RAVEEDRAN NAIR v. THANKAM — 1999 DIGILAW 393 (MAD)

Judgment : K. SAMPATH, J. ( 1 ) THE plaintiff is O. S. No. 150 of 1982 on the file of the Additional district Munsif, Padmanabhapuram is the appellant in the Second Appeal. He filed the suit against his divorced wife the respondent herein for partition of the suit property being a house alleging that it was a joint purchase by the appellant and the respondent under sale deed dated 14. 11. 1974, that they were in joint possession of the same, that the entire consideration for the sale deed was paid only by him, that he restricted his claim to one half of the suit property, that the suit property not having been partitioned by metes and bounds the suit came to be filed. ( 2 ) THE respondent resisted the suit contending inter alia as follows: the suit property originally belonged to her parents who executed a sale deed in favour of the appellant and the respondent for the consideration of Rs. 5,000/-recited in the sale deed. Two promissory notes were executed jointly by the appellant and the respondent, one in favour of the sister of the respondent for Rs. 3. 000/-and the other in favour of the parents of the respondent for Rs. 2,000/-on 15. 11. 1974, that she paid the amount due under the pronotes and obtained registered receipts on 11. 12. 1980. She was in exclusive possession of the property. The appellant and the respondent jointly executed a divorce deed on 12. 5. 1979. Appellants name was included in the sale deed because of the relationship between the parties as husband and wife. The appellant was not in joint possession. The suit was not maintainable without a prayer for recovery of possession. ( 3 ) THE appellant filed an application stating that the cash consideration of five thousand rupees was paid only by the appellant, that he did not execute any promissory notes and that even if there were any promissory notes they were barred by limitation. ( 4 ) THE respondent filed an additional written statement to the following effect: at the time of marriage, on the demand of the appellant the respondents parents promised Sreedhanam to the respondent to the extent of Rs. 10. 000/-That remained unpaid. ( 4 ) THE respondent filed an additional written statement to the following effect: at the time of marriage, on the demand of the appellant the respondents parents promised Sreedhanam to the respondent to the extent of Rs. 10. 000/-That remained unpaid. The appellant was pressing for the same and finally it was settled that the parents of the respondent should execute a sale deed of the property in favour of the appellant and the respondent but both should pay Rs. 5,000/ -. The appellant agreed to advance the amount. The property would then worth Rs. 20,000/ -. The appellant was not able to raise the money and the registration was therefore delayed. It was agreed that the appellant and the respondent should execute two pronotes, one for Rs. 3,000/-and another for Rs. 2,000/ -. The sale deed was really a sreedhanam gift to the respondent by her par-ents, but the sale deed was written in the names of both, since the appellant promised to advance rs. 5,000/-agreed to be paid to the parents. The document was not supported by consideration. So far as the appellant was concerned, he had not acquired any right or possession under the document. When the pronote amount was demanded the appellant evaded and resiled from the promise. So the respondent had paid the amounts to her sister and mother and got release from them. She had thus become the full owner. The appellant was only a nominal vendee. It was not intended that he should have any benefit under it. In any event, he disowned and abandoned his rights if any. When the divorce deed was executed, it was specifically stated that there was no transaction between them because he had no right in the property. ( 5 ) THE appellant filed an additional application reiterating that he purchased the property with his own money, in his name and in the name of the respondent, that there was no promise of any Sreedhana, that no sreedhana was paid, that no pronote was executed by him as consideration for the sale deed, that the property was not worth Rs. 20,0007- at that time, that even if the pronote was true, no money need to be paid as it was barred by limitation, that he was not a nominal vendee, that he had got every right, that he had exercised all acts of ownership and not abandoned any rights, that the interpretation given to the divorce deed was not correct and that the suit was, therefore, maintainable. ( 6 ) THE learned District Munsif framed the necessary issues on the pleadings and held that the sale deed dated 14. 11. 1974 was a sreedhana gift as alleged by the respondent, that the appellant had not acquired any right under the sale deed, that the respondent had got exclusive right over the suit property, that the appellant was not in joint possession and that he was. not entitled to claim partition as the respondent had got exclusive right over the suit property. So holding by his judgment and decree dated 31. 3. 1983, the learned District munsif dismissed the suit. The appeal in a. S. No. 6 of 1984 filed by the appellant was dismissed by the learned subordinate Judge, padmanabhapuram on 16. 2. 1987. ( 7 ) AS against the said decision the present second Appeal has been |iled. At the time of admission, the following substantial questions of law were framed for decision in the Second appeal:" (1) Whether both the courts below are justified in holding that Ex. A1 is a sreedhana deed and not a sale deed? (2)-Whether the defendant is estopped from denying the title of the plaintiff derived from Ex. A3 filed in o. P. No. 24 of 1979? (3) Whether the decree and judgments of the courts below are not sustainable for the reasons stated in the grounds of appeal?" ( 8 ) MISS. O. K. Sridevi, learned counsel for the appellant submitted that the courts below were wrong in holding that the suit property was Sreedhana property given to the respondent by her parents and that the appellant did not claim any share in the said property. When the marriage had taken place in 1971, it was inconceivable that a Sreedhana document should come into existence three years thereafter. Even according to the respondent, she paid the sale consideration and the courts below were clearly in the wrong in holding that ex. A2 sale deed was a Sreedhana document. When the marriage had taken place in 1971, it was inconceivable that a Sreedhana document should come into existence three years thereafter. Even according to the respondent, she paid the sale consideration and the courts below were clearly in the wrong in holding that ex. A2 sale deed was a Sreedhana document. As regards the discharge of the promissory notes, the learned counsel submitted that those promissory notes Exs. B-12 and B-13 had been created by the respondent after the divorce decree. Even the sale deed clearly recited that the consideration had been paid at the time of registration of the document. The courts below also overlooked that the petition Ex. A3 filed in O. P. No. 24 of 1979 for divorce has specifically stated that the suit property belonged in shares to the appellant and the respondent. ( 9 ) MR. M. R. Raghavan, learned counsel for the respondent submitted that the appellant had not established that he contributed any amount as a consideration, that the respondent had discharged the promissory notes. Exs. B12 and B13 and it had been clearly established that the sale deed was a Sreedhana document. The learned counsel further sub-mitted that in the agreement between the par-ties, before applying for divorce, it had been clearly stated that there were no claims between the parties and this would clearly lend support to the case of the respondent that the property belonged in entirety to her. The learned counsel also submitted that the discharge of the promissory notes clearly showed that the appellant would have nothing to do with the suit property that he could not have contributed anything for the same. ( 10 ) THE lower appellate court had proceeded on the basis that the respondent had executed two promissory notes one for Rs. 3,000/-in favour of her sister and the other for Rs. 2,000/- in favour of her parents on 15. 11. 1974 and the sale deed itself was not presented for registration because neither the appellant nor the respondent had enough re-sources to purchase the property and it was agreed that the parties would execute promissory notes favouring respondents sister and her parents and this clearly showed that the respondent herself had discharged the promissory notes under receipts Exs. B16 dated 11. 12. 1980 and B17 dated 16. 12. B16 dated 11. 12. 1980 and B17 dated 16. 12. 1980 and therefore she was the owner of the property in exclusive possession and that the appellant had no right in the property. ( 11 ) THE learned Subordinate judge has also observed that the courts had ample powers to hold a gift deed as sale deed and the sale deed as Sreedhana deed, etc. , when evidence disclosed that. Admittedly, the appellant and the respondent were married in the year 1971. It was upto the respondent to show that there was any arrangement for payment of Rs. 10,0007-as Sreedhana at the time of marriage. May be the appellant had written to the respondent stating that certain promise with reference to the house had not been fulfilled. From the letter Ex. B8 the lower appellate court inferred that the sale deed was only a sreedhana document. In my view, the lower appellate Court has jumped to the conclusion without any basis. So far as Exs. B12 and B13 are concerned, it is claimed that they were discharged under Exs. B16 and Ex. B17 on 11. 12. 1980 and 16. 12. 1980. It is really surprising as to how promissory notes which had become time barred were discharged by the appellant. The promissory notes according to the respondent were executed on 15. 11. 1974 and that was the reason why the sale deed was not registered on the same day of execution namely, 14. 11. 1974. The delay accord-ing to the learned Subordinate Judge was be-cause the appellant and the respondent had no money for paying the sale consideration. It is possible that the sale deed was executed in the evening on 14. 11. 1974 and was presented for registration on the very next day. There was no delay in registering the document. It-should not be overlooked that the respondent had categorically asserted as DW 1 that she paid the entire sale consideration. It was not demonstrated as to how she found the money and the mode by which she made the payment. If really she had made the payment on 14. 11. 1974 or 15. 11. 1974, there was no reason why the promissory notes Exs. B12 and b13 came into existence. Assuming that the appellant did not pay any consideration for Ex. If really she had made the payment on 14. 11. 1974 or 15. 11. 1974, there was no reason why the promissory notes Exs. B12 and b13 came into existence. Assuming that the appellant did not pay any consideration for Ex. A2 sale deed, still the fact remains, the sale deed stands in the name of both the appellant and that, respondent and if as claimed by the respondent the sale price had not been paid and was taken in the shape of promissory notes by her sister and her parents, at the most what the vendors could claim was payment of the price for the sale deed and the right of the appellant to the suit property which had vested in him by reason of the sale could not be taken away by reason of the fact that he did not pay the sale price. Exs. B12 and B. 13 themselves appear to have been created for the purpose of showing that the respondent paid the money due under those promissory notes. In this connection, it would be significant to refer to Ex. B9 letter written by the appellant on 18. 1. 1975. In that letter, the appellant has stated that he would repay the amount due to the mother of the respondent even by selling the property, Ex. B6 is yet another letter writ-ten by the appellant on 18. 3. 1975 stating that he is debtor to the mother of the respondent. In Exs. BIO and B19, again the appellant referred to the debt due to the mother and the sister of the respondent. Perhaps these would show that the sale price was due to be paid by the appellant and the respondent to the respondents mother and sister. It would not mean that no consideration passed under Ex. A2 sale deed and that it was only a Sreedhana document executed under a different set of circumstances. We cannot ignore the fact that the sale deed clearly recited that the consideration had been paid. It is settled law that payment of the price is not necessarily as sine qua non to the completion of the sale. This follows from the words of Section 54 of the transfer OF PROPERTY ACT, 1882. We cannot ignore the fact that the sale deed clearly recited that the consideration had been paid. It is settled law that payment of the price is not necessarily as sine qua non to the completion of the sale. This follows from the words of Section 54 of the transfer OF PROPERTY ACT, 1882. If the price is not paid, the seller on that account cannot repudiate the sale and his only remedy is to sue for the price or the balance of the price unpaid. Even if consideration under the registered sale deed is not paid, still the purchaser gets title. Only remedy of the vendor is to claim consideration and of course he will have a right of lien over the property sold for the sale consideration or the balance of sale consideration as the case may be. On the execution and registration of the sale deed the title of the property passed on to the vendee and it will not be postponed till after the consideration is paid. In fact a vendee of immovable property under a registered deed of conveyance who has not paid the purchase money of the property can even maintain a suit for possession of the property without paying for it or submitting to a decree for payment on a condition attached to the decree as to the purchase money which he had agreed to pay. Consideration could have been in any shape. Perhaps the consideration in the instant case was given in the shape of exs. B12 and B13. Even then it would not mean that the appellant could not have any right in the suit property. The courts below clearly overlooked the specific mentioning in ex. A3 petition C. P. No. 24 of 1979 that the suit property belonged in equal shares to the appellant and the respondent, that was as late as 1979. In these circumstances, the lower appellate court was clearly in the wrong in holding that the suit sale deed was a Sreedhana document and that the appellant could not claim any right. ( 12 ) WHILE dealing with the specific mention in Ex. A3 petition about both the parties having equal right, the learned Subordinate judge has observed that as no consideration passed under Ex. A2, the mere mentioning of the house in Ex. ( 12 ) WHILE dealing with the specific mention in Ex. A3 petition about both the parties having equal right, the learned Subordinate judge has observed that as no consideration passed under Ex. A2, the mere mentioning of the house in Ex. A3 would not show that the appellant had an equal right in the building. ( 13 ) IF really the sale deed was a Sreedhana document, there was no reason why the appellant should be writing to the respondents mother that he would repay the amount due to her. Possibly the promissory notes had been taken by the respondents mother and her sister from both the appellant and the respondent and they represented the sale consideration under Ex. A2 sale deed. The learned Sub-ordinate Judge has adverted to the fact that exs. B16 and B17 receipts were in respect of promissory notes Exs. B12 and B13 alleged to have been executed in the year 1974 and exs. B16 and B17 executed more than three years after the dates of the promissory notes would be saved by the provisions of Section 25 of the Contract Act. ( 14 ) ONE thing which has been lost sight of by both the courts below is the fact that even by 1979, the appellant had claimed rights in the suit property and in the petition for divorce there is specific reference to the equal right the parties had in the property. Apparently, to get over this and to show that the entire money had been paid by the respondent Exs. B16 and B17 should have come into existence. Even conceding that the respondent paid the money due under the promissory notes, still it would not take away the right of the appellant to a half share in the suit property. The decision reached by the courts be-low cannot therefore be sustained. The respondent had no consistent case. The sreedhana concept was not mentioned in the forefront and what she claimed originally was over for the sale price. She and the appellant had executed promissory notes. However, by an additional written statement, she got in the plea that the sale deed was a Sreedhana gift to her by her parents. The courts below have misapplied the law, have misread the pleadings and the oral and documentary evidence. They were not justified in holding that Ex. She and the appellant had executed promissory notes. However, by an additional written statement, she got in the plea that the sale deed was a Sreedhana gift to her by her parents. The courts below have misapplied the law, have misread the pleadings and the oral and documentary evidence. They were not justified in holding that Ex. A2 sale deed was a Sreedhana deed and not a sale deed. They ought to have found that the respondent was estopped from denying the title of the appellant as disclosed in Ex. A3 filed in o. P. No. 24 of 1979. ( 15 ) FOR all the reasons stated above, the judgments and decrees of the courts below cannot stand. They are set aside and the Second appeal will stand allowed. There will be preliminary decree for partition in O. S. No. 150 of 1982 on the file of the District Munsif, padmanabhapuram. However, there will be no order as to costs. Appeal allowed.