Madhya Pradesh High Court
Manoharlal vs Smt. Gangabai on 18 February, 2019
...1... C.R.No.572/2018
HIGH COURT OF M.P. BENCH AT INDORE
C.R. No.572/2018
Indore dt.18.02.2019
Shri S.R. Kochatta, Advocate for the petitioner.
Shri V.K. Gangwal, Advocate for the respondent No.1.
None for the respondents No.2 to 5, though served. Heard.
2. The petitioner has filed the present revision under Section 115 of CPC against the interlocutory order dated 23.06.2018, passed by the 7th Civil Judge Class, II, Ratlam in Civil Suit No.68A/2018 whereby, the application filed under Order 7 Rule 11 of CPC has been rejected.
3. The facts of the case in short are as under :-
The respondent No.1 being a plaintiff filed a suit for declaration, partition, possession and permanent injunction against her own son and daughters. According to the plaintiffs, the land survey No.96/1 area 1.2 and land survey No.96/2 area 1.130 situated in village Usargar Tehsil and Distt. Ratlam was purchased by her husband Late Rameshchand Patidar, by his own uncle in the name of defendant No.1 who was aged about 2 - 3 years. She was made guardianship of defendant No.1 in ...2... C.R.No.572/2018 the said sale deed, but due to love and affection, the sale deed was executed in the name of defendant No.2, but the same is joint family property in which she is having 1/5 th share. The name of defendant No.1 has been mutated in the revenue record by virtue of the sale - deed dated 28.3.2012. According to the plaintiff she came to know about the said sale deed when she applied for mutation.
4. After the notice the defendant No.5 filed an application under Order 7 Rule 11 seeking dismissal of the plaint on the ground that the suit is barred and not maintainable under the provisions of (Prohibition) Act, 1988 and the suit is time barred also.
5. The plaintiff filed the reply to the said application and thereafter vide order dt.23.6.2018, the learned trial court has rejected the application by applying Section 4(3)(a) of Benami Transaction (Prohibition) Act, 1988. hence, the present revision before this court.
6. Shri Kochatta, learned counsel for the petitioner submitted that the plaintiff is alleging that the sale deed dated 6.11.1979 is a Benami transaction as the suit land was ...3... C.R.No.572/2018 purchased in the name of defendant No.2, but the payment was made by her husband. The defendant no.1 has sold the land to the present petitioner on 28.3.2012 and which was in the knowledge of the plaintiff therefore, the suit is time barred and the learned trial court has erred in rejecting the application. In support of his contention, he has placed reliance over the judgment passed by the Apex court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan reported as (1995) 2 SCC 630 , Anand Kumar v. Vijay Kumar, 2012 (III) MPWN 78, Sukhdeo Prasad v. Halkeram, 2000 (1) MPWN 104 and Jagdish Prasad Agrawal & Anr. v. Rajkumar s/o. Radheshyam Agrawal, 2006 (2) MPLJ 603.
7. Per contra, Shri Gangwal, learned counsel appearing for respondent No.1 submitted that the sale deed in favour of the defendant No.1 was executed in the year 1979, ie., much prior to the Benami Act came into the force w.e.f. 5 th September, 1988 therefore, the provisions of Section 3 and 4 will not apply, hence, the learned trial court has rightly rejected the application.
8. In support of his contention, he placed reliance over the ...4... C.R.No.572/2018 judgment of the Apex court in the case of Sankara Hali & Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka & Anr., (1996) 7 SCC 55 and prayed for dismissal of the revision.
9. That it is settled law that the application under Order 7 Rule 11 of CPC is liable to be decided on the basis of averments made in the plaint.
10. The plaintiff has pleaded that the sale deed dated 1979 is Benami transaction as the suit property was purchased by her husband in the name of defendant No.1 who was aged about two years at that time. The sale deed was executed much prior to the Benami Transaction Act came into force and at that point of time, there was no prohibition in respect of Benami Transaction.
11. Shri S. Kochatta, learned counsel for the petitioner placed reliance over the judgment of the Apex court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan (supra) in which the Apex court has held that the provisions of Section 4(1) Benami Transactions (Prohibition) Act, 1988 would not apply to the pending suit already filed and ...5... C.R.No.572/2018 entertained prior to coming into the force of section 4 of the Act of 1988.
12. But in the case in hand, issue under consideration is whether the suit filed in respect of the Benami Transaction took place prior to the coming into the force is maintainable or not. For the applicability of Section 3 of the Act, 1988 the Apex court has held that the provision is prospective in nature and would cover the only those offence, which takes place after Section 3(1) of the Act 1988, came into the force. In the present case, the suit is filed in the year 2017, challenging the transaction took prior to the coming to force the Benami Transaction Act. This specific issue came up for consideration before the Apex Court in the case of Sankara Hali & Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka & Anr. (supra) of the Apex court has held that the transaction entered into the prior to the coming into the force of the Act, 1988 between ostensible owner and the real owner is not voided by any provision whatsoever. Para 5 of the Sankara Hali & Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka & Anr.(supra) reads as under :- ...6... C.R.No.572/2018
"5. The Act prohibits entering into benami transactions and says that no person shall enter into any benami transaction and further provides that whoever enters into such a transaction, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Section 4 bars a suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is so held or against any other person by or on behalf of a person claiming to be the real owner of such property. Similarly, 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. Section 5 deals with the question of property held benami being liable to acquisition and Section 6 lays down that nothing in the Act shall affect the provisions of Section 53 of the Transfer of Property Act or any law relating to transactions for an illegal purpose. A reading of Section 4 of the Act shows that the real owner is precluded from claiming title to the property against the person holding the same benami either by way of assertion or defence. Under the Act any transaction entered into prior to the coming into force of the Act, between the ostensible owner and the real owner is not voided by any provision, whatsoever. If that be so, the execution of the release deed by Surender Kumar on 24-7-1964 (sic 24-12-1964) in favour of the firm had extinguished his title as an ostensible owner in favour of the firm, the real owner, which had paid the consideration to Amar Chand Gangwal, the original vendor. Section 41 of the Transfer of Property Act, in terms states that where with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, had acted in good faith. This provision is clearly intended to protect third party transferees who bona fide and after due care and caution purchase the ...7... C.R.No.572/2018 property from the ostensible owner taking him to be the real owner. It may next be noted that even if it is so assumed, we are of the opinion that in the instant case Surender Kumar having already released his right, title and interest as ostensible owner of the property in favour of the firm, the firm had acquired complete title over the property long before the Act came into force. Such a transaction which preceded the coming into force of the Act has not been voided by any specific provision in the Act. We are, therefore, of the opinion that the High Court was wrong in concluding that the title continued in Surender Kumar. We set aside that part of the High Court's finding and hold that the appellant was the owner of the property insofar as it related to the interest of Surender Kumar therein."
13. Hence, the suit filed by the plaintiff is maintainable. So far the issue of limitation is concerned, the plaintiff has specifically pleaded that she was not aware about the sale deed dated 23.3.2012 because no consent was taken from her and she came to know about this fact from the office of Deputy Registrar. She has also claimed that she is in possession and cultivating the land. Therefore, from the pleading in the plaint, the suit prima facie is within limitation. However, this is mixed question of fact and law and the same is liable to be decided only after the evidence. Hence, the revision is devoid of merit and is, accordingly, dismissed.
(VIVEK RUSIA) JUDGE Digitally signed by Shailesh Sukhdev Date: 2019.02.23 11:59:19 +05'30'