Case: Pawan Kumar Vs. Rochiram

the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad the transferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it. 23. In this context reference to Sections 91 and 92 of the Evidence Act will be useful. As per the former, in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such matter except the document itself. Section 92 forbids admission of any evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of such document. One of the exceptions to the said rule is that any fact which would invalidate the instrument can be proved by adducing other evidence. 24. In this case, Ext. P.11 is the document by which transfer of ownership from Narain Prasad was effected. When any party proposes to show something which is at variance with the terms of Ext. P.11 the burden of proof is on him. When respondent asserted that the real transaction is not what is apparently mentioned in Ext. P.11 the burden is on the respondent to establish the transaction which he asserts to be the real one. 25. We do understand that respondent made a bid to discharge his burden by examining Pyarelal (father of the appellant) and Narain Prasad (the executant of Ext. P.11) as witnesses for the defendant. But it was a risky course of action which he undertook and the risk proved to be costly for him as both witnesses stood by the apparent terms of Ext. P.11 regarding consideration. In other words, both witnesses of the respondent stuck to the version that consideration for the sale was paid by the appellant. 26. It is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying the property. 27. Section 3(1) of the Benami Act contains the interdict that no person shall enter into any benami transaction. The aforesaid prohibition has been judicially pronounced as prospective only, (vide R. Rajagopal Reddy v. Padmini Chandrasekharan, 1995(2) SCC 630, As the Benami Act was passed on 5.9.1988 it would apply to Ext. P.11 which was executed subsequently. A contention was bolstered up in the High Court on behalf of the tenant that since the sale consideration was provided by Pyarelal the sale deed would be a benami transaction. 28. 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 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 transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of 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 ? 29. 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 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.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.31. Shri S.S. Khanduja, learned counsel for the respondent lastly pleaded that if ultimately the appellant is found to be the transferee under the Ext. P.11 sale deed the case may be remitted to the High Court for considering the question whether appellants claim for eviction on the ground that he needs the building for his own use is bona fide. Shri G.L. Sanghi, learned Senior Counsel pointed out that there is concurrent finding by two courts on that aspect. We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. Though the word "dismissed" has been employed in the last paragraph of the judgment a reading of it, as a whole, would show that the plaintiff had won the suit. The court found against the plea of the defendant that plaintiff was not the rightful owner of the building. Dismissal of the suit was not on account of any defect in the plaintiffs claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff from the defendant has been deposited by the defendant in the court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully.15. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibit the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on the issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contestedclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad theIt is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying thecorrect 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 transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of 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.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 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.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court.Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.19. In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OSthat appellant was the real owner of the building as per Ext. P.11 sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it.20. We, therefore, agree with the plea of the appellant that there is bar of res judicata inon the issue regarding appellants title to the building.All the above three premise adverted to be the High Court are unsupportable. Theclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad thetransferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it.