani Bahu at the time of his death had permitted her to adopt a son, therefore, Rani Bahu adopted plaintiff as her son on 6.10.1938. In consequence whereof, after the death of Rani Bahu the plaintiff became the sole owner of the house in question. 3. The plaintiff/respondent also pleaded that the entire suit house was demolished and constructed a new by the plaintiff in the year 1973 at his own cost by spending Rs. 50,000/-. After reconstruction tenants were inducted in the suit house by the plaintiff alone. Defendants No.1 and 2 and Dhannalal are none but the sister-in-law, nephew and brother respectively of the plaintiff. As they were homeless they were permitted by the plaintiff to occupy a portion of the said house. The plaintiff also averred that in the year 1983 he asked defendants to vacate the house whereupon defendants No.3 and 4 shifted elsewhere. Defendant No.3 shifted to Korba and defendant No.4 to Napier Town, Jabalpur. Defendants No. 1 and 2 promised to vacate the house as soon as they get accommodation elsewhere. 4. The plaintiff pleaded that at present the ground floor and the first floor of the suit house are in occupation of the tenants and second and third floor are in occupation of defendants No.1 and 2. Defendants No. 1 and 2 promised to vacate the house as soon as they get accommodation elsewhere. 4. The plaintiff pleaded that at present the ground floor and the first floor of the suit house are in occupation of the tenants and second and third floor are in occupation of defendants No.1 and 2. Few months before filing of the suit plaintiff requested defendants No.1 and 2 to vacate the house and place the plaintiff in physical possession thereof. In June 2003 plaintiff learnt that defendants No.1 and 2 are negotiating for the sale of the suit house, therefore, he got published a notice in daily Hindi newspaper Dainik Bhaskar on 3.7.2003 informing the public in general that he is the real owner of the suit property and defendants No.1 and 2 are in permissive possession only. Registered notice was also served on defendants No.1 and 2. Defendants No. 1 and 2 in collusion with other tenants sent their reply denying the plaintiff's title over the suit house, therefore, plaintiff has filed this suit. 5. The defendants No.1, 2 and 5 filed an application under Order 7 Rule 11 of the Code for rejecting the plaint stating that as per plaint averment itself, Rani Bahu purchased the suit property in the name of Dhannalal, father of defendants No.2 and 5 and husband of defendant No.1, therefore, in view of section 4 of the Benami Transaction (Prohibition) Act (henceforth the 'Act'), the suit is barred. As the suit appears from the statement in the plaint to be barred by law, the same should be rejected. In the application, defendants No.1, 2 and 5 also stated that the suit is undervalued and proper court-fee has not be paid and on this ground also the plaint is liable to be rejected. 6. The application was opposed by the plaintiff. 7. By the impugned order the trial Court dismissed the application and recorded a finding that the provisions of the Act do not apply to the present suit. From the plaint allegations the transaction of purchase of the house by Rani Bahu in the name of Dhannalal is not a Benami Tranaction. 6. The application was opposed by the plaintiff. 7. By the impugned order the trial Court dismissed the application and recorded a finding that the provisions of the Act do not apply to the present suit. From the plaint allegations the transaction of purchase of the house by Rani Bahu in the name of Dhannalal is not a Benami Tranaction. Regarding the valuation, the trial Court found that the Court did not require the plaintiff to value the claim in particular manner and supply the court-fee, therefore, the plaint cannot be rejected under clause (b) and (c) of Rule 11 of Order 7 of the Code. 8. I have heard Shri Atul Awasthy, learned counsel appearing for the petitioners and Shri Ravish Agarwal, learned senior counsel with Shri Prannay Verma for the respondent and perused the order of the trial Court. 9. Learned counsel for applicants submitted that from the statements of plaint itself it is clear that the transaction which took place on 7.11.15 was a Benami transaction. Admittedly the property was purchased by Rani Bahu in the name of Dhanna1al. The property was transferred to Dhannalal for a consideration paid or provided by Rani Bahu. The counsel submitted that the act is a piece of prohibitory legislation and it prohibits Benami transaction subject to stated exceptions and prohibits a suit to enforce any right in respect of property held Benami against the person in whose name property is held or against the persons who stand in his shoes. 10. The counsel for the applicants also submitted that from the plaint allegation itself the suit appears to be barred by the Act. The suit was also not properly valued. Therefore, the trial Cout ought to have allowed the application under Order 7 Rule 11 of the Code and should have rejected the plaint at the threshold. 11. On the other hand, learned senior counsel, appearing for the respondents supported the order impugned. The contention raised by him can be catalogued thus: (i) That the plaint was not liable to be rejected on the ground of valuation or payment of court-fees because under Clauses (b) and (c) of Rule 11 of Order 7 of the Code the plaint cannot be rejected unless the Court requires the plaintiff to supply the requisite stamp papers within the time to be fixed by the Court and the plaintiff fails to do so. In the present case, the trial Court did not find that the suit is under valued nor it required the plaintiff to supply the requisite stamp papers, nor it was found that the plaint was written upon insufficiently stamp papers. Therefore, the plaint could not have been rejected on this ground. (ii) The suit is not based only on the ground that Rani Bahu was the real owner of the property purchased in the name of Dhannalal. The plaintiff has also claimed the rights on the ground of estoppel by conduct. The plaintiff has specifically stated in the plaint that he, in a bona fide belief that the properly belongs to him spent money upon it and Dhannalal and his successors stood by and allowed him to spend money and make improvements upon their house. They are estopped from asserting their title to the suit property as against the plaintiff who made improvements in such bona fide belief. The plaintiff has also pleaded that the possession of Dhannalal and his successors was permissive. Even if the transaction of the year 1915 is found to be Benami the plaint cannot be rejected in part. Under Rule 11 of Order 7 of the Code the plaint as a whole only can be rejected. 11 A. So far as the question of rejection of plaint on the ground of under valuation of the relief and insufficiency of the stamp papers is concerned, the clauses (b) and (c) apply only when within the time to be fixed by the Court the plaintiff fails to properly value the claim or to supply the requisite stamp papers. In the present case, there was no direction of the Court to value a particular relief in particular manner or to supply the stamp papers. Therefore, none of these two clauses apply to the present case and the trial Court committed no error in not rejecting the plaint on the grounds stated in clauses (b) and (c) Rule 11 of Order 7 of the Code. 11 B. This brings us to the question as to whether the suit appears from the statements made in the plaint to be barred by any law? 12. Learned counsel for the petitioners vehemently submitted that as per the plaint allegations itself the property in suit was purchased by Rani Bahu in the name of Dhannalal. 11 B. This brings us to the question as to whether the suit appears from the statements made in the plaint to be barred by any law? 12. Learned counsel for the petitioners vehemently submitted that as per the plaint allegations itself the property in suit was purchased by Rani Bahu in the name of Dhannalal. Dhannalal, at the time of transaction was only of ten months of age. It has been averred in the plaint itself that the sale deed in favour of Dhannalal was nominal. It is not the case of the plaintiff that the consideration was provided by some person other than Rani Bahu on behalf of Dhannalal. 13. In this regard, learned senior counsel appearing for the respondents submitted that Rani Bahu acted in fiduciary capacity and section 4 of the Act is not attracted. In support of his contention, learned senior counsel relied on P.V. Sankara Kurup v. Leelavathy Nambiar [ (1994) 6 SCC 68 ] and Subhash Chandra Gupta v. Gyanchand and others [ 1994 JLJ 262 ]. Learned senior counsel also submitted that if the plea or defence based on Benami is raised and the purchase is in the name of son, such a plea is permissible. In support of this contention, learned counsel relied on Smt. Rebti Devi v. Ram Dutt and another [AIR 1998 SC 31 OJ. 14. In answer to the submissions raised by the learned counsel for the respondent, Shri Awasthy, learned counsel for the applicants submitted that exception given in section 3 of the Act is with regard to the wife or unmarried daughter and the same does not apply to the son and, therefore, the judgment in Smt. Rebti Devi (supra) does not apply to the present case. Shri Awasthy also submitted that there is no allegation in the plaint that Rani Bahu acted in a fiduciary capacity and purchased the property in her own name. The property was purchased in the name of Dhannalal. Therefore, the case of P. V. Sankara Kurup (supra) also does not apply to the present case. The counsel also submitted that it is not a case of nominal sale, where transferor continued to be real owner. Therefore, the judgment in Subhash Chandra Gupta (supra) also does not apply to the present case. 15. Therefore, the case of P. V. Sankara Kurup (supra) also does not apply to the present case. The counsel also submitted that it is not a case of nominal sale, where transferor continued to be real owner. Therefore, the judgment in Subhash Chandra Gupta (supra) also does not apply to the present case. 15. 1 do not consider it appropriate at this stage to decide the question as to whether from the statement in the plaint the suit is barred under the Act because the present suit is not based only on the plea of Benami transaction but also on the ground of estoppel by conduct. Plaintiff has raised a plea in paragraph 2 of his plaint that the entire suit house was constructed anew by him in the year 1973 at his own costs amounting to about Rs.50,000/-. Defendants No.1, 2 and Dhannalal on their request were permitted to occupy portion of the house. Thus, it is also a plea of the plaintiff that he, undera bona fide belief that the suit property belongs to him, spent money upon it and at that time Dhannalal and applicants stood by and allowed the plaintiff to spend money and construct the house anew. They are estopped from asserting their title to the house as against the respondent who reconstructed the house in a bona fide belief that he is the owner. 16. As the plaintiff has pleaded all the essentials of acquiescence, at this stage it will no be appropriate to reject the plaint only on the ground of Benami transaction. The plea of acquiescence is to be considered and decided by the trial Court. The plaint cannot be rejected only in part as has been held in Popat and Kotecha Property v. State Bank of India Staff Association [ 2006 (I) MPWN 10 = (2005) 7 SCC 510 ] and Roop Lal Sathi v. Nachhattar Singh Gill [ (1982) 3 SCC 487 ]. Since the plea regarding Benami transaction alone is not involved in the case and the plea regarding acquiescence is also to be decided by the trial Court, it will not be appropriate to make any observation as to the contention that the suit is barred under the Act as per the statements made in the plaint itself. Since the plea regarding Benami transaction alone is not involved in the case and the plea regarding acquiescence is also to be decided by the trial Court, it will not be appropriate to make any observation as to the contention that the suit is barred under the Act as per the statements made in the plaint itself. Any observation by this Court in this regard may cause prejudice to the parties before the trial Court and I am, therefore, of the opinion that on the basis of the contention that the order of the Court-below suffered from infirmity it will not be appropriate to warrant interference and reject the plaint at this stage. 17. Before parting with the order, I wish to add that the rule regarding standing by whether applies to the present case or not or the suit is barred under the Act or not are the matter to be decided by the trial Court and any observation in this order will not cause any prejudice to the parties and will not bind the trial Court. 18. As a result of aforesaid discussion, the plaint as filed cannot be rejected under Order 7 Rule 11 of the Code at this stage either as a whole or in part. I do not find any merit in the revision and the same is, therefore, dismissed.