Karnataka High Court
Shri.Allawalli vs Smt.Khairunbi on 4 March, 2024
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RFA No. 100133 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100133 OF 2018 (PAR/POS)
BETWEEN:
SHRI. ALLAWALLI
S/O. BAKASHARSAB SHAIKH,
SINCE DECEASED BY HIS LRs.,
1. SMT. SHAHEEDABI
W/O. ALLAWALLI SHAIKH,
AGED ABOUT 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TARIHAL, HUBBALLI,
TQ: DHARWAD, DISTRCIT-580025.
2. RAZIYA
D/O. ALLAWALLI SHAIKH,
AGED ABOUT 27 YEARS,
SHIVAKUMAR
HIREMATH OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF
R/O: TARIHAL, HUBBALLI,
KARNATAKA
DHARWAD BENCH
Date: 2024.03.13
TQ: DHARWAD, DISTRCIT-580025.
12:02:54 +0530
3. BIBI ZEHERA
D/O. ALLAWALLI SHAIKH,
AGED ABOUT 25 YEARS
OCC: HOUSEHOLD WORK,
R/O: TARIHAL, HUBBALLI,
TQ: DHARWAD, DISTRCIT-580025.
4. MOHAMMAD JAFAR
S/O. ALLAWALLI SHAIKH,
AGED ABOUT 23 YEARS,
OCC: HOUSEHOLD WORK,
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RFA No. 100133 of 2018
R/O: TARIHAL, HUBBALLI,
TQ: DHARWAD, DISTRCIT-580025.
5. KOUSARBANU
D/O. ALLAWALLI SHAIKH,
AGED ABOUT 20 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TARIHAL, HUBBALLI,
TQ: DHARWAD, DISTRCIT-580025.
...APPELLANTS
(BY SRI.H.R.GUNDAPPA, ADVOCATE)
AND:
1. SMT. KHAIRUNBI
W/O. HASHEMPATIL PANDRE,
AGED ABOUT 67 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KONNUR, TQ: JAMAKHANDI,
BAGALKOT DISTRICT-587311.
2. SRI. BABAALI
S/O. BAKHSARSAB SHAIKH,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: TARIHAL, HUBBALLI,
TQ: DHARWAD DISTRCIT-580025.
3. SRI. RAJESAB
S/O. ALLISAB SHAIKH,
AGE: 62 YEARS,
OCC: AGRICULTURIST,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
4. SRI. MOULASAB
S/O. ALLISAB SHAIKH,
AGE: 60 YEARS,
OCC: COOLIE,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
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RFA No. 100133 of 2018
5. SMT. FATIMA
W/O. ALLABAKSHA SHAIKH,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
6. SRI. ALLISAB
S/O. ALLAABAKSHA SHAIKH,
AGE: 37 YEARS, OCC: COOLIE,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
7. SMT. KHATUNBI
D/O. ALLABAKSHA SHAIKH,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
8. SMT. BEGAUM
D/O. ALLABAKSHA SHAIKH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
9. SMT. BASIRA
D/O. ALLABAKSHA SHAIKH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
10. SMT. REHANA
D/O. ALLABAKSHA SHAIKH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
11. SRI. MOHAMMAD ALLABAKSHA
S/O. ALLISAB SHAIKH,
AGE: 23 YEARS, OCC: COOLIE,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
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RFA No. 100133 of 2018
12. SMT. AFSANA
D/O. ALLABAKSHA SHAIKH,
AGE: 21 YEARS, OCC: HOUSEHOLD WORK,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
13. SRI. HASSANMIYA
S/O. RAJESAB SHAIKH,
AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
R/O: TARIHAL, TQ: HUBBALLI,
DHARWAD DISTRCIT-580025.
14. SRI. HARSHA RAMANGOUDA PATIL
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: H.NO.103, VIJAYA NAGARA LAYOUT,
HUBBALLI-580029,
TQ: HUBBALLI, DHARWAD DISTRICT.
15. SRI. VEERANNA SANGAPPA SAVADI
AGE: 48 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: H.NO.115, VIJAYA ANGARA,
HUBBALLI, TQ: HUBBALLI,
DHARWAD DISTRICT-580029.
...RESPONDENTS
(BY SRI.A.K.MAHANTSHETTAR, ADVOCATE FOR
R3 TO R8 AND R12;
SRI.M.R.MULLA AND SRI S.S.NIRANJAN, ADVOCATES FOR
R14 AND R15;
APPEAL AGAINST R1 AND R10 ARE ABATED
V.O.DATED 12.01.2021;
NOTICE TO R2, R9, R11 AND R13 ARE SERVED)
THIS RFA IS FILED UNDER SEC.96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 12.12.2017 PASSED IN O.S.NO.35/2016 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HUBBALLI, DISMISSING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION,
DECLARATION AND MESNE PROFITS.
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RFA No. 100133 of 2018
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This First Appeal is preferred by plaintiff Nos.2 to 6,
challenging the judgment and decree dated 12.12.2017 passed
in Original Suit No.35/2016 on the file of the II Additional
Senior Civil Judge and JMFC Court, Hubballi (for short,
hereinafter referred to as 'Trial Court'), dismissing the suit of
the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiffs that, original
propositus Herusab died leaving behind three children namely
Baksharasab (husband of plaintiff No.1), Alisab (father of
defendant Nos.3 and 4) and Rajesab (father of defendant
No.13). It is the case of the plaintiffs that, the suit schedule
properties are belong to Herusab and after his death, the suit
schedule properties have to be devolved among his three
children and therefore, it is contended by the plaintiffs that,
Baksharasab along with defendant Nos.3 to 11 have executed
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two sale deeds pertaining to schedule A property on
20.04.2010 and dated 16.04.2010 in favour of defendant
Nos.14 and 15, however, there was no transfer of sale
consideration made by the purchaser in favour of the
Baksharasab and defendant Nos.3 to 11 and accordingly, the
plaintiffs have filed suit against the defendants seeking relief of
partition and separate possession in respect of the suit
schedule properties in O.S.No.35/2016 on the file of the trial
Court contending that, the sale deeds dated 20.04.2010 and
16.04.2010 are not finding on the plaintiffs.
4. After service of notice, the defendants entered
appearance. Defendant Nos.1, 5, 7 and 10 remained absent
and accordingly placed ex-parte. Defendant No.12 did not
contest the matter despite appeared before the trial Court.
Defendant Nos.2 to 5, 8, 9, 11 and 13 have not filed written
statement. The defendant Nos.14 and 15 have filed written
statement denying the averments made in the plaint and
contended that the Baksharasab along with defendant Nos.3 to
11 have sold the suit schedule properties through registered
sale deed and further averred that, transfer of consideration
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has been made at the time of execution of the sale deeds and
as such, sought for dismissal of the suit.
5. The Trial Court, based on the pleadings on record, has
formulated following issues for its consideration:
"ISSUES
1) Whether the plaintiffs prove that themselves and
defendants are in joint possession and enjoyment
of all the suit schedule properties as tenants in
common as pleaded in the plaint?
2) Whether plaintiffs prove that sale deed dated
20-04-2010 executed in favour of defendant No.14
and sale deed dated 16-04-2010 in favour of
defendant No.15 relating to property Block No.106
are illegal and not binding upon the plaintiffs share
as pleaded in the plaint?
3) Whether defendants prove that suit is not
maintainable?
4) Whether defendants prove that suit is barred by law
of limitation?
5) Whether valuation of suit schedule properties and
court fee paid by the plaintiffs is not correct?
6) Whether plaintiffs are entitled the relief as sought
for?
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7) What order or decree?"
6. In order to establish their case, plaintiffs have
examined plaintiff No.2 as P.W.1 and produced 20 documents
as Ex.P.1 to Ex.P.20. Defendants have examined 04 witnesses
D.W.1 to D.W.4 and got marked 13 documents as Ex.D.1 to
Ex.D.13.
7. The Trial Court, after considering the material on
record, by its judgment and decree dated 12.12.2017,
dismissed the suit and being aggrieved by the same, the
plaintiffs have preferred this Regular First Appeal. The
appellants have also filed I.A.No.1/2019 seeking permission to
amend the plaint and as such, presented the appeal before this
Court.
8. We have heard Sri. H.R.Gundappa, learned counsel
appearing for appellants; Sri. A.K.Mahantshettar, learned
counsel for respondent Nos.3 to 8 and 12.
9. Sri. H.R.Gundappa, learned counsel appearing for
appellant contended that, there is no dispute with regard to the
relationship between the parties, however, the said
Baksharasab along with defendant Nos.3 to 11 had executed
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registered sale deed dated 20.04.2010 and 16.04.2010 and
thereby sold the suit schedule properties in favour of defendant
Nos.14 and 15 and there is no transfer of consideration
between the vendor and the purchaser and as such, he
contended that, the said registered sale deeds are null and void
and therefore, sought for interference of this Court. He further
contended that, the plaintiffs are not the parties to the
aforementioned sale deeds and therefore, the alleged
registered documents are not binding on the plaintiffs as the
contesting defendants, fraudulently induced the Baksharasab
and defendant Nos.3 to 11 to execute the registered sale deed
in their favour and as such, sought for interference of this
Court.
10. Sri. H.R.Gundappa, learned counsel appearing for
the appellant submitted that, the appellants have filed
application seeking amendment of plaint to urge the new
ground that, there is no transfer of sale consideration from the
defendant Nos.14 to 15 in favour of the father of the first
plaintiff and accordingly, sought for allowing the said
application. In order to buttress his arguments, he places
reliance on the Judgment of the Hon'ble Apex Court in the case
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of North Eastern Railway Administration, Gorakhpur Vs.
Bhagwan Das (D) by L.Rs., reported in AIR 2008 SC 2139,
Balbir Singh and another Vs. Gurbachan Kaur and others,
reported in 1994 Supp (2) SCC 545 (1), and Bhaurao
Dagdu Paralkar Vs. State of Maharastra and others,
reported in AIR 2005 SC 3330 and accordingly sought for
setting aside the impugned Judgment and decree of the trial
Court.
11. Per contra, Sri. A.K.Mahantshettar, learned counsel
appearing for the respondent No.3 to 8 and 12, supported the
impugned judgment and decree passed by the Trial Court and
further argued that, the suit itself is not maintainable as there
is no cause of action for the plaintiffs to challenge the sale
deeds executed by the father of the plaintiff No.1 and
defendant Nos.3 to 11 in favour of defendant Nos.14 and 15. It
is the principal submission of the learned counsel appearing for
the respondents that, there is no pleadings on record in the
suit, particularly refers to paragraph No.8 of the plaint and
argued that the entire case as understood by the plaintiffs,
seeking relief of partition and separate possession, do not
confer relief to the plaintiffs and as such, sought for dismissal
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of the appeal. He refers to the Judgment of this Court in the
case of Mr. Syed Basheer Malik and another Vs. Smt.
Jameela Begum and others, reported in ILR 2016 Kar. 842
and accordingly sought for dismissal of the appeal.
12. In the light of the submissions made by the learned
counsel for the parties, we have carefully examined the findings
recorded by the trial Court and perused the original records.
13. Having heard the learned counsel appearing for the
parties and taking into consideration the grounds urged in the
Memorandum of Appeal, the following points arise for
consideration:
(i) Whether the finding recorded by the trial
Court on Issue No.2 in O.S.No.35/2016 is just and
proper ?
(ii) Whether the Judgment and decree passed
by the trial Court is justifiable?
(iii) What order?
14. Having taken note of the submission made by the
learned counsel appearing for the parties and in order to
understand the relationship between the parties, the following
genealogical tree is extracted as under:
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Genealogical Tree
Herusab.[Dead]
Baksharsab. Allisab. Rajesab.
[Dead] [Dead] [Dead]
Hasanmyia
[Deft No.13.]
Rajesab Molasab. Allabaksh
[Deft No.3] [Deft No.4] [Dead]
Kairunbi Baballi Allawali
[Deft No.1] [Deft No.2] [Plff No.1.]
Shaheedabi. Raziya. Bibi Zehara. Mohammad Jafar. Kouser Banu.
[Plff.2] [Plff.3] [Plff.4] [Plff.5] [Plff.6]
Fathima. Allisab. Khatundbi. Begaum. Basira. Rehana.
[Deft.5] [Deft.6] [Deft.7] [Deft.8] [Deft. 9] [Deft. 10]
Mohammad Allabaksh Afasana.
[Deft. 11.] [Deft. 12.]
15. It is evident from the genealogical tree, referred to
above that the parties are governed by Mohammadan Law. The
succession in the family shall commence only after the death of
the owner of the property in question. It is also not in dispute
that, late Herusab died leaving behind three children namely
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Bhaksharasab (father of plaintiff No.1), Alisab (father of
defendant Nos.3 and 4) and Rajesab (father of defendant
No.13). Baksharasab had three children namely Khairunbi
(defendant No.1), Babaali (defendant No.2) and Alla Walli
(plaintiff No.1). Plaintiff Nos.2 to 6 are the children of plaintiff
No.1. Alisab had three children namely Rajesab (defendant
No.3), Moulasab (defendant No.4) and Allabaksha (died leaving
behind defendant Nos.5 to 12). It is also not in dispute that, the
Bhaksharasab along with defendant Nos.3 to 11 have jointly
executed the registered sale deeds dated 20.04.2010 and
16.04.2010 in favour of the defendant Nos.14 and 15 as per
Ex.P.3 and Ex.P.4, respectively. The arguments of the plaintiffs
that though there is execution of registered sale deeds,
however, no sale consideration has taken place between the
vendor-father of the plaintiff No.1 with the purchasers - the
defendant Nos.14 and 15. In this regard, we have carefully
examined the recitals in the sale deeds produced at Ex.P.3 and
Ex.P.4 wherein, cheque bearing No.372525 dated 05.02.2008
of Syndicate Bank, Vishweshwara nagar Branch, Hubballi, for
sum of Rs.9,00,000/- has been received by the Vendors. In this
regard, Ex.D.9 would indicate that, the sale consideration has
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been made in favour of one H.R.Shaikh for sum of
Rs.9,00,000/- on 07.02.2008 (Ex.D.9(a)). It is evident from
Ex.D.9(b) that the said cheque has not been cleared on account
of over drawal. In the back drop of these aspects, it is not in
dispute that the sale deeds were executed and registration has
been made by the competent authority. The said sale deeds are
executed during 2008 and thereafter the father of the plaintiff
was alive and as such, the plaintiffs or their father -
Bhaksharasab had not taken any steps to issue notice to the
defendant Nos.14 and 15 and further there is no suit or any
claim made by the executants of the sale deed against the
purchasers for want of consideration. We also find force in the
submission made by the learned counsel appearing for the
respondents that, there is no averment in the plaint with regard
to challenging the aforementioned sale deeds on the ground of
want of consideration. Perusal of the paragraph Nos.7 and 8 of
the plaint would indicate that, the plaintiffs have challenged the
aforementioned sale deeds on the ground of concoction and
urged as forged documents and not for alleging want of
consideration amount. In that view of the matter, as there is no
pleading in the plaint relating to non-transfer of consideration
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between the vendor and the purchaser, the plea made by the
plaintiff cannot be accepted. At this juncture, it is relevant to
cite the Judgment of this Court in the case of Syed Basheer
Malik (supra) paragraph No.32, reads as under:
"32. The plaintiffs have filed the suit for partition
and separate possession of their legitimate share in all
the plaint schedule properties. On the date the suit was
filed, they had not impleaded defendants-9 and 10, as
they had not acquired any interest in the schedule
property. It is only during the pendency of the
proceedings, defendant-9 acquired interest in the
schedule property under the two sale deeds Ex.D-22
dated 28.12.1986 and Ex.D-66, which is dated
15.12.1987. On coming to know of the said sale deeds
being executed by the 5th defendant in their favour during
the pendency of the proceedings coupled with the fact
that they were in possession of the property, the plaintiffs
filed application to implead them as parties. No doubt in
the affidavit filed in support of the application, they have
characterized the sale deeds as sham transaction,
collusive and fraudulent. The plaintiff is not the executant
of the sale deed. The executant of the sale deed is the 5th
defendant. Ex.D-22 was executed by her power of
attorney holder and it is then executed by her. After
execution of the said two sale deeds, defendants-1 to 5
have filed a common written statement on 12.11.1987. In
the written statement filed on that day, the 5th defendant
has not uttered a word about these two sale deeds. It is
not her case that she has not executed the sale deed nor
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she has taken any steps to get the sale deed annulled.
The 9th defendant has stepped into the box, he has
produced Ex.D-22 the original sale deed and Ex.D-66 the
certified copy of the sale deed. When the said two sale
deeds are produced through the 9th defendant, he was not
cross examined on behalf of 5th defendant denying the
execution of the sale deed or the signature found in the
sale deed. The sale deed is registered and one is a
original sale deed and another certified copy. The sale
deed is not a document which requires attestation.
Therefore when the sale deed after execution is registered
in accordance with the provisions of Indian Registration
Act, 1908, unless its execution by the person by whom it
purported to have been executed is denied, the
production of the said document is sufficient to prove the
said document. Therefore the contention that the sale
deed is not proved is without any substance."
16. It is also relevant to cite the Judgment of the
Hon'ble Apex Court in the case of Vidhyadhar Vs. Mankikrao
and another reported in AIR 1999 SC 1441, at paragraph
No.35 to 42, wherein, it is held as follows:
"35. 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
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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.
36. 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 Gayatri Prasad v. 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 v. Punau, AIR 1961 Madh Pra 176 : ILR
(1960) MP 614.
37. 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 presenti or in
futuro. The intention is to be gathered from the recital in
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the sale deed, conduct of the parties and the evidence on
record.
38. Applying these principles to the instant case, it
will be seen that defendant No. 2 executed a sale deed in
favour of the plaintiff, presented it for registration,
admitted its execution before the Sub-Registrar before
whom remaining part of the sale consideration was paid
and, thereafter, the document was registered. The
additional circumstances are that when the plaintiff
instituted a suit on the basis of his title based on the
aforesaid sale deed, defendant No. 2, who was the vendor,
admitted in his written statement, the whole case set out
by the plaintiff and further admitted in the witness box
that he had executed a sale deed in favour of the plaintiff
and had also received full amount of consideration. These
facts clearly establish that a complete and formidable sale
deed was executed by defendant No. 2 in favour of the
plaintiff and the title in the property passed to plaintiff.
The findings recorded by the High Court on this question
cannot, therefore, be upheld.
39. The judgment of the High Court on this point is
also erroneous for the reason that it totally ignored the
provisions contained in Section 55(4)(b) of the Transfer of
Property Act which are set out below:
"55. In the absence of a contract to the
contrary the buyer and seller of immoveable
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:
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(1) to (3)...............
(4) The seller is entitled-
(a) .................
(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 non- payment, 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.
(5) to (6) . . . . . . . . . . . . . .
40. Clause (b) extracted above provides that where
the ownership of the property is transferred to the buyer
before payment of the whole of the sale price, the vendor
is entitled to a charge on that property for the amount of
the sale price as also for interest thereon from the date of
delivery of possession. Originally, there was no provision
with regard to the date from which interest would be
payable on the amount of unpaid purchase money. The
Special Committee which suggested an amendment in this
Section gave the following reason:-
"This clause is also silent as to the date from which
the interest on the unpaid purchase money should run. It
seems fair that it should run from the date when the buyer
is put in possession."
It was on the recommendation of the Special Committee
that the words "from the date on which possession has
been delivered" were inserted into this clause by Section
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17 of the Transfer of Property (Amendment) Act, 1929 (XX
of 1929).
41. 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 v. Burton (1847) 74
RR 633 : 1 Exch.189. This clause confers statutory
recognition on the English Doctrine of Equitable Lien. As
pointed out by the Privy Council in Webb v. Macpherson,
(1903) 30 Ind App 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 v.
Rathnasabhapathi Chettiar, AIR 1953 Madras 821;
Shobhalal Shyamlal Kunni v. Sidhelal Halkelal Bania, AIR
1939 Nagpur 210 and Basalingaya Revanshiddappa v.
Chinnaya Karibasappa, AIR 1932 Bombay 247).
42. 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.4,500/- 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."
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The said aspect was further reiterated by the Hon'ble
Supreme Court in the case of Janak Dulari Devi Vs. Kapildeo
Roy, reported in AIR 2011 SC 2521 at paragraph No.8, held
as follows:
"Re: Questions (ii) and (iii)
8. Where the intention of the parties is that passing
of title would depend upon the passing of consideration,
evidence is admissible for the purpose of contradicting the
recital in the deed acknowledging the receipt of
consideration. In Bishundeo Narain Rai vs. Anmol Devi &
Ors. [1998 (7) SCC 498] : (AIR 1998 SC 3006 : 1998 AIR
SCW 2860), this Court had occasion to consider the
question as to when the ownership and title in a property
will pass to the transferee, under a deed of conveyance.
This Court observed :
"Section 8 of the Transfer of Property Act
declares that on a transfer of property all the
interests which the transferor has or is having at
that time, capable of passing in the property and in
the legal incidence thereof, pass on such a transfer
unless a different intention is expressed or
necessarily implied. A combined reading of Section
8 and Section 54 of the Transfer of Property Act
suggests that though on execution and registration
of a sale deed, the ownership and all interests in
the property pass to the transferee, yet that would
be on terms and conditions embodied in the deed
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NC: 2024:KHC-D:4843-DB
indicating the intention of the parties. It follows
that on execution and registration of a sale deed,
the ownership title and all interests in the property
pass to the purchaser unless a different intention is
either expressed or necessarily implied which has to
be proved by the party asserting that title has not
passed on registration of the sale deed. Such
intention can be gathered by intrinsic evidence,
namely, from the averments in the sale deed itself
or by other attending circumstances subject, of
course, to the provisions of Section 92 of the
Evidence Act, 1872."
(Emphasis supplied)
17. Following the declaration of law made by the
Hon'ble Supreme Court in the aforementioned Judgments, it is
not in dispute that, the details of the cheque relating to transfer
of consideration is made in the registered sale deed. If at all
there is no actual payment of consideration, as argued by the
learned counsel appearing for the appellant, it was always open
for the Vendor (father of the plaintiff) to repudiate the contract
with the purchaser of the property (respondents herein) and if
such being the case, father of plaintiff No.1 and defendant
Nos.3 to 11 ought to have recourse to legal action against the
defendant Nos.14 and 15. Nothing is happened for nearly eight
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NC: 2024:KHC-D:4843-DB
years till the filing of suit, that too, not by the father of plaintiff
No.1 and defendant Nos.3 to 11. The circumstances of these
undisputed facts would demonstrate that, plaintiffs were unable
to prove the case on merits. Thus, we are of the opinion that,
the submission made by the learned counsel appearing for the
appellant cannot be accepted as it is evident from Ex.D.9 that
the details of the cheque has been shown in the registered sale
deed. It is also not in dispute that, formalities relating to
registration of the property has been effected before the
competent jurisdictional Sub-Registrar and therefore, we do not
find any merit in the submission made by the learned counsel
appearing for the appellants and further, the Judgments
referred to by the learned counsel for the appellants are
factually distinct to the facts in the present suit.
18. It is also to be noted that, the plaintiff has filed
application in I.A.No.1/2019 seeking amendment of the plaint.
It is well established principle in law that, the Court cannot
permit the applicant to amend the pleadings at the belated
stage in the suit in terms of proviso to Order VI Rule 17 of CPC.
In the case on hand, the plaintiffs sought amendment of the
plaint in the appellate stage, which is impermissible under law
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NC: 2024:KHC-D:4843-DB
unless there is foundation has been made in the pleadings on
record. It is to be noted that, the plaintiff has not taken any
plea urging the non-consideration of sale amount in the plaint
and therefore, as there is no foundation in the plaint itself, the
arguments advanced by the learned counsel for the appellant,
permitting him to amend the plaint in the appellate stage as
same is far from scope and ambit of Order VI Rule 17 of CPC.
Even otherwise the nature of the suit itself would change if the
application is allowed. It is also to be noted that, when the
alleged sale deeds are executed between the father of the
plaintiff along with the defendant Nos.3 to 11 with the
defendant Nos.14 and 15 in accordance with the provisions of
Indian Registration Act, as the executants themselves have not
challenged the aforementioned sale deeds and therefore, same
cannot be permitted to be challenged by the plaintiffs after the
death of the executant - plaintiff No.1, that too, after lapse of
eight years and therefore, the finding recorded by the trial
Court, rejecting the claim made by the plaintiffs is just and
proper.
19. We have also re-appreciated the cross-examination
of P.W.1 on 21.07.2017, wherein P.W.1 deposed as follows:
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NC: 2024:KHC-D:4843-DB
"3. ¨sÀPÁëgÀ¸Á§ ±ÉÃR 2012gÀ°è ªÀÄgÀt ºÉÆA¢gÀÄvÁÛgÉ.
¢:8.2.2008gÀAzÀÄ ¨sÀPÁëgÀ¸Á§ EzÁÝ. ¢: 8.2.2008gÀAzÀÄ ¨sÀPÁëgÀ¸Á§
zÁªÁ J ±ÉqÀÆå¯ï D¹ÛAiÀÄ£ÀÄß ¥ÀæwªÁ¢ 14 ªÀÄvÀÄÛ 15gÀªÀjUÉ JgÀqÀÄ Rjâ
¥ÀvÀæzÀ ªÀÄÄSÁAvÀgÀ vÀ£ßÀ D¹ÛAiÀÄ ªÉÄð£À ºÀPÄÀ Ì£ÄÀ ß ªÀiÁgÁl ªÀiÁrzÁÝ£É
JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj ¤.¦.3 ªÀÄvÀÄÛ ¤.¦.4 £Á£ÀÄ ºÁdgÀÄ¥Àr¹zÉÝãÉ
JAzÀgÉ ºËzÀÄ CªÀ£ÀÄß £ÁªÀÅ ªÀiÁrPÉÆnÖ®è JAzÀÄ ¸ÁQë £ÀÄrAiÀÄÄvÁÛ¼É. ¸ÀzÀj
¨sÀPÁëgÀ¸Á§ Rjâ ¥ÀvæÀPÌÉ ¸À» ªÀiÁrPÉÆnÖzÁÝ£Æ
É Ã E®èªÉÇà UÉÆwÛ®è DzÀgÉ
£ÁªÀÅ ªÀiÁrPÉÆnÖ®è. £À£ßÀ UÀAqÀ C¯ÁèªÁ° ºÉ¨âÉlÄÖ gÀÄdÄ ºÁPÀÄwÛzÁÝ JAzÀgÉ
¸ÀjAiÀÄ®è ¸À» ªÀiÁqÀÄwÛzÝÀ ."
(Emphasis supplied)
At paragraph No.4 of the cross-examination of P.W.1
deposed as follows:
"¸ÀzÀj ¥ÀæwªÁ¢ 14 ªÀÄvÀÄÛ 15 Rjâ ªÀåªÀºÁgÀPÉÌ ¸ÀA§AzÀ¥ÀlÖAvÉ
AiÀiÁgÁjUÉ JµÀÄÖ ºÀt PÉÆnÖzÁÝgÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. CzÉà jÃw ZÉPÀÌ
ªÀÄÄSÁAvÀgÀ AiÀÄgÁjUÉ JµÀÄÖ JµÀÄÖ ºÀt PÉÆnÖzÁÝgÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è, ¤¦2
gÀ°è ¨sÀPÁëgÀ¸Á§ »ÃgÀĸÁ§ vÀAzÉ gÁeÉøÁ§ JAzÀgÉ F ªÉÄÃ¯É ºÉýzÀ ¨sÀPÁëgÀ¸Á§
JAzÀgÉ ºËzÀÄ, ¸ÀzÀj ¨sÀPÁëgÀ¸Á§UÉ ºÉZÀ.DgÀ. ±ÉÃR JAzÀÄ ¨ÁåAPÀ SÁvÉ EzÉ
JAzÀgÉ CzÀÄ ¸ÀļÀÄî JAzÀÄ ¸ÁQë £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÀzÀj ¨sÀPÁëgÀ¸Á§UÉ »ÃgÀĸÁ§
JAzÀÄ ¸ÀºÁ PÀgÉAiÀÄÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÁQë »ÃgÀĸÁ§ ¨sÀPÁëgÀ¸Á§ ±ÉÃR JAzÀÄ
PÀgÉAiÀÄÄwÛzÀÝgÀÄ JAzÀÄ ¸ÁQë £ÀÄrAiÀÄÄvÁÛgÉ."
(Emphasis supplied)
20. Perusal of the aforementioned deposition of P.W.1
makes it clear that, the father of the plaintiff was also called as
Shaik and as, P.W.1 herself admits that, the Bhaksharasab was
known as Shaik also, and therefore, we do not find any
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NC: 2024:KHC-D:4843-DB
perversity in the Judgment and decree passed by the trial
Court. The points for consideration referred to above favours
the defendants and the plaintiffs failed to establish their case
that there is no transfer of consideration between the
executants and the defendant Nos.14 and 15. In the result, we
pass the following:
ORDER
1) Regular First Appeal is dismissed;
2) Judgment and decree dated 12.12.2017 passed
in Original Suit No.35/2016 on the file of the II
Additional Senior Civil Judge and JMFC Court,
Hubballi, is hereby confirmed and suit of the
plaintiff is dismissed.
3) Pending I.A.No.1/2019 is consequently
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
