1999 Supreme(SC) 534

1999(4) Supreme 249
Supreme Court of India
(From Madhya Pradesh High Court)
K.T. Thomas & D.P. Mohapatra, JJ.
Pawan Kumar Gupta -Appellant
versus
Rochiram Nagdeo -Respondent
Civil Appeal No. 2369 of 1999
(Arising out of SLP (C) No. 6567 of 1998)
Decided on 20-4-1999
Counsel for the Parties :
For the Appellant : G.L. Sanghi, Sr. Advocate and S.K. Gambhir, Advo­cate.
For the Respondent : S.S. Khanduja and B.K. Satija, Advocates.

Important Points
1. 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.
2. The party who wants to prove that the recitals in a registered document are untrue must bear the burden to prove it.
3. The words “paid or provided” in Section 2(a) of the Benami Transac­tion (Prohibition) Act are disjunctively employed and each has to be tagged with the word consideration; the correct interpretation would be read it as `consideration paid or provided and as such if a trans­free availed himself of any help rendered by another person that would not make the sale deed a benami transaction within meaning of Section 3(1).

Headnote:(i) M.P. Accommodation Control Act, 1961-Section 12(1)(f)-Bona fide requirement for own use -Concurrent findings of lower Courts that requirement of landlord bona fide-High Court dismissing suit on legal question that property in question was purchased by father of plain­tiff in plaintiff’s name and transaction hit by Benami Transaction Prohibition Act-Legal issue decided by High Court, on facts, found to be unsustainable-Whether case needed to be remitted to High Court for considering question of bona fide requirement-Held : No, in view of concurrent findings of lower Courts and questions of law formulated by High Court did not pertain to finding regarding bona fides of land­lord.

       (ii) Code of Civil Procedure 1908-Section 11-Res judicata-Suit for eviction on ground of non-payment of rent filed-Suit resited on ground that plaintiff was bona fides of property and suit not maintainable-Finding by Court that plaintiff was owner-Suit dismissed on plaintiff depositing arrears of eviction on ground of bona fide contesting-Defendant again raising issue of benami-Whether plea barred by principles of res judicata-Held, yes.

       Held : The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which “has been directly and substantially in issue 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 an 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 contested issues. (Para 14)

       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 is 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. (Para 17)

       In the instant case, 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 plaintiff’s 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. 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 OS 75-A/90 that 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. Therefore, there is a bar of res judicata in the re-agitating on the issue regarding appellants title to the building. (Paras 13 & 18)

       (iii) Benami Transaction (Prohi­bition) Act, 1988 - Section 3-Evidence Act Sections 160 r/w Sections 91 and 22-Benami-Burden of proof-Party who wants to prove that the transaction was benami. (Para 20 & 21)

       (iv) Benami Transaction Act (Prohibition) Act, 1988-Sections 2(a) and 3-Word provided in clause (a) to Section 2-Cons­truction of-Word ‘Provided’ in clause (a) cannot be construed in relation to source or sources from which real transfree made up funds for buying sale con­sideration-Word ‘paid or provided’ are disjunctively employed in Section 2(a) each has to be tagged with word ‘consideration’-Appellant had availed himself of the help rendered by his father for making up sale consideration-That would not make sale deed a benami transaction so as to push it into forbidden area envis­aged in Section 3(1).

       Held : 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 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 qustion of providing the consideration would arise. In some cases of sale transaction 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? (Para 27)

       In the instant case, 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. 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 saledeed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act. (Paras 25 & 28)