Himachal Pradesh High Court
Ram Rattan vs In The Instant Case on 10 December, 2021
Bench: Jyotsna Rewal Dua
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
(I) REGULAR SECOND APPEAL No.517 OF 2010
Between :-
RAM RATTAN, S/O SHRI BANTA RAM,
R/O VILL. SANOLI ROAD,
SANTOKHGARH, TEHSIL & DISTRICT
UNA, H.P.
...APPELLANT/PLAINTIFF
(BY MR. B.S. CHAUHAN, SENIOR ADVOCATE WITH MR.
MUNISH DATWALIA, ADVOCATE)
AND
1. SHRI SAT PAL SAINI, S/O SHRI
MOTI RAM ALIAS UPINDER LAL,
R/O SIDHUWAL LODGE, THE
RIDGE, SHIMLA, H.P.
2. SHRI ASHOK KUMAR, S/O SHRI
MOTI RAM ALIAS UPINDER LAL,
R/O MOHALL GHUMARAWALA,
SANTOKHGARH, TEHSIL &
DISTRICT UNA, H.P.
...RESPONDENTS/DEFENDANTS No. 1 & 2
( MR. Y.P. SOOD, ADVOCATE, FOR RESPONDENT No. 1)
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2
(MS. DEVYANI SHARMA, ADVOCATE, FOR
RESPONDENT No. 2)
.
(II) REGULAR SECOND APPEAL No.499 OF 2010
Between :
1. SHRI SAT PAL SAINI, S/O SHRI
MOTI RAM ALIAS UPINDER LAL,
R/O SIDHUWAL LODGE, THE
RIDGE, SHIMLA, H.P.
...APPELLANT/DEFENDANT No.1
(BY MR. Y.P. SOOD, ADVOCATE)
AND
1. ASHOK KUMAR, SON OF MOTI
RAM ALIAS UPINDER LAL,
RESIDENT OF MOHALLA
GHUMARAWALA,
SANTOSHGARH, TEHSIL AND
DISTRICT UNA, H.P.
RESPONDENT/DEFENDANT No.2
2. RAM RATTAN, SON OF BANTA
RAM, RESIDENT OF SANOLI
ROAD, SANTOSHGARH, THESIL
AND DISTRICT UNA, H.P.
..PROFORMA RESPONDENT/PLAINTIFF
(MR. B.S. CHAUHAN, SENIOR ADVOCATE WITH MR.
MUNISH DATWALIA, ADVOCATE FOR PROFORMA
RESPONDENT).
(MS. DEVYANI SHARMA, ADVOCATE, FOR
RESPONDENT/DEFENDANT No. 2)
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RESERVED ON : 26.11.2021
DELIVERED ON : 10.12.2021
.
WHETHER APPROVED FOR REPORTING : YES
____________________________________________________
This petition coming on for pronouncement this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, delivered the
following :
JUDGMENT
These two appeals arise out of common judgments and
decrees passed by the learned Courts below, hence are taken up
together for decision. RSA No. 517 of 2010 is plaintiff's appeal
whereas RSA No. 499 of 2010 is defendant No.1's appeal.
Defendants No. 1 & 2 are sons of late Smt. Gurbax
Kaur. Smt. Gurbax Kaur, defendant No. 2 and daughters of Smt.
Gurbax Kaur had executed a General Power of Attorney (in short
GPA) in favour of defendant No. 1 on 09.03.1981. Plaintiff's case
was that defendant No. 1 acting as GPA of his mother, on
11.09.2001 executed an agreement to sell the suit land to the
plaintiff for a sale consideration of Rs. 75,000/-. Earnest money of
Rs. 10,000/- was received by Smt. Gurbax Kaur and Rs. 30,000/-
was received by defendant No.1 towards sale consideration.
Instead of executing the sale deed in plaintiff's favour, Smt.
Gurbax Kaur sold the suit land in favour of defendant No. 2 vide a
registered sale deed on 28.12.2001. In his written statement,
.
defendant No. 1 supported plaintiff's case in entirety but did not
step into the witness box. Defendant No. 2 vehemently contested
plaintiff's case and called the suit to be collusive between plaintiff
and defendant No. 1. Learned trial Court decreed the suit on
16.03.2009. Learned First Appellate Court on 16.08.2010
reversed the decree and dismissed the suit. Plaintiff was,
however, held entitled to recover Rs. 30,000/- from defendant No.
1. Aggrieved against dismissal of his suit, plaintiff has preferred
RSA No. 517 of 2010. Defendant No. 1 has filed RSA No. 499 of
2010 against the common judgment and decree, whereby he has
been held liable to pay Rs. 30,000/- alongwith interest @ 6% per
annum from the date of institution of suit till its realization to the
plaintiff.
2. Brief facts may now be noticed :-
2(i) A civil suit was instituted by the appellant for (i)
possession through specific performance of an agreement to sell,
dated 11.09.2001 of land comprised in Khewat No. 595, Khatauni
No. 646, Khasra Nos. 1540, 1541 and 1542, measuring 114.86
square meters, situated at village Santoshgarh, Tehsil and District
Una, H.P.; (ii) declaration that sale deed dated 28.12.2001
executed in favour of defendant No. 2 with respect to the suit land
is illegal, null and void.
.
The factual foundation pleaded in the plaint was that
defendant No. 1 (respondent No. 1) was the GPA of his mother
Smt. Gurbax Kaur, his brother Ashok Kumar (defendant No. 2)
and his sisters (non parties to the suit). Smt. Gurbax Kaur was
owner in possession of the suit land. In July, 2001, the
defendants alongwith their mother approached the plaintiff to sell
the suit land. A consensus was arrived on 09.07.2001 regarding
purchase of suit land by the plaintiff for a total sale consideration
of Rs. 75,000/-. A sum of Rs. 10,000/- was paid by the plaintiff as
earnest money on 09.07.2001. A sum of Rs. 5,000/- was paid on
07.08.2001. Rs. 5,000/- was also advanced on 21.08.2001
towards sale consideration. At the time of payment of further
amount of Rs. 20,000/- an agreement to sell the suit land was
executed in plaintiff's favour on 11.09.2001 by defendant No. 1 as
the general power of attorney on behalf of his mother. The
plaintiff pleaded that the defendants and their mother received
total amount of Rs. 40,000/- towards total sale consideration of
Rs. 75,000/-. The plaintiff was ready and willing to pay the
balance sale consideration amount of Rs. 35,000/-, however, the
mother of the defendants died in February, 2002. The sale deed
was not executed in plaintiff's favour. After issuing legal notice to
the defendants on 29.08.2002, the plaintiff inspected the revenue
.
record and became aware of the fact that sale deed of suit land
had already been executed by late Smt. Smt. Gurbax Kaur in
favour of her son i.e. defendant No. 2 on 28.12.2001.
In the backdrop of above facts, plaintiff instituted the
suit for specific performance of agreement dated 11.09.2001 and
for declaration that the sale deed dated 28.12.2001 and
consequent revenue entries in favour of defendant No. 2 were
void and illegal.
2(ii) In his written statement, defendant No. 2 claimed the
suit filed by the plaintiff to be collusive, fraudulent and at the
instigation of defendant No. 1. Defendant No. 2 admitted
execution of sale deed of suit land and the 'abadi' standing over
it, in his favour by his mother Smt. Gurbax Kaur on 28.12.2001.
Defendant No. 2 pleaded himself to be owner in possession of
the suit land and that he had raised construction over it. He
denied his mother entering into any agreement to sell the suit
land in favour of plaintiff or having received any money in lieu
thereof. He also denied his mother having approached the
plaintiff for sale of suit land. He also pleaded that his mother
never authorized defendant No. 1 to sell the suit land in favour of
plaintiff. That he (defendant No. 2) was bonafide purchaser of the
suit land for valuable consideration. Defendant No. 2 submitted
.
that his brother i.e. defendant No. 1 was appointed as GPA by
him (defendant No.2) and their mother to look after and manage
their joint property in Ranchi (Bihar) and Hoshiarpur (Punjab).
Defendant No. 1 became dishonest and alienated entire joint
property in Bihar and some of the properties in Punjab on the
basis of GPA without the consent of defendant No. 2 and his
mother. On coming to know these facts, they cancelled the GPA
in favour of defendant No.1.
2(iii) Defendant No. 1 in his written statement admitted
entire case of the plaintiff and denied the averments of the written
statement filed by defendant No.1. He submitted that the sale
deed of the suit land in favour of defendant No. 2 was got
executed taking undue advantage of absence of defendant No.1.
That it was fabricated and fictitious sale deed. That defendant No.
2 was liable to execute the sale deed in favour of plaintiff since
the suit land was now in the name of defendant No. 2.
2(iv) Plaintiff and defendant No. 2 led evidence in support of
their respective contentions. Defendant No. 1 did not adduce any
evidence. Learned trial Court decreed the suit vide judgment and
decree dated 16.03.2009. The decree was reversed by the
learned First Appellate Court on 16.08.2010. Plaintiff's suit was
dismissed. He, however, was held entitled to recover Rs. 30,000/-
.
from defendant No. 1.
It is in the aforesaid background that the plaintiff and
defendant No. 1 have preferred their respective appeals.
3. RSA No. 517 of 2010
This appeal was admitted on 03.12.2010 on the
following substantial questions of law :-
"1. Whether learned District Judge erred in appreciating the
provisions of law applicable, pleadings of the parties and
evidence adduced by them in its right perspective thereby
vitiating the impugned judgment and decree ?
2. Whether learned District Judge erred in appreciating the
oral and documentary evidence with special reference to
documents, Exhibit PW-2/A, exhibit PW-5/A, exhibit P-4 and
exhibit P-5 and so also the statement of PW-2 thereby
vitiating the impugned judgment and decree ?"
RSA No. 499 of 2010
This appeal was admitted on 24.11.2010 on the
following substantial questions of law :-
"1. Whether a decree for recovery of Rs. 30,000/- could be
passed against the appellant in the absence of any claim set
up by the plaintiff in the suit and the decree as passed is is
beyond pleadings and the findings recorded by the learned
First Appellate Court contrary to the pleadings are vitiated ?
2. Whether the appellant who was having legal and valid
General Power of Attorney of his mother could be held
personally liable for the acts done by him while acting as
.
General Power of Attorney of his mother and the findings
thus recorded by the learned Appellate Court are vitiated ?
3. Whether the suit could be held to be filed in collusion with
the appellant simply on the ground that the appellant had
admitted the execution of agreement to sell Ex. PW-2/A
executed by him as General Power of Attorney and the
findings thus recorded are vitiated ?
4. The substantial questions of law formulated in both the
appeals are all based on facts and can be answered after
considering the pleadings and the evidence.
I have heard Shri B.S. Chauhan, learned senior
Counsel for the appellant, Shri Y.P. Sood, learned counsel for
respondent No. 1 and Ms. Devyani Sharma, learned counsel for
respondent No. 2. With their assistance, I have seen the record of
case files.
There are two aspects of the case :-
One revolves around the agreement to sell dated
11.09.2001 allegedly executed by defendant No. 1 as GPA of his
mother Smt. Gurbax Kaur in favour of the plaintiff regarding sale
of the suit property. Plaintiff seeks enforcement of this agreement.
The other revolves around the sale deed dated
28.12.2001 allegedly executed by Smt. Gurbax Kaur in favour of
.
defendant No. 2 of the suit property. Plaintiff has questioned this
sale deed.
The above two aspects are being separately considered
hereinbelow :-
4(a) Regarding agreement to sell dated 11.09.2001
Following is relevant in this regard.
4(a)(i) The case set up by the plaintiff is that agreement to sell
dated 11.09.2001 (Ex. PW-2/A) was preceded by three receipts.
First receipt is dated 09.07.2001 (Ex. PW-5/A).
According to this receipt, an amount of Rs. 10,000/- was received
by Smt. Gurbax Kaur from the plaintiff as earnest money towards
sale consideration with respect to the sale of suit land by her to
plaintiff against total agreed sale consideration of Rs. 75,000/-.
To the naked eye, the receipt (Ex. PW-5/A) does not
appear to be genuine. The last lines appear to have been
squeezed in the receipt in order to deliberately adjust them above
the existing thumb impression stated to be that of Smt. Gurbax
Kaur.
As per this receipt, Smt. Gurbax Kaur the vender
received Rs. 10,000/- from the plaintiff on 09.07.2001. In his
affidavit, submitted by way of examination-in-chief, the plaintiff
(PW-4) stated that the receipt was handed over to him by Smt.
.
Gurbax Kaur on 09.07.2001 after receiving Rs. 10,000/-.
However, in his cross examination, he stated that this receipt
was not prepared before him. He did not know who wrote the
receipt and where. He could not even name the persons in whose
presence the receipt was written. He stated that he was handed
over the receipt by Bhagat Ram. However, he again stated that
Bhagat Ram and Smt. Gurbax Kaur were there while handing
over the receipt to him. PW-5 Madan Lal though identified his
father's (Bhagat Ram) signature at the bottom of the receipt,
however, PW-5 is not a witness to the contents or to the events
described in the document.
Under the orders of learned trial Court, the Finger Print
Bureau Phillaur was sent receipt dated 09.07.2001, cancellation
deed dated 19.01.2002 and sale deed dated 28.12.2001. The
Bureau reported that "impression Q on the receipt Ex. PW-5/A
dated 09.07.2001 is sufficiently ink smudged and do not permit of
comparison on its dependable ridge characteristic details. Hence
no opinion can, therefore, be given on it."
4(a)(ii) The receipts dated 07.08.2001 (Ex. P-4) and dated
21.08.2001 (Ex. P-5) bear the signatures of defendant No. 1 as
recipient of the earnest money. Surprisingly, Ex. PW-5/A which
allegedly bears the thumb impression of Smt. Gurbax Kaur was
.
stated to be witnessed by Bhagat Ram, whereas for executing
these two receipts, i.e. Ex. P-4 and P-5, the witness was not
considered necessary. The obvious reason for the same, which
immediately flashes, is that Ex. PW-5/A needed to be secured by
the plaintiff and defendant No. 1 in order to show that it was
executed by Smt. Gurbax Kaur, whereas the other two receipts
are executed by defendant No. 1 who has admitted the entire
case of the plaintiff and is in league with him.
4(a) (iii) Case of the plaintiff is that on 11.09.2021, defendant
No. 1 as GPA of Smt. Gurbax Kaur received Rs. 20,000/- from
him for his (defendant No.1's) mother in lieu of intended sale of
the suit land and executed an agreement to sell. This agreement
to sell is Ex. PW-2/A. A close look at this agreement shows its
execution in somewhat unusual manner. The witnesses have not
signed at the end of the document. One of the witnesses Mangat
Ram signed on the left hand side margin at the first page of the
agreement and the other witness Dharam Chand signed on the
left hand margin of the second page of the agreement. The
vendee/plaintiff has not signed at the bottom of the agreement,
but on the left hand margin of the first page of the agreement.
The agreement (Ex. PW-2/A) makes no reference to
the house standing over the suit land. The plaintiff in his affidavit
.
furnished by way of examination-in-chief stated that house was
also intended to be sold under the agreement. While deposing in
his cross-examination as PW-4, he stated that agreement records
sale of house whereas it is not so recorded in the agreement.
The agreement (Ex. PW-2/A) is scribed by document
writer Anil Jaswal, who appeared in the witness box as PW-2. In
his affidavit furnished by way of examination-in-chief, he stated
having scribed the agreement on the asking of defendant No. 1
and that after scribing the same, he read out the document to
defendant No. 1 and the witnesses. He has not mentioned that
plaintiff was present at the time of execution of the agreement.
Anil Jaswal was directed to produce his register of entry of
documents. During his cross-examination, he stated to have lost
this register and did not produce it.
Mangat Ram, who allegedly witnessed the execution of
the agreement, dated 11.09.2001 did not step into the witness
box. Dharam Chand, the other witness to the agreement, also did
not step into the witness box. The Notary Public also did not step
into the witness box. The defendant No.1, who executed the
agreement as GPA of his mother in favour of the plaintiff, also did
not step into witness box.
.
The plaintiff in his affidavit, furnished by way of
examination-in-chief, stated that defendant No. 1 as GPA of his
mother had executed the agreement to sell in his favour on
11.09.2001 through scribe Anil Jaswal in presence of witnesses.
He further goes on to state that the agreement was scribed in
presence of witnesses. It was read out to them and thereafter
they appended their signatures on the same. That he had paid an
amount of Rs. 20,000/- to defendant No. 1 on 11.09.2001,
whereas in cross examination, he deposed that after getting the
document scribed from the document writer, he had left the
premises. That he never appeared before any authority for the
attestation of the document. He further states in his cross
examination that the document was taken for notarization after 2-
3 days of its execution. He failed to recall the day and the events
relating to this agreement.
Defendant No. 2 stated that defendant No.1 had
colluded with the plaintiff to deprive him the suit property. Plaintiff
in connivance with defendant No. 1 had created fictitious receipts
and agreement to sell. He also stated that entire property of his
mother and three sisters at Hoshiarpur and Ranchi had been sold
by defendant No. 1. Further, that Smt. Gurbax Kaur was left with
suit property alone.
.
4(b) Sale Deed dated 28.12.2001 executed in favour of
defendant No. 2.
4(b)(i) Ex. DW-3/A is the sale deed executed on 28.12.2001 in
favour of defendant No. 1. In terms of this sale deed, the seller
Smt. Gurbax Kaur had sold the suit land in favour of defendant
No. 2. The sale deed was registered on 19.01.2002 at Sr. No.
1923. DW-5 is the registration Clerk who has proved the
registration of Ex. DW-3/A vide endorsement Ex. DW-5/B. DW-6
is the scribe of the sale deed (Ex. DW-3/A). He has stated that
the document was scribed by him on the asking of Smt. Gurbax
Kaur and was read out to her and the witnesses as well as to
defendant No. 1. After understanding it, they had appended their
thumb impressions/signatures over it. He has also given the
details of the serial number and the date when the document was
entered in the register maintained by him for the said purpose.
DW-9 is an Advocate, who had attested the sale deed.
He testified that he and Jarnail Singh had witnessed execution of
sale deed Ex. DW-3/A. He deposed that scribe had read out the
document to the seller Smt. Gurbax Kaur who after admitting it to
be correct appended her thumb impression on it. That witnesses
also signed the document. That the document was taken to the
Sub Registrar for registration. That the Sub Registrar had read
.
out the document to all before registering it. Defendant No. 2 has
proved execution of sale deed in accordance with law.
Ex. DW-7/A is the document whereby defendant No.
2 cancelled the GPA earlier executed by him in favour of
defendant No. 1. This document was registered on 19.01.2002.
The document has been proved in accordance with law.
Ex. DW-5/A is a document whereby Smt. Gurbax
Kaur and her daughters cancelled the GPA earlier executed by
them in favour of defendant No. 1. Ex. DW-5/A was executed on
19.01.2002. The document was registered and has been proved
in accordance with law. This document records an averment that
defendant No. 1 had not withstood the confidence reposed in him
by his mother Smt. Gurbax Kaur and sisters.
4(b)(ii) Ex. DW-4/A is the copy of plaint filed by defendant
No. 1 against defendant No. 2. This Civil Suit No. 218 of 2002
was instituted by defendant No. 1 on 30.09.2002 against
defendant No. 2. In this civil suit, challenge was made by
defendant No. 1 to the sale deed executed by Smt. Gurbax Kaur
in favour of defendant No. 2 on 28.12.2001. Contention of
defendant No. 1 was that the sale deed was void and suit
property, therefore, be declared as joint property of defendants
No. 1 and 2. Mutation No. 89, attested in favour of defendant No.
.
2 on the basis of the sale deed be also declared void. Noticeable
fact is that in the entire plaint, there is no mention of any
agreement to sell dated 11.09.2001 executed by defendant No. 1
as GPA of his mother for selling the suit land in favour of plaintiff.
The suit filed by defendant No. 1 was dismissed in default on
24.09.2004. The order has attained finality.
4(b)(iii) Ex. D-2 is copy of an order passed by Settlement
Collector Kangra on 22.12.2003 dismissing the appeal preferred
by defendant No. 1 against mutation No. 89, attested on
02.01.2002 in favour of defendant No. 2 with respect to the suit
land. The order notices the fact that sale deed with respect to the
suit land was executed in favour of defendant No. 2 on
28.12.2001. In terms of this sale deed, the vender (Smt. Gurbax
Kaur) had sold the suit land for a sale consideration amount of
Rs. 53,500/- to defendant No. 2. This sale deed was registered at
Sr. No. 1923 on 28.12.2001. On the basis of this sale deed,
mutation No. 89 was attested in favour of defendant No. 2. The
seller was alive at the time of attestation of mutation. The order
dated 22.12.2003 has become final.
5. Having discussed above the entire relevant evidence,
there is no escape from concluding that in the facts and
.
circumstances of the case, the agreement to sell dated
11.09.2001 is the result of fraud and collusion between plaintiff
and defendant No.1. Suit filed by the plaintiff for specific
performance of this agreement cannot be decreed. The reasons
for this are :-
5(a) Plaintiff's main thrust is on the stand taken by
defendant No. 1 in his written statement. Defendant no. 1 in his
written statement has admitted that he had executed the
agreement to sell dated 11.09.2001 as a GPA holder of his
mother Smt. Gurbax Kaur in favour of the plaintiff. He has also
admitted in his written statement that his mother intended to sell
the suit property to the plaintiff for a sale consideration of Rs.
75,000/-. That she herself received Rs. 10,000/- on 09.07.2001,
whereas as her GPA, he received Rs. 5,000/- on 07.08.2001, Rs.
5,000/- on 21.08.2001 and Rs. 20,000/- on 11.09.2001.
Defendant No. 2 has not admitted plaintiff's case.
Defendant no. 2 is the person in whose favour sale deed Ex. PW-
3/A has been executed by Smt. Gurbax Kaur on 28.12.2001.
Defendant No. 1 may have admitted plaintiff's case in his written
statement, but he did not step into the witness box. Defendant
No. 2 did not get any opportunity to cross examine defendant No.
1. Plaintiff's case was primarily based upon defendant No. 1's
.
admission. Plaintiff did not produce defendant No. 1 in the
witness box. Defendant No. 1's written statement cannot be taken
to be true and accepted as such as against the version of
defendant No. 2. The credibility of stand taken by defendant No. 1
has gone un-tested. Defendant No. 1 has not cross examined
defendant No. 2, rather plaintiff has cross examined defendant
No. 2. The other evidence on record in this regard becomes
material in view of defendant No. 1 having not deposed.
5(b) Defendant No. 1 was aware that sale deed with
respect to the suit land and the 'abadi' standing over it, had been
executed by Smt. Gurbax Kaur in favour of defendant No. 2 on
28.12.2001. Mutation No. 89 on the basis of the sale deed was
attested in favour of defendant No. 2 on 02.01.2002. Defendant
No. 1 had challenged the order of attestation of mutation. His
appeal was dismissed by the Settlement Collector on 22.12.2003.
While dismissing the appeal, the Collector recorded a finding that
the vender Smt. Gurbax Kaur was alive on 02.01.2002 at the
time of attestation of mutation. Defendant No. 1 did not challenge
the order dated 22.12.2003 any further.
In his written statement filed on 28.02.2003, defendant
No. 1 has not even cared to mention about his challenge to the
.
mutation attested in favour of defendant No. 2.
5(c) Defendant No. 1 had filed a civil suit challenging the
sale deed executed in favour of defendant No. 2. This civil suit
(Ex. DW-4/A) was filed on 30.09.2002. In this plaint, defendant
No.1 does not mention anything about his executing any
agreement to sell on 11.09.2001 in favour of present plaintiff. His
written statement filed in the present civil suit on 28.02.2003
admitting entire case of the plaintiff with respect to execution of
agreement dated 11.09.2001 become suspicious.The evidence in
respect of agreement to sell dated 11.09.2001 and the receipts
relied upon by the appellant/plaintiff have already been discussed
earlier. The present suit filed by the appellant has to be held as
collusive with defendant No. 1.
5(d) Defendant No.1-the executant, of the agreement dated
11.09.2001, for specific performance of which the present suit
has been filed, did not step into the witness box. Alleged witness
to the agreement i.e. Mangat Ram also did not step into the
witness box. Dharam Chand, the second witness to the
agreement was also not produced in the witness box. The person
who notarized the agreement was also not produced. Scribe of
the agreement though appeared in the witness box, but his
deposition runs contrary on material particulars to the deposition
.
of the plaintiff. Scribe's statement does not even inspire
confidence. He deposed having executed the agreement only at
the instance of defendant No. 1. He does not even refer to the
presence of the plaintiff at the time of scribing the agreement.
Despite having been asked to produce the register wherein the
document i.e. agreement to sell dated 11.09.2001 was allegedly
entered, the scribe did not produce the register.
5(e) Learned senior Counsel for the appellant/plaintiff
argued that the sale deed executed in favour of defendant No. 2
by his mother was illegal and void on the ground that no
money was transacted between the vender and vendee. It was
highlighted that sale must be for a valid consideration. Section 54
of the Transfer of Property Act was pressed into service which
reads 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
immoveable 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 immoveable 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 immoveable 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 immoveable
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."
In support of the above submissions, reliance was
placed upon a decision of Hon'ble Apex Court dated 22.11.2021
in Civil Appeal Nos. 6989-6992 of 2021, titled Kewal Krishan
Vs. Rajesh Kumar and others etc. wherein it was held that a
sale of an immovable property has to be for a price. The price
may be payable in future. It may be partly paid and the remaining
part can be made payable in future. The payment of price is an
essential part of a sale covered by section 54 of the TP Act. If a
sale deed in respect of an immovable property is executed
without payment of price and if it does not provide for the
payment of price at a future date, it is not a sale at all in the eyes
of law. It is of no legal effect. Therefore, such a sale will be void. It
will not effect the transfer of the immovable property.
In AIR 1922 Madras 311, titled Madam Pilai Vs.
Badrakali Ammal and another, it was held that "price has a well
.
defined meaning. It means money, but not necessarily money
handed over in current coin at the time but includes money which
might be already due, or might be payable in the future."
In the instant case, sale deed (Ex. DW-3/A) was
executed by Smt. Gurbax Kaur in favour of defendant No. 2 for
Rs. 53,500/- which were lent to her/spent on her by him. Sale
deed records the fact that defendant no. 2 has been taking care
of his mother, providing her with food, clothing, shelter etc. The
sale deed also records that vender-Gurbax Kaur has already
been paid Rs. 53,500/- by defendant No. 2 and in lieu of the
same, she had executed the sale deed. Sale deed (Ex. DW-3/A)
is not without consideration. In the facts of the case, sale deed
(Ex. DW-3/A) cannot be said to be a sham transaction. It was a
registered sale deed, duly proved in evidence in accordance with
law. On the basis of this sale deed, mutation No. 89 was attested
in favour of defendant No. 2. The vender was herself alive at the
time of attestation of mutation. The sale deed has been
questioned by the plaintiff. It has already been held that
agreement to sell the suit land executed by defendant No. 2 as
GPA of Smt. Gurbax Kaur in favour of plaintiff is collusive and
cannot be enforced by the plaintiff. Proceeding from there,
plaintiff becomes a third party. It is settled law that passing of
.
consideration under a sale deed cannot be questioned by a third
party. {Re: (2016) 12 SCC 288 Muddasani Venkata Narsaiah
Vs. Muddasani Sarojana}. Insofar as defendant No. 1 is
concerned, he already took his chance in challenging the sale
deed (Ex.DW-3/A) in the civil suit and lost it.
6. In view of above discussion, both substantial questions
of law formulated in the Regular Second Appeal No. 517 of 2010
are answered against the appellant/plaintiff. Learned first
appellate Court did not commit any error in appreciating the
pleadings, the evidence and law in dismissing the suit filed by the
plaintiff. The oral as well as documentary evidence including Ex.
PW-2/A, Ex. PW-5/A, Ex. P-4, Ex.P-6 and statement of PW-2
were all properly considered and appreciated by the learned first
appellate Court. Consequently, I find no merit in Regular Second
Appeal No. 517 of 2010.
7. For all the above reasons, the substantial questions of
law framed in RSA No. 499 of 2010 are decided against the
appellant therein (defendant No.1). Defendant No. 1 has admitted
receipt of an amount of Rs. 30,000/- from the plaintiff for sale of
suit land in plaintiff's favour. Therefore, learned first appellate
Court was justified in holding the plaintiff entitled to the recovery
of this amount alongwith interest from defendant No. 1.
.
Consequently, I find no merit in Regular Second Appeal No. 499
of 2010.
Regular Second Appeal No. 517 of 2010 and Regular
Second Appeal No. 499 of 2010 are dismissed. Pending
applications, if any, in both the appeals are also disposed off.
10th DECEMBER, 2021 (K)
to ( Jyotsna Rewal Dua )
Judge
