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2018 DIGILAW 722 (CHH)

Baikunth Singh v. Bir Singh

2018-11-16

SANJAY K.AGRAWAL

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JUDGMENT : Sanjay K. Agrawal, J. 1. The substantial questions of law involved, formulated and to be answered in the plaintiff's second appeal are as under:- "1. Whether, the appellate Court failed to appreciate the evidence in correct perspective to reverse the finding of the trial Court?" "2. Whether, the sale deed Ex. D-1 was void for want of consideration?" [For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]. 2. Plaintiff-Baikunth Singh filed a suit stating inter-alia that sale deed dated 6.6.80 executed by Sudhiya Bai in favour of defendants No. 1 and 2 is not binding on him and it be declared null & void and he is entitled for possession from defendants No. 1 and 2 on the ground that sale deed was executed by Sudhiya Bai without legal necessity and consideration has also not been paid to her and she had no need of said money at the time when sale deed was allegedly executed by Sudhiya Bai in favour of defendants No. 1 and 2. 3. Defendants No. 1 and 2 filed their written statement and opposed the plaint allegations stating inter-alia that title has legally and validly been passed in favour of defendants No. 1 and 2, as such, the suit deserves to be dismissed with costs. 4. The trial Court after appreciating oral and documentary evidence available on record, by the judgment and decree dated 20.2.84 decreed the suit holding that after death of Sudhiya Bai the plaintiff has succeeded the right, title in her property, but he has no right title over her property during life time of Sudhiya Bai and further held that the plaintiff is entitled for decree of possession. 5. On first appeal filed by defendants No. 1 and 2, the First Appellate Court allowed the first appeal and reversed the judgment and decree passed by the trial Court and dismissed the suit. 6. Questioning legality and validity of the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the CPC has been filed by the plaintiff, in which substantial questions of law have been framed by this Court, which have been set-out in opening paragraph of this judgment. 7. Mr. 6. Questioning legality and validity of the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the CPC has been filed by the plaintiff, in which substantial questions of law have been framed by this Court, which have been set-out in opening paragraph of this judgment. 7. Mr. Vijay Kumar Mishra, learned counsel for the appellant/plaintiff, would submit that the First Appellate Court is absolutely unjustified in setting aside the well merited judgment of the trial Court granting decree, as no consideration was paid to Sudhiya Bai for alleged sale deed executed in favour of defendants No. 1 and 2, therefore, no title has been transferred to the defendants. He relied upon the judgment of the Madhya Pradesh in the matter of Parmanand Vs. Dadanlal 1998 (I) MPWN 146 and also relied upon the judgment of the Supreme Court in the matter of Suhrid Singh @ Sardool Singh Vs. Randhir Sinth & Ors., AIR 2010 SC 2807 would submit that the plaintiff being not party to the sale deed was not required to seek cancellation of sale deed dated 6.6.80 executed by Sudhiya Bai in favour of defendants No. 1 and 2, therefore, the impugned judgment and decree passed by the First Appellate Court be set aside and that of the trial Court be restored. He would also submit that since consideration was not paid in favour of Sudhiya Bai, therefore, the trial Court has rightly held that the plaintiff is entitled for decree of possession in his favour. 8. On the other hand, Mr. Pallav Mishra, learned counsel for respondents No. 1 and 2/defendants No. 1 and 2, would submit that the plaintiff is stranger to the sale deed dated 6.6.80 executed by Sudhiya Bai in their favour, therefore, the plaintiff was not competent to question legality and validity of sale deed. The plaintiff being stranger to sale deed cannot dispute the payment of consideration or inadequacy of consideration. He would rely upon the judgment of the Supreme Court in the matter of Vidhyadhar Vs. Manikrao and another (1999) 3 SCC 573 and Muddasani Venkata Narsaiah (dead) Through legal Representatives Vs. Muddasani Sarojana (2016) 12 SCC 288 . 9. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. Manikrao and another (1999) 3 SCC 573 and Muddasani Venkata Narsaiah (dead) Through legal Representatives Vs. Muddasani Sarojana (2016) 12 SCC 288 . 9. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. Sudhiya Bai in her life-time executed sale deed dated 6.6.80 (Ex. D/1) in favour of defendants No. 1 and 2 for consideration of 30,000/- and delivered the suit property in favour of the defendants. The plaintiff claiming to be legal heir of Smt. Sudhiya Bai after her death instituted the instant suit for declaring that the sale deed dated 6.6.80 (Ex. D/1) is not binding on him and claimed a decree for possession. The trial Court held that the plaintiff is legal heir of Sudhiya Bai after her death and held him entitled for decree of possession. The First Appellate Court in appeal reversed that decree holding that sale deed dated 6.6.80 (Ex. D/1) was voluntarily executed by Sudhiya Bai in favour of defendants No. 1 and 2, therefore, consideration, if any, has not been passed to Sudhiya Bai, remedy of the plaintiff is to institute a suit for recovery of consideration amount as non-payment of consideration amount, if any, would not render the sale deed null and void, which has been questioned in this second appeal. 11. The question for consideration would be whether non-payment of consideration would render the sale deed dated 6.6.80 (Ex. D/1) null and void? 12. Section 54 of the Transfer of Property Act, 1882 (hereinafter called as "TP Act") defines sale as under:- "54. "Sale" defined.-"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.-Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." 13. The Supreme Court in the matter of Vidhyadhar (supra) while considering Section 54 of the Transfer of Property Act held that even if the whole of the price is not paid, but sale deed is executed and thereafter registered, if the property is of value of more than Rs. 100, the sale would be complete. It was held as under:- "36. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised" indicate that actual payment of whole of the price at the time of the execution of sale deed is not sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/-, the sale would be complete. 37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gyatri Prasad Vs. 100/-, the sale would be complete. 37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gyatri Prasad Vs. Board of Revenue 1973 All LJ 412, it was held that non-payment of a portion of the sale price would not effect validity of sale. It was observed that part payment of consideration by vendee itself proved the intention to pay the remaining amount of sale price. To the same effect is the decision of the Madhya Pradesh High Court in Sukaloo and Anr. Vs. Punau. 38. The real test is the intention of the parties. In order to constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in present or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record." 14. The Supreme Court in the matter of Muddasani Venkata Narsaah (2016)12 SCC 288 (supra) has held that the passing of consideration under a sale deed cannot be questioned by third party. It was held as under:- "It is also settled law that passing of consideration under a sale deed cannot be questioned by third party. Defendant 3 has not been able to establish her case that she is an adopted daughter of the deceased Yashoda and thus, she being the third party, could not have questioned the execution of the sale deed by Buchamma on the ground; of passing of consideration as rightly laid down :by the High Court of Madhya Pradesh in Ramjilal Tiwari Vs. Vijay Kumar. The High Court of Patna has also held that passing of consideration can be questioned by a party or his representatives in Akli Vs. Daho MANU/BH/0127/1927. Similar is the view of the High Court of Nagpur in Maroti Bansi Teli 1943 SCC Online MP 128. Thus, High Court has erred in law on this ground also in dismissing the suit." 15. The Full Bench of the Allahabad High Court in the matter of Dip Narain Singh Vs. Daho MANU/BH/0127/1927. Similar is the view of the High Court of Nagpur in Maroti Bansi Teli 1943 SCC Online MP 128. Thus, High Court has erred in law on this ground also in dismissing the suit." 15. The Full Bench of the Allahabad High Court in the matter of Dip Narain Singh Vs. Nageshar Prasad ILR 52 All 338 : AIR 1930 All 1 FB observed that once a document transferring immovable property has been registered the transaction passes out of the domain of a mere contract and into one of the conveyance. Such a completed transaction is governed by the provisions of the Transfer of Property Act and so much of the Contract Act as is applicable thereto. 16. A conspectus of the aforesaid judgment would show that mere nonpayment of consideration will not arrest the passing of title as a sale of immovable property may be effected in exchange for the price paid or promised to be paid. But whether the vendor really intended to transfer the ownership by mere execution and registration or contracted to do so only after receipt of the consideration as a condition precedent, would depend upon the terms of the contract. 17. Reverting to the facts of the present case, it is quite vivid that Sudhiya Bai executed a sale deed in favour of Veer Singh on 6th June, 1980. In the said sale deed, so far as the amount of consideration is concerned, it has clearly been stated that she has already received the entire consideration amount and no amount is left outstanding. It has also been said in the sale deed that she has taken the amount for maintenance and for. treatment of her illness. In his support Shri R.K. Diwan, Sub-Registrar (DW-1) and J.P. Rai, Sub-Registrar (DW-2) have been examined and they have certified and proved the contents of sale deed which clearly shows that Sudhiya Bai had really intended to transfer ownership by execution and registration of sale deed. The recital in the sale deed admits no doubt that she had intended to transfer the title in favour of Veer Singh (defendant No. 1) on date of execution of sale deed. The recital in the sale deed admits no doubt that she had intended to transfer the title in favour of Veer Singh (defendant No. 1) on date of execution of sale deed. The Supreme Court in the matter of Vidhyadhai (1999)3 SCC 573 (supra) has clearly held that even if the whole of the price is not paid, but the document is executed and registered, if the property is of more than Rupees Hundred, the sale would complete, as such, it cannot be held that consideration had not passed to Sudhiya Bai and sale deed executed by her is void for want of consideration. 18. At this stage, it would be appropriate to notice Section 54 (4) (b) of the TP Act which states as under:- "55. Rights and liabilities of buyer and seller.-In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (4) the seller is entitled- (a) xxx xxx xxx (b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the nonpayment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered." 19. The aforesaid provision provides that when the ownership of the property is transferred to the buyer before the payment of the whole price, the vendor is entitled to charge on that property for the amount of sale price as also for interest thereon from the date of delivery of possession. 20. The Supreme Court in the matter of Vidhyadhar (supra) while considering the applicability of Section 55 (4) (b) of the Transfer of Property Act held as under:- "42. This clause obviously applies to a situation where the ownership in the property has passed to the buyer before the whole of the purchase money was paid to the seller or the vendor. What is contained in this clause is based on the English Doctrine of Equitable Lien as propounded by Baron Rolfe in Goode Vs. This clause obviously applies to a situation where the ownership in the property has passed to the buyer before the whole of the purchase money was paid to the seller or the vendor. What is contained in this clause is based on the English Doctrine of Equitable Lien as propounded by Baron Rolfe in Goode Vs. Burton (1847) 74 RR 633 : 1 Ex 189. This clause confers statutory recognition on the English Doctrine of Equitable Lien. As pointed out by the Privy Council in Webb Vs. Macpherson (1903) 30 IA 238 the statutory charge under this paragraph is inflexible. The charge does not entitle the seller to retain possession of the property as against the buyer but it positively gives him a right to enforce the charge by suit. (See: Venkataperumal Naidu Vs. Rathnasabhapathi Chettiar AIR 1953 Mad 821 ; Shobhalal Shyamlal Kurmi Vs. Sidhelal Halkelal Bania AIR 1939 Nag 210:ILR 1939 Nag 636 and Basalingaya Revanshiddappa Vs. Chinnaya Karibasappa AIR 1932 Bom 247 : 34 Bom LR 427." 21. Further Their Lordships in Vidhyadhar (supra) held as under:- "43. In view of the above, the High Court was wholly in error in coming to the conclusion that there was no sale as only a sum of Rs. 500 was paid to defendant No. 2 and the balance amount of Rs. 4500 was not paid. Since the title in the property had already passed, even if the balance amount of sale price was not paid, the sale would not become invalid. The property sold would stand transferred to the buyer subject to the statutory charge for the unpaid part of the sale price." 22. The judgments cited and relied upon by Mr. Mishra, learned counsel particularly Parmanand 1998 (1) MPWN 146 (supra) and Suhrid Singh AIR 2010 SC 2807 (supra) are not applicable to the facts of the present case and clearly distinguishable. 23. In view of the above legal analysis, it is quite vivid that the remedy of the plaintiff/appellant, if any, is to bring a suit for consideration amount and sale cannot be declared void for want of consideration as Sudhiya Bai intended to transfer the suit land in favour of the defendants, as such, the First Appellate Court is justified in granting the appeal by appreciating the evidence in proper perspective and dismissing the suit. I do not find any illegality or perversity in the said finding. 24. Accordingly, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own costs. 25. A decree be drawn up accordingly.