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2008 DIGILAW 1355 (MP)

Kanaklata Bai v. Parvati Bai

2008-11-20

S.K.SETH

body2008
JUDGMENT 1. This is defendant's second appeal against the concurrent judgment and decree passed by the II Additional Judge to the Court of District Judge, Shajapur in Regular Civil Appeal No. 16-A96 whereby the appeal preferred by the appellant against the judgment and decree passed by the trial Court was dismissed and the findings recorded by the trial Court were affirmed. 2. The appeal was admitted for final hearing and the following substantial questions of law were formulated: (1) Whether in the facts and circumstances of the case it is permissible in law to hold the sale-deed (Exh. D-3) as void merely on the ground that part of the agreed consideration had remained unpaid? (2) Whether in the facts and circumstances of the case it is permissible in law to grant decree for declaration and perpetual injunction in the face of the sale-deed (Exh. D-3)? (3) Whether the conclusion about non-delivery of possession is vitiated on account of conflict with direct evidence and on misreading of the evidence on record? 3. The relevant facts necessary for the disposal of the appeal are as under. Respondent No.1 Parvatibai is the Bhumiswami of agricultural holding bearing survey Nos. 1898/2 and 1898/3 situated in Village Susner which is in dispute. Respondent No.1 filed a suit for declaration of title and permanent injunction on the allegation that she had entered into an agreement of sale on 29.7.1985 in favour of the appellant for a sum of Rs. 9,000/-. She had received a sum of Rs. 1,000/- on the date of execution of the agreement and the balance amount was to be paid on or before 6.11.1985. The further case of the plaintiff was that despite the demand notice, the balance amount of Rs. 8,000/- was not paid by the appellant, therefore, the contract of the sale was fallen through and the respondent No.1 continued to remain Bhumiswami of the suit land, therefore, she prayed for the relief of declaration and permanent injunction not to interfere with her possession over the land in dispute. 4. The plaint allegations were traversed by the appellant and it was stated that the so called agreement of sale deed 29.7.1985 was, in fact, an outright sale in favour of the appellant which was executed by the respondent No.1 after receiving the part of consideration. 4. The plaint allegations were traversed by the appellant and it was stated that the so called agreement of sale deed 29.7.1985 was, in fact, an outright sale in favour of the appellant which was executed by the respondent No.1 after receiving the part of consideration. The document was also duly registered same day and possession of the part of the suit land was delivered to the appellant. According to the appellant, by virtue of the sale deed in her favour, she became the absolute owner of the suit property and, therefore, no declaration or injunction could be given in favour of the respondent No.1. With these pleadings, parties went to the trial and adduced evidence. Learned Trial Judge on consideration of the evidence decreed the suit holding that the so called sale deed was void for want of full payment of consideration and the respondent No. 1 continued to remain Bhumiswami of the suit land. The judgment and decree passed by the trial Court were affirmed by the impugned judgment, hence this appeal as is stated hereinabove. 5. The point for consideration in this appeal is whether the document (Exh. D-3) was a sale and if so could a decree for declaration be granted by the trial Court in favour of the respondents. 6. After having heard learned counsel for the parties at length and going through the records of the Courts below, we find that the impugned judgment and decree passed by the Lower Appellate Court as well as by the trial Court is not sustainable in law in view of the following discussion. The sale of immoveable property has been defined in section 54 of the Transfer of Property Act. A bare perusal of the section would reveal that the essential elements of sale are: (1) parties, (2) subject-matter, (3) transfer or conveyance, and (4) price or consideration. In the case in hand, we are concerned with the last element. The payment of price is not necessarily a sine qua non to the completion of the sale. If the intention is that the property should pass on registration, the sale is complete as soon as deed is registered whether the sale price has been paid or not. In the case in hand, we are concerned with the last element. The payment of price is not necessarily a sine qua non to the completion of the sale. If the intention is that the property should pass on registration, the sale is complete as soon as deed is registered whether the sale price has been paid or not. This is clear from the words of the section "price paid or promised or part paid or part promised", therefore, a condition that the balance amount shall be paid on a future date, as in the present case, would not invalidate the sale deed as part of the possession was delivered to the purchaser. This has been clearly held by a Division Bench of this Court in the case of Sukaloo and another v. Punau, reported in AIR 1961 MP 176 , which has been approved by Their Lordships of the Supreme Court in the case of Vidhyadhar v.Mankikrao and another, reported in AIR 1999 SC 1441 . Thus, in view of the above legal position, I am of the considered view that the Courts below were wrong in holding that the sale was incomplete for want of payment of balance consideration so as to defeat the claim of the defendant. In view of the aforesaid, I need not to go into the question what are the rights of a seller when a sale is complete though full consideration is not paid. 7. Thus, in view of the foregoing discussion, I hold that the findings recorded by the Courts below are legally unsustainable and deserve to be set aside. Accordingly, in view of the foregoing discussion, this appeal is allowed. The judgment and decree passed by the Courts below are hereby set aside and the suit filed by the respondent is dismissed with cost throughout. Counsel fee Rs. 1,000/-, if certified.