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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 58 of 2002 Date of Decision: 12.09.2023
Devinder Kumar Sharma
...Appellant Versus Mehar Chand (through LRs) and others ...Respondents
Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Bimal Gupta, Sr. Advocate with Mr. Varun Thakur, Advocate. For the Respondents : Mr. Maan Singh, Advocate for respondents No.1(b) to 1(e).
Rakesh Kainthla, Judge (Oral)
The present appeal is directed against the judgment & decree dated 5.11.2001, passed by learned District Judge, Kullu, H.P., vide which the appeal filed by the respondent (plaintiff before the learned Trial Court) was allowed and the judgment and decree dated 12.12.2000, passed by learned Senior Sub Judge, Kullu was set-aside. (Parties shall hereinafter be referred to in
1 Whether reporters of Local Papers may be allowed to see the judgment?
2 the same manner as they were arrayed before the learned Trial Court for convenience). 2.
Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that the sale deed dated 19.1.1995 of the suit land mentioned in para-1 of the plaint was without consideration, a result of fraud and misrepresentation and not binding upon the plaintiff. A consequential relief of permanent prohibitory injunction for restraining the defendant from interfering with the ownership and possession of the plaintiff and restraining him from getting Mutation No. 1779 attested in his favour was also sought. In the alternative, it was prayed that the defendant has failed to complete the building as per the agreement dated 19.1.1995 and the sale deed stood revoked and cancelled; hence, the plaintiff be declared the owner of the suit land. A consequential relief of permanent prohibitory injunction for restraining the defendant from interfering with the possession of the plaintiff was also sought. In the alternative, the relief of possession of the suit land and recovery of ₹50,000/- along with interest @18% was also prayed.
3 3.
It was pleaded that the plaintiff is an owner in possession of the suit land. The plaintiff and his wife are illiterate persons, whereas the defendant is a rich and influential person. He is a contractor with HPSEB and has taken various contracts in Manikaran Valley. The plaintiff intended to construct a building on his land. The defendant approached the plaintiff and his wife with an assurance to raise the construction on the transfer of the suit land. It was agreed that the defendant would construct a pucca RCC building in lieu of the sale consideration. The plaintiff and defendant arrived at a compromise. The plaintiff agreed to transfer the suit land through a registered instrument in favour of the defendant and the defendant agreed to construct an RCC building consisting of three rooms each having 10 ft. x 12 ft in length and breadth for the plaintiff at his (defendant’s) expenses. Two rooms were to be completed and furnished, while the third room was not to be furnished. It was agreed that the construction would be completed on or before 31.7.1995. The plaintiff would hand over the possession of the suit land to the defendant and mutation was to be attested thereafter in the name of the defendant. the defendant procured the Sale Deed No.67, dated 19.1.1995 from
4 the plaintiff, his GPA Durga Devi showing therein that plaintiff has sold the suit land in favour of the defendant for a sale consideration of ₹19,000/-. However, no sale consideration passed and the construction was to be carried out in lieu of the sale consideration. A separate document was executed between the parties in which the plaintiff admitted that no sale consideration had passed and construction would be raised in lieu of the sale consideration. The defendant failed to construct the building as agreed by him on or before 31.7.1995; hence, the sale deed has become void due to the failure of the sale consideration. The defendant did not carry out the construction despite the receipt of the notice and repeated requests; hence the suit was filed to seek the reliefs mentioned above. 4.
The suit was opposed by filing a written statement, taking preliminary objections regarding lack of maintainability and cause of action, the registered sale deed incapable of being revoked by unregistered document, the plaintiff being out of possession, the suit having not been properly valued for court fees and jurisdiction, the plaintiff being estopped to file the present suit by his acts and conduct and the plaintiff having not come to the Court with clean hands. The contents of the plaint
5 were denied on merits. It was asserted that the defendant is the owner in possession of the suit land after the execution of the sale deed and the plaintiff has no concern with the same. It was specifically denied that the defendant ever approached the plaintiff for constructing his house. It was asserted that the plaintiff and defendant had negotiations and the plaintiff had agreed to sell the suit land to the defendant for a sale consideration of ₹ 19,000/-. The plaintiff executed the sale deed in favour of the defendant on 19.1.1995 and sold the suit land to the defendant for ₹ 19,000/-. Sale consideration was paid by the defendant to the plaintiff and the receipt was acknowledged by the plaintiff in the sale deed. The possession of the suit land was also delivered to the defendant. The defendant agreed to construct the building for the plaintiff on a contract basis for a consideration of ₹ 19,000/-. The defendant constructed the building as per the instruction of the plaintiff and his wife. The plaintiff failed to pay the amount of ₹ 19,000/- to the defendant despite repeated requests. The agreement was not executed as per the terms and conditions agreed between the parties and it was procured by playing fraud and misrepresentation in connivance with the scribe and marginal witnesses. The suit was
6 filed without any basis; hence, it was prayed that the suit be dismissed. 5.
A replication denying the contents of the written statement and affirming those of the plaint was filed. 6.
The learned Trial Court framed the following issues on 3.01.1997:- 1. Whether the sale deed No.67, dated 19.1.1995 was executed on the condition that the defendant shall construct three three-room house free of cost as consideration of amount for transfer of suit land in favour of the defendant? OPP. 2. Whether consideration of ₹19,000/- was written in the agreement in order to meet the requirement of stamp duty as alleged? OPP. 3. Whether the defendant has failed to construct the house as per agreement? OPP. 4. If issue No.3 is proved whether the sale deed dated 19.1.1995 is liable to be set aside? OPP. 5. Whether the sale deed dated 19.1.1995 is a result of fraud and misrepresentation and not binding on the plaintiff? OPP. 6. Whether the plaintiff is entitled to the relief of injunction as prayed? OPP. 7. Whether the plaintiff is entitled for the recovery of ₹50,000/- with interest at the rate of 18% as alleged? OPP.
7 8. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 9. Whether the plaintiff has no cause of action to file the present suit? OPD. 10. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 11. Relief. 7.
The parties were called upon to produce the evidence and the plaintiff examined Bhuvneshwar Dutt (PW-1), Durga Devi, General Power of Attorney of the plaintiff (PW-2) and Hukam Singh (PW-3). The defendant examined Bhuvneshwar Dutt (DW-1), Dola Ram Thakur (DW-2) and himself (DW-3). 8.
The Learned Trial Court held that the sale deed was executed by Durga Devi, General Power of Attorney of the plaintiff in favour of the defendant. This fact was duly proved by the statements of the scribe and Sh. Dola Ram. Durga Devi had also acknowledged the receipt of the sale consideration of ₹ 19,000/- and subsequently executed an unregistered agreement. However, the unregistered document will not supersede/revoke the registered sale deed. No condition was incorporated in the sale deed that the house was to be constructed in lieu of the sale consideration. Therefore, the learned Trial Court answered
8 Issues No.1 to 10 in negative and dismissed the suit of the plaintiff. 9.
Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by learned District Judge, Kullu. Learned First Appellate Court held that the execution of the agreement (Ex.P- 1) was duly proved. There was no material on record to show that sale consideration was paid by the vendee to the vendor. Dola Ram Thakur and the scribe did not state that the sale consideration was paid in their presence. The learned Trial Court did not discuss the agreement (Ex.P-1) executed between the parties. This agreement showed the intention of the parties that no sale consideration had actually passed between the parties and it was agreed that the defendant would construct a house of the plaintiff in lieu of the sale consideration. The house was not constructed; therefore, there was a failure of consideration and the sale deed was not valid. Hence, the appeal was allowed and the plaintiff was declared to be the owner in possession of the suit land. The relief of injunction restraining the defendants from interfering with the possession of the plaintiff was also granted.
9 10.
Being aggrieved from the judgment and decree passed by the learned First Appellate Court below, the present appeal has been filed asserting that the learned First Appellate Court erred in reversing the well-reasoned judgment of the learned Trial Court. Learned First Appellate Court failed to appreciate that the defendant had not denied the carrying out of the construction. Learned First Appellate Court erred in declaring the sale deed (Ex. DA) as null and void in view of the agreement (Ex.P1), which was an unregistered document. A registered document cannot be revoked or cancelled by an unregistered document; hence, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside. 11.
The appeal was admitted on the following substantial questions of law on 22.2.2002:- 1. Whether the learned Appellate Court below has misread, misconstrued, misinterpreted the oral as well as documentary evidence on record of the case and has come to conclusion contrary on record while decreeing the suit of the plaintiff? 2. Whether a registered document Ex.DA sale deed dated 19.1.1995 can be revoked or cancelled by unregistered agreement Ext.P1 at the instance of any party?
10 3. Whether the learned Appellate Court has wrongly decreed the suit of the plaintiff in the absence of plaintiff not stepping into witness box in support of his case and mere deposition of G.P.A. is sufficient to prove the case of the plaintiff? 12.
I have heard Mr Bimal Gupta, learned Sr. Advocate, assisted by Mr. Varun Thakur, Advocate, for the appellant- defendant and Mr. Maan Singh, learned Counsel, for respondents No. 1(b) to 1(e), legal representatives of the original plaintiff. 13.
Mr. Bimal Gupta, learned Senior Counsel for the appellant-defendant submitted that the learned First Appellate Court erred in relying upon the agreement to invalidate the registered sale deed. It is not permissible to cancel a registered document by executing an unregistered document. The General Power of Attorney of the plaintiff had acknowledged the payment of the sale consideration and learned First Appellate Court erred in holding that no sale consideration had passed between the parties. The agreement (Ex.P-1) was executed under pressure from the defendant and it does not show that no sale consideration had passed between the parties as was held by the learned First Appellate Court. Therefore, he prayed that the
11 present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside. 14.
Mr. Maan Singh, learned Counsel for respondents No.1 (b) to 1(e), the legal representatives of the original plaintiff supported the judgment and decree passed by the learned First Appellate Court. He submitted that it was duly proved by the agreement (Ex.P-1) executed on the same day that no sale consideration had passed. The defendant had agreed to raise the construction of the house in lieu of the sale consideration. He had failed to do so; therefore, the learned First Appellate Court had rightly held that there was a failure of consideration due to which the sale deed was bad. In any case, once the parties stipulated by executing an agreement (Ex.P-1) that the sale deed would be deemed to be void due to the failure of the consideration, no error can be found with the judgment of learned First Appellate Court holding that the sale deed was void. He prayed that the present appeal be dismissed. 15.
I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
12 Substantial Question of Law Nos.1 and 2: 16.
These substantial questions of law are interconnected and are being taken up together for convenience. 17.
The plaintiff asserted that no sale consideration had passed between the parties and it was wrongly mentioned in the sale deed that the sale consideration had passed. Durga Devi, General Power of Attorney, (PW-2) denied in her cross- examination that she had acknowledged the correctness of ₹19,000/- in the presence of Tehsildar, Bhuvneshwar or other witnesses. She also admitted the correctness of the sale deed but volunteered to say that it was correct after writing the agreement. 18.
The sale deed (Ex. DA) is a registered document. It clearly mentions that the sale consideration of ₹ 19,000/- was received from Devinder Kumar. There is an endorsement of the Sub Registrar on the back of the sale deed mentioning that the sale deed was read over and explained to the executant who acknowledged its correctness in the presence of the Sub Registrar. 19.
It was laid down by this Court in Kripa Ram vs. Smt.
13 Maina 2002(2) Shim. L.C. 213, that there is a presumption regarding the correctness of the endorsement made on the registered documents. It was held:- “10. Section 60 of the Registration Act specifically provides that the certificate endorsed on the document, registered by the Registrar, shall not only be admissible in evidence for the purpose of proving that document has duly been registered in the manner provided under the Act but also that the facts mentioned in the document referred to in Section 59 have taken place as mentioned therein. It is now settled that the presumption of due execution of a document arises from the endorsement of the Sub Registrar under Section 60 of the Act. As far back as in 1928 Privy Council in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60(2) read with Section 115 of the Evidence Act held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of the transaction. In that case, the plaintiff alleged that his father and brothers, with the intention of defrauding the plaintiff of his legitimate share in the family properties, entered into a fraudulent collusive partition. The Trial Court found that the plaintiff's case was proved and he decreed the suit. In the appeal, it was held that the plaintiff failed to make out the alleged fraud and allowed the appeal. The decree of the Trial Court was set aside. The Subordinate Judge had found that the partition was unequal because the land allotted to the plaintiff was less than that allotted to the other brothers. It was found that contemporaneously with the partition, some land that fell into the share of plaintiff Karuppa were conveyed to his second wife Nachakkal by a registered sale deed. Nachakkal gave evidence that the transaction was bogus, as she never paid the
14 consideration for the sale though she admitted the execution of the sale deed before the Registrar. Her story that she was ignorant of the nature of the transaction, it was held, cannot be accepted as she had admitted the execution of the sale deed before the Registrar. 11. A Division Bench of this Court Kanwarani Madna Vati and another v. Raghunath Singh and others, AIR 1976 HP4I, interpreting the provisions of Section 62 of the Registration Act held that there is a presumption of correctness of the document if its execution is admitted before the Registrar. The Division Bench in para 20 observed: "Under Section 60(2) of the Registration Act, the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in Section 59 have occurred as therein mentioned. Therefore, there is a presumption, which attaches to the correctness of the endorsements made on the document by the Registering Officer. These endorsements show the presentation of the document personally by Smt. Madna Vati for registration. She was identified by Kr. Jowala Singh and her signatures were also obtained by the Registering Officer on both the endorsements, i.e., the endorsement of the presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this, it was necessary for defendant No.2 to have produced the Sub Registrar. She did not produce him in the witness box. Therefore, the presumption of correctness shall become conclusive." 12. In the present case as noticed earlier, there is an endorsement of the Sub Registrar to the effect that the contents were read over and explained to the vendor-
15 plaintiff Maina Devi and, therefore, the presumption is that the contents of the sale deed were read over and explained to her. The Sub Registrar (DW3) himself is categorical in his evidence that the contents of the sale deed were read over to Maina Devi. He duly proved the endorsements. Therefore, in the circumstances, learned first Appellate Court was not right while reversing the findings of the Trial Court on the grounds that the contents of the sale deed were not read over or explained to the plaintiff. 13. A Single Judge of this Court in Rewat Ram Sharma v. Munshi Ram (RSA No.242 of 1994) decided on December 13, 2001, relying upon Kanwarani Madya Vati, Sennimalai Goundan (supra) and Dinesh Chandra Guha v. Satchindannanda Mukherji, AIR 1972 Orissa235, held that admission of signatures on the endorsement made by the Registrar by an executant of the document in the absence of anything else to the contrary, would lead to the inference that the plaintiff was present before the Sub Registrar when the document was presented for registration and the onus to rebut the presumption under Section 60(2) the Registration Act was heavily on the plaintiff which the plaintiff did not discharge. In that case, the case of the plaintiff was that he had borrowed some money from the defendant and had agreed to mortgage his property in favour of the defendant. The plaintiff was taken to the Tehsil Headquarters for the purpose of execution of the mortgage deed. His signatures were obtained by the defendant by making him believe that it was a mortgage deed and later on, the defendant proclaimed that the property has been gifted to the defendant and the plaintiff realized that instead of the mortgage deed, a gift deed was executed from him fraudulently by the defendant. He repudiated the gift deed and filed a suit that the gift deed was a result of misrepresentation, fraud and undue influence on the part of the defendant. It is in this context that the Court held that Section 60(2) of the Evidence Act raises presumption
16 as to the correctness of the endorsement made on the document by the Registering Officer.” 20.
Thus, in view of the binding precedent of this Court; the learned First Appellate could not have ignored the endorsement of the Sub Registrar and the acknowledgement made in the sale deed regarding receipt of the consideration. 21.
Learned First Appellate Court heavily relied upon the agreement (Ex.P-1) to hold that it corroborated the version of the plaintiff regarding the absence of the consideration. The learned First Appellate Court freely translated the contents of the agreement (Ex.P-1) in para-16 of its judgment as the cost of the said house was received by the defendant today and would be deemed equal to the price of the land. In the original agreement, the exact words used are “Is kaam ki kimat mujhe aaj hi prapat hui he jo ki aaraji keemat ke barabar tassavur hogi”. (I have received the sale consideration today which will be considered equivalent to the sale consideration). This document cannot be read to mean that no sale consideration was paid rather it shows that the sale consideration was paid and an equivalent amount was paid by the plaintiff to the defendant for the construction work agreed
17 to be done by him. Therefore, learned First Appellate erred in holding that no sale consideration had passed. 22. The witness Dola Ram (DW-2) stated that the contents of the sale deed were read over and explained to Durga Devi, who acknowledged them to be correct. Similarly, Bhuvneshwar (DW-1) stated that he had written the sale deed as per the wishes of Durga Devi. It was read over and explained to Durga Devi who put the signatures in acknowledgement of its correctness. Learned First Appellate Court proceeded to hold that since both of these witnesses had not deposed about the passing of the consideration, therefore, an inference could be drawn that no consideration had passed. The sale deed does not mention that the sale consideration was passed at the time of the execution of the sale. It only mentions that ₹19,000/- was received by the executant, Durga Devi. Therefore, no inference could have been drawn by the omission to mention the payment of consideration by these witnesses. 23.
Learned First Appellate Court proceeded on the basis that the sale consideration was in the form of the construction of the house by the defendant and failure to construct the house
18 will make the sale deed void. This reasoning is not correct. The learned First Appellate Court had itself noticed the definition of the sale in para 21 of its judgment and proceeded to hold in para 22 that the sale is the transfer of the ownership from the vendor to the vendee for the price paid or partly paid. Therefore, the sale deed in which the sale consideration is promised to be paid in future will not be bad because the sale consideration was not paid after its execution. The remedy of the seller in such a case would be to sue for the sale consideration as laid down by the Hon’ble Supreme Court in Kaliaperumal v. Rajagopal, (2009) 4 SCC 193 : (2009) 2 SCC (Civ) 101: 2009 SCC OnLine SC 395, wherein it was observed at page 196: “16. Sale is defined as being a transfer of ownership for a price. In a sale, there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovable property of the value of ₹ 100 or more and that is by a registered instrument. 17. It is now well settled that payment of the entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of the Transfer of Property Act, 1882 (“the Act”, for short) defines “sale” as “a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised”. If the intention of the parties was that the title should pass on execution and registration, the title would pass to the
19 purchaser even if the sale price or part thereof is not paid. In the event of non-payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act.” 24. A similar view was taken by this court in Gian Chand vs. Charanjit Singh Latest HLJ 2011(2) (HP) 914 = 2011(3) Him. L.R. 1498 wherein it was observed: 20. The learned Single Judge in Dulana Dei alias Dolena Dei Vs. Balaram Sahu and two others AIR 1993 Orissa 59 has held that when a sale deed of immovable property is executed and registered, there is a 'prima facie' transfer of title to the vendee. The mere non-payment of consideration will not arrest the passing of title, as the sale of immovable property may be effected in exchange for the price paid or promised to be paid. The learned Single Judge has held as under: "11. In this case, the English rendition of the sale
deed may be noted which is as follows:- "Having sold the scheduled land on receipt of Rs.3,000/-we have conferred possession and title on the vendee with effect from today after divesting ourselves." This recital in the sale deed admits of no doubt that defendants 1 and 2 had intended to transfer the title in favour of the vendee on the very date of execution of the registered sale deed. That being so, title to the suit land having passed to the mother of the plaintiff on the date of execution of the registered sale deed, Ext. 1, the finding of the appellate Court that non-passing of consideration there was no passing of title cannot be accepted. It follows, therefore, that the suit could not have been
20 dismissed for want of title of the plaintiff." 21. The learned Single Judge in Basanti Mohanty Vs. Brahmanand Das and others AIR 1996 Orissa 86 has held that when there is unambiguous intention of parties indicating passing of title on execution of the deed, non- passing of consideration, cannot invalidate the sale. The learned Single Judge has held as under: "6. Section 54 of the Transfer of Property Act, 1882 (in short, the 'Act') is a part of Chapter III dealing with the sale of immovable property. 'Sale' is defined as being a transfer of ownership for a price. In a sale, there is an absolute transfer of all rights in the property sold. No rights are left in the transferor. The essential elements of a sale are (i) the parties; (ii) the subject matter; (iii) the transfer or conveyance; and (iv) the price or consideration. The word 'price' is used in its ordinary sense as meaning money only. It is used in the same sense as in Section 77 of the Indian Contract Act, 1872 (in short, the 'Contract Act'). As has been observed by the Supreme Court in Commissioner of Income-tax V. Motor and General Stores (P.) Ltd., AIR 1967 SC 200 (sic), though 'price' is not defined in the Act, it is used in the same sense as in the Sale of Goods Act, 1930 (in short, the 'Sale Act'), and means the money consideration for the sale of goods. The presence of a money consideration is an essential element in a transaction of sale. Price is the essence of a contract for sale, and unless the price is fixed, there is no enforceable contract because if no price is named law does not imply, as in the case of a sale of goods, a contract to buy at a reasonable price.
In all sales, it is evident that price is an essential ingredient and that where it is neither ascertained nor rendered ascertainable the contract is void for incompleteness and incapable of enforcement. If the consideration is not money, but some other valuable consideration, it may be an exchange or
21 barter, but not a sale. 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 the deed is registered, whether the price has been paid or not, and the purchaser is entitled to sue for possession although he has not paid the price. This is clear from the words of the section, 'price paid or promised or part paid or part promised'. If the price is not paid the seller cannot on that account set aside the conveyance. We can only sue for the price, and he will have a charge on the property for the unpaid purchase money. This is a non-possessory charge in terms of Section 55(4)(b) of the Act. 7. The factual position needs a reference for the application of the legal position, Muralidhar Mohanty (D.W. 4) is the husband of defendant No. 1. From his evidence it is revealed that on 7.6.1982 his wife defendant No. 1 sold the land to plaintiffs. At 7 p.m. that day they returned home from the Sub- Registrar's office. On 9.6.1982 they purchased stamp paper for execution of a deed of cancellation of the above sale deed. Later, on 10.6.1982 the sale deed dated 7.6.1982 was cancelled by defendant No. 1, vide Ext. 2 and the sale deed transferring the disputed properties in favour of defendant No. 2 was executed and registered by her on the same day under Ext. A. There was actually a gap of one day from the date of execution of registration of the sale deed (Ext. 2), and purchase of stamp paper for cancelling the same deed of conveyance. The intention of the parties as to whether title to a particular property would pass only on payment of the consideration amount or it will pass independent of payment of the consideration amount has to be inferred from the recitals of the document itself. When the recitals of the document are clear and unambiguous on the point of passing of title and payment of consideration, the sole
22 criterion to gather the intention of the parties is to depend on the recitals of the document itself. Where there is ambiguity and uncertainty as to the terms of the agreement between the parties concerning their intention, the conduct of the parties, surrounding circumstances attending the case and evidence adduced on both sides have to be taken into consideration. As observed by this Court in Ramchandra Bihari Lal Firm V. Mathuramohan Naik, AIR 1964 Ori 239; Gurubari Lenka V. Dulani Thakurani, AIR 1971 Orissa 147; and Umakanta Das V. Pradip Kumar Ray, AIR 1986 Orissa 196/1986) 61 Cal LT 480, if the term in the sale deed is not ambiguous, then an external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature. If the intention of the parties is clear as found from the recitals, passing of title is in presenti and not kept in abeyance till full payment of consideration. The recitals regarding the passing of the title, and payment of consideration vide Ext. 2 read as follows: "Today of my free will the scheduled properties are sold and the consideration money will be received after registration at the time of endorsement of registration ticket, and the vendees have been delivered possession and the title has been passed to them as owners. The vendees and their successors in interest would enjoy the property as owners in possession thereof, and get their names mutated in the Revenue records."
The recital in the sale deed is clear and there is no ambiguity. Therefore, there is no question of any external aid being taken to find out the true intention of the parties. The translated terms as referred to above, unequivocally indicate that title
23 passed on execution of the deed, and was not dependent upon passing of consideration. The plaintiffs were put in possession of the suit land, after the execution of the sale deed (Ext.2), and the title also passed. The conclusions of the learned trial Judge are irreversible." 22. The Apex Court in Vidhyadhar Vs. Mankikrao and another, AIR 1999 Supreme Court 1441 has held that the payment of the whole price at the time of execution of the sale deed is not sine qua non to completion of the sale. Their Lordships have held as under: 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 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 the whole of the price at the time of the execution of the sale deed is not a 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 ₹ 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 affect the validity of the sale. It was
24 observed that part payment of consideration by the vendee itself proved the intention to pay the remaining amount of the 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. 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 the 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 the 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 the 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 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: (1) to (3) . . . . . . . . . . . (4) The seller is entitled- (a) . . . . . . . . . . . .
25 (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) . . . . . . . . . . . . . . . . . . . . . . . . . . 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 ₹ 500/- was paid to defendant No. 2 and the balance amount of ₹ 4,500/- was not paid. Since the title in the property had already passed, even if the balance amount of the 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. 25.
Thus, the sale deed could not have been invalidated on the reasoning that there was failure of the future consideration. 26.
This Court held in Brahama Nand v. Roshani Devi, 1988 SCC OnLine HP 1: 1988 SLJ 610: AIR 1999 HP 11 that a registered document cannot be revoked by an unregistered document. It was observed at page 14 :
26 “9-A. It may also be mentioned that the contract of sale by the plaintiff in favour of defendant No. 1 (Ex. D-1) is a valid document duly registered whereas the plaintiff now wants to revoke the same on the basis of an unregistered agreement and this, in my opinion, is prohibited by the proviso to S. 92 of the Evidence Act. It has been so held in AIR 1973 Ori 22, Madanmohan Jena v. Srinath Samal, wherein it has been observed: “A contract reduced to writing and registered, either voluntarily or as required by law, can be modified or rescinded only by a registered instrument and no evidence of a subsequent oral agreement to modify or rescind the contract is permissible.” The bar of estoppel or waiver in such a situation also does not fall on the way of defendant No. 1 to challenge the validity of such a document as it is in violation of specific provisions of law contained in S. 10 of the Act and the agreement in question is, therefore, vitiated on account of its being an illegal transaction.” 27.
This judgment was cited before the learned First Appellate Court; however, the learned First Appellate Court proceeded to distinguish this judgment by holding that the facts in the present case and the facts in the judgment of this Court were quite distinct. This Court was concerned with the legal question whether a registered document could have been revoked on the basis of an unregistered document or not. This Court relied upon the revision of Section 92 of the Indian Evidence Act as well as the judgment of the Orissa High Court in Madan Mohan Jaina Vs. Shrina Sawan AIR 1973 Orissa 22 to hold
27 that when a contract has been reduced into writing and has been registered, it can be varied only by a registered instrument and there can be more oral/documentary evidence to modify the same. This was a clear enunciation of law independent of the facts; therefore, the learned First Appellate Court erred in distinguishing the binding precedent of this Court. 28.
A similar view was taken by the Punjab & Haryana High Court in Kishan Chand v. Amar Singh, 2015 SCC OnLine P&H 10477: 2015 (3) RCR Civil 507, wherein it was observed: “12. If we go by the pleadings, the clear case of the plaintiff is that the sale deed dated 10.5.1965 stood cancelled in view of the agreement dated 23.12.1983 (Ex.P3). This subsequent agreement is unregistered whereas the sale deed is a registered document. In view of Section 17 of the Registration Act, 1908, any alienation of immovable property valuing more than ₹ 99/- can be done only by a registered document. The value of the property is more than ₹ 99/-, is not a matter of dispute. Thus cancellation of the sale deed (Ex.P1) could have been done only by a registered document. Agreement dated 23.12.1983 (Ex.P3) ipso facto does not affect right, title and interest in the property in terms of the sale deed (Ex.P1). 13. In short, the unregistered document has no legal value. Even otherwise, sale deed (Ex.P1) being registered one could not have been cancelled by way of an unregistered document.”
28 29.
Therefore, the learned First Appellate Court erred in holding that there was a failure of consideration and the agreement (Ex.P1) has the effect of nullifying the sale deed (Ex. D1). This substantial questions, of law are answered accordingly. Substantial Question of Law No.2: 30.
It was laid down by the Hon’ble Supreme Court in Rattan Dev v. Pasam Devi, (2002) 7 SCC 441: 2002 SCC OnLine SC 868, that the non-appearance of the party will become insignificant when there is other evidence on record. It was observed:- 5. Learned counsel for the respondent has placed reliance on Iswar Bhai C. Patel v. Harihar Behera (1999) 3 SCC 457 wherein this Court has emphasised that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results in an adverse inference being drawn against the plaintiff. That proposition of law is undoubtable. However, as we have already said, that is a fact to be kept in view and taken into consideration by the appellate court while appreciating other oral and documentary evidence available on record. Maybe, that from other evidence — oral and documentary — produced by the plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of the plaintiff himself from the witness box may pale into insignificance.
31.
It was laid down by Karnataka High Court in Gangawa v. Arjunsa, 2001 SCC OnLine Kar 51 = AIR 2001 Karnataka 231 that a party need not examine himself in all the cases. If some facts are in exclusive knowledge of the party, it has to appear before the Court; otherwise, it can rely upon the other evidence. It was observed: “It is also not necessary in law that always the party to the proceedings should examine himself. The requirement of law insists only that the party who puts forth his case should prove the material facts set up. A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify. However, in cases where there is an onus placed on the party to discharge and if the facts required to be deposed are necessary to be testified by the party in person, in such a situation, however, such a party runs the risk of facing adverse inference for non- examination. Otherwise, it is also open for the party to give evidence through the power of attorney and such evidence would be valid substituted evidence of the plaintiff. Ultimately, appreciation of the probative value of the evidence and competence of the person testified is a matter that is to be tested in the course of the cross- examination.”
32.
This position was reiterated in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217: 2004 SCC OnLine SC 1538 and it was held that the adverse inference can only be drawn against a party where it had not appeared despite the knowledge of facts. Where the facts are not exclusively within its
30 knowledge, it can examine its power of attorney instead. It was observed: “13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined.” 33.
The sale deed and agreement were executed by the General Power of Attorney of the plaintiff and she was the best person to say whether the sale consideration was received by her or not, only she could explain the execution of the agreement and the terms and conditions contained therein. Since the General Power of Attorney of the plaintiff was the best witness in the present case who was acquainted with all the facts of the case; therefore, she was required to be examined. Any cross- examination of the plaintiff would not have been sufficient in the absence of his signatures on the sale deed and the
31 agreement. Therefore, no adverse inference could have been drawn in the present case due to the failure of the plaintiff to appear in the witness box and this substantial question of law is answered accordingly. Final Order: 34.
In view of the aforesaid discussion, the present appeal is allowed and the judgments and decrees passed by the learned first appellate court are set aside and those of the Trial Court are restored. 35.
Pending application(s), if any, also stand(s) disposed of. (Rakesh Kainthla) Judge 12th September, 2023 (Chander)