Madhya Pradesh High Court
Smt. Asha Yadav vs Somendra Pratap Singh Tomar on 2 March, 2020
Equivalent citations: AIRONLINE 2020 MP 802
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
CR No.76/2020
Smt. Asha Yadav Vs. Somendra Pratap Singh and others
Gwalior, Dated :02/03/2020
Shri V.K. Bhardwaj, Senior Advocate, with Shri Kartik
Sharma, Advocate for petitioner.
This revision under Section 115 of CPC has been filed against
the order dated 7/1/2020 passed by 17 th Additional District Judge,
Gwalior in Civil Suit No.4B/2014, by which the application filed by
the petitioner under Order XIV Rule 2 read with Order VII Rule 11
CPC has been dismissed.
The necessary facts for disposal of the present revision in short
are that the respondents have filed a suit for refund of the advance
amount paid to the petitioner at the time of execution of the agreement to sale. By referring to paragraph 2 of the plaint, it is submitted by the counsel for the petitioner that it is specifically mentioned by the respondent no.1 that the advance amount was paid by the respondent no.1 after taking money from his father Govind Singh Tomar (who has expired during the pendency of the suit and the respondents no.2 (a) and (b) are his legal representatives). It is submitted that since the money was provided by the father of the respondent no.1, therefore, the suit is barred in the light of the provisions of Section 3 and 4 of the Prohibition of Benami Transactions (Prohibition) Act, 1988. Accordingly, it is submitted that the trial court committed material illegality by not entertaining the Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 16:51:42 2 THE HIGH COURT OF MADHYA PRADESH CR No.76/2020 Smt. Asha Yadav Vs. Somendra Pratap Singh and others application filed by the applicant under Order VII Rule 11 CPC. It is further submitted that the money is also a property and to buttress his contentions, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of R. Rajagopal Reddy (dead) by L.Rs. and others Vs. Padmini Chandrasekharan (dead) by L.Rs. reported in AIR 1996 SC 238, judgment passed by this Court in the case of Anand Kumar v. Vijay Kumar reported in 2012 (III) MPWN 78 as well as the judgment passed by the Rajasthan High Court and Madras High Court in the case of Chhutanlal v. State reported in AIR 1968 Rajasthan 70 and in the case of Yoosuf Maulvi v. Official Assignee and another reported in AIR 1959 Madras 484.
Heard learned counsel for the petitioner.
From para 2 of the plaint, it is clear that the respondents/plaintiffs have merely mentioned that the money was provided by the father of the respondent no.1, i.e. Late Govind Singh Tomar. It is nowhere mentioned by the plaintiffs that Govind Singh Tomar had entered into an agreement to purchase the property in the name of plaintiff no.1. Under these circumstances, at the most it can be said that Late Govind Singh Tomar had provided the money to respondent no.1 for entering into an agreement to sell. The Supreme Court in the case of Pawan Kumar Gupta Vs. Rochiram Nagdeo Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 16:51:42 3 THE HIGH COURT OF MADHYA PRADESH CR No.76/2020 Smt. Asha Yadav Vs. Somendra Pratap Singh and others reported in (1999) 4 SCC 243 has held as under:-
"29. Section 2(a) of the Benami Act defines benami transaction as "any transaction in which property is transferred to one person for a consideration paid or provided by another person".
The word "provided" in the said clause cannot be construed in relation to the source or sources from which the real transferee made up the funds for buying the sale consideration. The words "paid or provided" are disjunctively employed in the clause and each has to be tagged with the word "consideration". The correct interpretation would be to read it as "consideration paid or consideration provided". If consideration was paid to the transferor then the word provided has no application as for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transaction ready payment of consideration might not have been effected and then the provision would be made for such consideration. The word "provided" in Section 2(a) of the Benami Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money. Could it be said that since the money was provided by the bank it was a benami transaction?
30. We are, therefore, not inclined to accept the narrow construction of the word "provided" in Section 2(a) of the Benami Act. So even if the appellant had availed himself of the help rendered by his father Pyarelal for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act."
In the present case also the pleadings of the respondents is that the money was provided by the father. Thus, it is held that merely because the respondent no.1 had taken financial help from his father Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 16:51:42 4 THE HIGH COURT OF MADHYA PRADESH CR No.76/2020 Smt. Asha Yadav Vs. Somendra Pratap Singh and others for making the sale consideration, it would not make the agreement to sell a Benami transaction, so as to push it into the forbidden area of the provisions envisaged under Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. Under these circumstances, this Court is of the considered opinion that the trial court did not commit any mistake by rejecting the application filed under Order VII Rule 11 CPC.
Ex consequenti, the order dated 7/1/2020 passed by 17 th Additional District Judge, Gwalior in Civil Suit No.4B/2014 is hereby affirmed.
The petition fails and is hereby dismissed.
(G.S. Ahluwalia)
Arun* Judge
Digitally signed by ARUN KUMAR
MISHRA
Date: 04/03/2020 16:51:42