Madhya Pradesh High Court
Mohd.Zahoor & Anr. vs Ram Sajeevan & Anr. on 11 September, 2024
1
SA No. 373 of 1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
SECOND APPEAL NO.373 of 1998
MOHD.ZAHOOR & ANR.
Versus
RAM SAJEEVAN & ANR.
.........................................................................................................
Appearance:
Shri Avinash Zargar - Advocate with Ms. Kratika Indurakhya - Advocate for the
appellants.
Shri Ravish Agrawal - Sr. Advocate with Shri Saket Malik - Advocate for the
respondent No.1
..........................................................................................................
JUDGMENT
(Reserved on 25 /07/2024) (Pronounced on 11/09/2024 This appeal has been admitted on the following substantial questions of law on 11.09.1998 :-
(i) Whether the defendant No.1 derived title by virtue of the sale-deed dated 27.11.1967 executed by plaintiff No.2 in his favour?
(ii) Whether the lower appellate Court is right in holding that the suit is barred by limitation?
2. This appeal under Section 100 C.P.C. has been filed by the plaintiffs challenging the judgment passed by appellate Court dated 27.01.1998 whereby Signature judgment and decree passed by the Civil Court dated 15.03.1991 Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 2 SA No. 373 of 1998 was reversed and suit has been dismissed by the appellate Court. Initially the suit has been decreed by the trial Court.
3. The facts in brief of the case are that a suit was filed by the present appellant before the trial Court in the year 1973. The suit was for cancellation of sale deed dated 27.11.1967 and for recovery of possession in the suit land. The suit was filed by the present appellants on the assertions that the appellant / plaintiff No.2 was the owner of the suit land situated in survey No. 661, 662 and 663. The said plaintiff No.2 was a beggar and he put the defendant No.2 in possession of the said land who was the nephew of plaintiff No.2. The plaint further alleged that the plaintiff No.2 had given some portion of the suit land for construction of house and shop to the plaintiff No.1 about 15 years prior to filing of the suit.
4. It was further alleged in the suit that the plaintiff No.1 had extended a loan of Rs. 700/- to the plaintiff No.2 and the plaintiff No.2 had no means of returning the loan amount and therefore in November, 1967 it was agreed between the plaintiffs that the plaintiff No.1 shall purchase the suit land from plaintiff No.2 for a sale consideration of Rs.1500/- and out of that agreed consideration of Rs.1500/-, the amount of Rs. 700/- which had been loaned to the plaintiff No.2 shall be set off and rest amount of Rs.800/- shall be paid to plaintiff No.2 at the time of execution of sale deed. This was alleged to be an oral agreement between the plaintiffs inter se.
5. It is further alleged in the plaint that the defendant No.1 had coaxed the plaintiff No.2 to sell the suit land to him for Rs.700/- and was regularly pressuring and pestering plaintiff No.2. For that purpose, despite his refusal heNotkept Signature Verifiedon pestering plaintiff No.2. Thus, the plaintiff No.2 had Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 3 SA No. 373 of 1998 accompanied the defendant No.1 on 27.011.1967 to Sidhi and sale deed had been written in Sidhi Court. The document writer wrote the document of sale for consideration of Rs. 350/- but the said document was not read over to the plaintiff No.2 and he was under impression that the document is for consideration of Rs.700/-. The plaintiff No.2 was an old illiterate person. On the next day when he came for registration of document he realized that the document is for Rs.350/- only. Thus the plaintiff No.2 made a police report and objected to execution of the said document. Despite his objection the document was registered on 28.11.1967 by the Registrar.
6. It is further contended in the plaint that the suit land was sold by the plaintiff No.2 in favor of plaintiff No.1 on 28.11.1967 itself and it was registered on that very date itself. Thus, in this manner in the present case there are two sale deeds of the same property which have been registered on the same date. The sale deed in favour of defendant No.1 which was sought to be canceled in the suit is dated 27.11.1967 and registered on 28.11.1967. This sale deed is Ex.D-19. The other sale deed which is in favour of plaintiff No.1 is dated 28.11.1967 and registered on that very date which is Ex.D-11. Thus this case involves the question whether the defendant No.1 derived title by the virtue of this sale deed Ex.D-19.
7. It was argued by learned counsel for the appellant that the plaintiff No.2 was made to falsely understand that the sale deed has been written for Rs.700/- whereas the sale deed was actually written for Rs.350/- and even the consideration of Rs. 350/- as alleged in the sale deed Ex.D-19 was not actually paid to the plaintiff No.2 and thus non-payment of sale consideration is admitted. It is submitted that in fact the defendant No.1 even sent a notice to the plaintiff No.2 for receiving the amount of consideration Signature Not Verified which the plaintiff No.2 allegedly refused to receive and this Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 4 SA No. 373 of 1998 notice was sent on 12.03.1969. Thus it is undisputed that the plaintiff No.2 did not receive sale consideration and thus sale deed Ex.D-19 is void document because no sale consideration has passed.
8. It has been further argued that the defendant No.1 alleged that an agreement was also executed between the defendant No.1 and plaintiff No.2 vide Ex.D-18 and even as per this alleged agreement dated 25.10.1967, no consideration has passed even by way of advance and thus it is the case of a sale deed without any consideration and not case of sale deed having been executed with part payment or with promise of future payment.
9. Learned counsel for the appellant has further relied on Ex.D-7 which is the statement of plaintiff No.2 before the Sub-Registrar wherein the plaintiff No.2 had specifically stated before the Sub-Registrar that he has not received any sale consideration whereas he stated before Sub-Registrar that he does not want to get the sale deed executed and he was placed under false impression that the sale consideration would be Rs.700/-while actual consideration written in the sale deed is Rs.350/- despite that the Sub- Registrar registered the sale deed.
10. The learned counsel for the appellant has also relied on the note made on the reverse side of sale deed Ex.D-19 wherein it has been noted by Sub- Registrar that the vendor has not received any consideration and also that same note which is made in English on reverse of first page of sale deed Ex.D-19 is also there in the same terms on the reverse of the second page of sale deed in Hindi. Thus, the sale deed could not be registered by the Registrar when the vendor was specifically stating before the Sub-Registrar that he has not received any consideration.
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 5 SA No. 373 of 199811. Learned counsel for the appellant further submitted that the Registrar has erred in registering a void sale deed and thus no title could pass in favour of defendant No.1 on the strength of sale deed Ex.D-19. It was further argued that the appellate Court has wrongly held that the plaintiffs have avoided to get the statement of plaintiff No.2 recorded before the trial Court because the plaintiff No.2 died within four months after settlement of issues and it cannot be said that the plaintiff avoided to get statement of plaintiff No.2 recorded before the trial Court and no adverse inference in such circumstances could be drawn against the plaintiff.
12. It is further contended that the appellate Court has wrongly decided the factum of issue of limitation against the plaintiffs on the ground that the sale deed which is sought to be declared void was executed in November, 1967 whereas the suit has been filed in the year 1973. It is contended that there were some proceedings under Section 145 C.P.C before the Executive Magistrate on account of which the parties were involved in that litigation and the defendant No.1 got possession on 01.01.1969 of the suit land as per averments in para-14 of the plaint. Thus, the appellate Court has wrongly applied Article 59 of Limitation Act whereas this case involved Article 59 as well as Article 65 of Limitation Act and as per Article 65 of Limitation Act, the limitation is 12 years for filing suit for possession. It is further argued that it is settled law that if two provisions for calculating limitation are applicable then the larger one of the two should be applied.
13. Per Contra, The learned counsel for the defendant No.1/respondent No.1 has submitted that the sale deed in question was not void but was voidable sale deed. It is contended by learned counsel for the respondent No.1 that the proceedings Ex.D-7 drawn before the Sub- Registrar of Registration Signature Not Verified indicate that plaintiff No.2 voluntarily refuse to receive Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 6 SA No. 373 of 1998 consideration and he was infact demanding Rs. 1500/-as consideration before Sub-Registrar. Thus, he was not willing even to take Rs.700/- as consideration.
14. The learned senior counsel further submits that the matter arises out of greed of plaintiff No.2 because if indeed there was an oral contract between plaintiff No.1 and plaintiff No.2 for sale of the same property for Rs.1500/- then there was no reason why he went to execute a sale deed with defendant No.1 even less than half price i.e Rs.700/-. It is further argued by learned senior counsel that the sale deed executed in favour of defendant No.1 is prior in time i.e. executed on 27.11.1967 and registered on 28.11.1967 whereas the sale deed executed in favour of plaintiff No.1 is executed and registered on 28.11.1968. Thus, unless the sale deed in favour of defendant No.1 is declared void, the plaintiff No.1 will not get any title. Thus the suit will lie to get the sale deed in favour of defendant No.1 decared as void and without such declaration, no title of plaintiff will accrue and therefore, there is no question of applicability of Article 65 of Limitation Act because Article 65 of Limitation Act relates to recovery of possession based on title and in the present case the plaintiff No.1 will get title only if the sale deed in favour of defendant No.1 is declared void for which the limitation would be 3 years and thus, the appellate Court has not erred in applying Article 59 of Limitation to the present case.
15. The learned senior counsel further submits that in terms of Order 18 Rule 16 C.P.C. once the plaintiff No.2 was old and infirm the plaintiffs could have requested the trial Court to record statements of plaintiff No.2 even before settlement of issues in terms with Order 18 Rule 16 C.P.C. and could have requested for issuance of commission for that purpose in terms ofNot Signature Order Verified26 Rule 4 C.P.C. The plaintiffs deliberately avoided recording Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 7 SA No. 373 of 1998 evidence of plaintiff No.2 and therefore, the appellate Court has not erred in drawing adverse inference against the plaintiffs.
16. It is further argued that the sale deed does not get void for want of consideration but is only voidable. It is argued that the matter actually does not involve any fraud because it is admitted in the plaint of plaintiff No.2 had come down to Sidhi Court with the defendant No.1 for the purpose of executing sale deed as a result of persuasion of defendant No.1. There is no aspect of fraud because the plaintiff No.2 had started demanding Rs.1500/- as sale consideration instead of agreed sale consideration of Rs.350/- and which was even more than sale consideration of Rs.700/- which was alleged to be orally agreed between parties by plaintiff No.2.
17. Learned senior counsel further relies on Rule 121 of M.P. Registration Rules in terms of which the Registrar of Registration recorded the statements Ex.D-7. It is further contended that the intention of parties as would be gathered and in the present case the intention of the parties was clearly to sell the land and plaintiff No.2 admits in the plaint to have come down to Sidhi Court for selling the land. It is further contended that the Registrar could not have refused registration in terms of Rule 35 of M.P. Registration Rule and also that in terms of Section 55(5)(b), 55(4)(b) of Transfer of Property Act, the unpaid purchaser has remedy to claim consideration and sale deed cannot be declared void.
18. Heard the learned counsel for the parties and perused the record.
19. The question of the sale deed being void is taken up first, because the aspect of the suit being barred by limitation will also somewhat depend on this question, because it was argued by the respondent-defendant that no suit for recovery of possession would lie unless the sale deed was declared Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 8 SA No. 373 of 1998 void, hence, the plaintiff will not be able to take benefit of larger limitation period of article 65 of Limitation Act.
20. To deal with the issue of sale deed Ex. D-19 in favour of the defendant No.1 being void, voidable or valid, the following facts are relevant, that are largely undisputed looking to the concurrent factual findings of the Courts below :-
a. A sale deed (Ex. D-19) was written on 27.11.1967 in favour of defendant No.1 by the plaintiff No.2, mentioning consideration of Rs. 350/- that was to be paid before the Sub-Registrar.
b. The plaintiff wrote another sale deed of the same property on 28.11.1967 (Ex. D-11) in favour of the plaintiff No.1 and presented it before the Sub-Registrar on 28.11.1967.
c. The sale deed in favour of defendant No.1 was presented before the Sub-Registrar on 28.11.1967 by the defendant No.1 (purchaser) for consideration of Rs. 1500/-.
d. The sale deed in favour of the plaintiff No.1 was presented by the plaintiff No.2 (vendor) before the Sub-Registrar on 28.11.1967.
e. The Sub-Registrar took the statements (Ex. D-7) of the vendor (plaintiff No.2) while registering the sale deed in favour of defendant No.1 and the vendor (plaintiff No.2) refused to execute the sale deed stating that he was taken under impression that the sale deed is for consideration of Rs. 700/- and would not now accept anything less than Rs. 1500/-.
f. No consideration was paid to the plaintiff No.2 before the Sub- Registrar, still the Sub-Registrar registered the impugned sale deed Ex. D-19 stating that he is duty bound to register the sale deed in view of provisions of Registration Act 1908 and Madhya Pradesh Rules framed Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 9 SA No. 373 of 1998 thereunder. This was registered at Sr. No. 1061. Non-payment of consideration is admitted even in the written statement stating that the plaintiff No.2 refused to accept the consideration.
g. The other sale deed Ex. D-11 in favour of the plaintiff No.1 was also registered on the same date by the Sub-Registrar at Sr. No. 1060.
h. The plaintiff No.1 and defendant No.1, both started claiming possession on the property and action under Section 145/146 CrPC was taken at instance of police apprehending breach of peace and ultimately the defendant No.1 was put in possession in January 1969 by the order of Executive Magistrate dated 30.12.1968 (Ex. P-10).
21. From the aforesaid established facts, it is clear that admittedly no consideration ever passed in favour of the original vendor (plaintiff No.2) though the dispute was whether the consideration payable was Rs. 350/-, Rs.700/- or Rs.1500/- and on this ground the sale deed is projected to be void. The Sub-Registrar had taken statements of the plaintiff No.2 vide Ex. D-7 and he had stated the following :-
Jh fny'kkSd ru; djhe cD'k lkabZ eqlyeku lk- pqjgV dh gyfQ;k c;ku& lgh dgwaxk esjk uke fny'kkSd lkabZ gSA eS lkfdu pqjgV dk jgus okyk gwWA eSu s tks o;ukek Jh jkelthou 'kekZ ds gd esa fy[k fn;k gS mles a vaxwBk yxk;k gSA eSus dy vaxwBk yxk;k ml le; dksbZ O;fDr ugha FkkA bl ys[k esa tks nks xokgku gS mUgs ckn es a MkDVj jkelthou 'kekZ idM+dj ys vk, vkSj nLr[kr djok;kA bl nLrkost ds i<+dj ugha lquk;k x;kA MkDVj lkgc bl vkjkth dks [kjhnus ds fy, 700@& dgdj yk, Fks eq>s ,d iSlk Hkh c;kus esa ugha fn;ks x;kA eq>s dpgjh ds ckgj lM+d ij cSBkdj fyok;k x;k vc eS bl nLrkost dh jftLVªh ugha djkuk pkgrk vkSj u iSlk gh ysuk pkgrkA ;fn eq>s 1500@& ns rks eS vkt jftLVªh djk ldrk gwWA
22. After recording such statements, the sale deed Ex. D-19 was registered without passing of any consideration and without the plaintiff No.2 marking his thumb impression on the register of the Sub-Registrar. The Registrar made the following note on the sale-deed in his hand writing :-
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 10 SA No. 373 of 1998Jh fny'kkSd ru; djhe cD'k lkabZ eqlyeku lkfdu ( illegible due to some portion torn)- rg- xksin Lohdkj djrs gS fd rFkkdfFkr fcdzhi+= foys[k dk fu"iknu fd;k x;k Fkk ,oa Jh x.ks'k izlkn ru; y{e.k izlkn ,oa Jh fo|kizlkn ru; pUnzeknhu nksuks dkLr0 lk- pqjgV dh tkap iwoksZDr fu"iknd dh f'kuk[r ds fo"k; es a dh xbZA mDr fny'kkSd dk vkjksi gS fd nLrkost ds fy, mls dksbZ izfrQy ugha fn;k rFkk fu"iknu Ny ls ;k fdlh voS/k <ax ls djok;k x;k Fkk vkfn A vkt fnukad 28-11-67- (Signature and Seal) mi&iath;d lh/kh ¼e-iz-½
23. It is evident from a perusal of these notings quoted above, even if taken to be true in absence of examination of the plaintiff No.2 before the trial Court, that the plaintiff No.2 had refused to get the instrument registered and stated that he was fraudulently given impression that the document is for consideration of Rs. 700/- and that now he will accept Rs. 1500/- and not less. It is admitted that no consideration ever passed, and not even Rs. 350/- was paid, may be due to refusal of the vendor plaintiff No.2 to accept the said amount.
24. The sale deed Ex. D-19 in its first para mentioned that the consideration of Rs. 350/- has been paid before the Sub-Registrar, however, admittedly, no consideration was paid before the Sub-Registrar. Clearly, this is not a case of part payment of consideration, but a case of payment of no consideration. Even delivery of possession was in cloud because after two sale deeds were executed on same date, the plaintiff No.1 and defendant No.1 started quarrels and resultantly, police had to intervene in terms of Section 145/146 CrPC and ultimately the Executive Magistrate directed possession to be delivered to the defendant No.1.
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 11 SA No. 373 of 199825. The intention of the parties was not to defer the payment of consideration or to execute the deed of promise of consideration to be paid at later date. The clear intention was to accept the consideration before the Sub-Registrar at the time of Registration. The learned senior counsel for the defendant No.1 tried to justify it on the anvil of Section 55 (5) (b) and 55 (4) (b) of the Transfer of Property Act 1882 ("TP Act" for short), to submit that the remaining amount would only be a charge and the vendor can recover it, but the sale cannot be held to be void and only voidable if the defendant No.1 refuses to pay the said consideration, but he never refused and it was the vendor who refused to accept and that the defendant No.1 is willing to pay it even today. The following judgments were relied by him :-
Vidhyadhar v. Manikrao, (1999) 3 SCC 573 (para-37) Bishundeo Narain Rai v. Anmol Devi, (1998) 7 SCC 498 Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 Janak Dulari Devi v. Kapildeo Rai, (2011) 6 SCC 555 Shiva Narayan Sah v. Baidya Nath Prasad Tiwary, AIR 1973 Patna 386 Kaushik Premkumar Mishra v. Kanji Ravaria, 2024 SCC OnLine SC 1756
26. In the case of Kaushik Premkumar (supra), the Supreme Court has held that the Defendant No.1 had not categorically denied not having received any sale consideration. It was also held that even if assuming that no sale consideration was paid even though there was a registered sale deed, it would be at the instance of the vendor to challenge the said sale deed on the ground of no sale consideration being paid, but the vendor did not file and suit making challenge to the sale deed for being declared as void or being cancelled on such ground. Thus, this case does not help the present defendant No.1 at all.
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 12 SA No. 373 of 199827. In the case of Vidyadhar (supra), the Supreme Court in para-37 thereof held that even 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 and that non-payment of a portion of the sale price would not affect validity of sale. It was observed that part-payment of consideration by the vendee itself proved the intention to pay the remaining amount of the sale price. However, in the present case, there was no intention to defer the payment of consideration, and even a part of consideration has not been paid. Thus, reliance on this judgement is misplaced.
28. At similar footing is the case of Bishnudeo Narayan Rai (supra) where the Supreme Court even upheld the view of Patna High Court in Panchoo Sahu v. Janki Mandar [AIR 1952 Pat 263] whereby a Division Bench of the Patna High Court found that there was a recital in the sale deed which indicated that the title would pass only on payment of the entire consideration. So that was a case where intention of the parties was reflected in the sale deed itself. So also in Hara Bewa v. Banchanidhi Barik [AIR 1957 Ori 243] a Division Bench of the Orissa High Court found that the recitals in the sale deed were indecisive and ambiguous, therefore, the Court took into consideration the surrounding circumstances including the fact of the custody of the document with the vendor and held on the facts and circumstances of that case that the intention of the parties to the first sale deed was that the vendee would not get title on the basis of the sale deed unless the consideration was paid.
29. In the case of Dahiben (supra) a small part of consideration was paid and notice/demand for the remaining part was not made for a long time.
30. In all the aforesaid cases including the case of Janak Dulari Devi (supra), Signature the intention of the parties to sale was clear, and by accepting part Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 13 SA No. 373 of 1998 consideration, it was held that the parties had agreed on a promise to receive the balance consideration, hence, the aforesaid cases were cases of part paid and part promised. However, the present case is where even at the time of registration, the vendor refused to sign/mark thumb on the record of the Registrar stating that he does not wish to get the document registered. Despite that, the Registrar registered the document. Even the intention in the sale deed is to accept the entire consideration at the time of registration. The sale-deed Ex. D-19 mentions the following :-
**tks fd mijksDr vkjkft;kr essjs iV~s o dCts n[ky Hwfe gS ftldk es a ,d ek= Hkwfe Lokeh gwWA pwfd esS nwljs txg rdZ ldwur dj x;k vkSj esj s yM+ds cPps Hkh pqjgV esa ughs jgrs gS mDr Hkwfe dk lgh <ax ls izcU/k ugha dj ikrk gwW vLrq mijksDr dqy Hkwfe jdok 0&21fM0 tks esjs iV~s dh gS Jh Mk0 jke lthou 'kekZ [kjhnnkj etdwj ds gd esa eqcfyx 350&00 rhu lkS ipkl :i;s esa csph djrk gWWw vkSj dqy :i;k Jh lc jftVkj lkgc xksin cukl lh/kh das le{k [kjhnnkj etdwj ls ysrk gwW rFkk ;g o;ukek ---------**
31. On the contrary, similar to facts of this case was the case of Kaliaperumal v. Rajagopal, (2009) 4 SCC 193 wherein the sale consideration was to be paid before the Registrar but was admittedly not paid. The Supreme Court held as under :-
"21. Applying the abovementioned principles to the facts of this case, we find that the parties intended that ownership of the property would be transferred to the appellant only after receipt of the entire consideration by the vendors, as a condition precedent. The operative portion of the sale deed clearly states that the vendors have agreed to receive Rs 40,000 in the presence of the Sub-Registrar on the date of the registration of the sale deed and that in consideration of payment to be so made, the property was being conveyed to the purchaser. This makes it clear that the title was intended to pass only on the payment of balance consideration of Rs 40,000 in the presence of the Sub- Registrar. This is also supported by the evidence of DW 1 to DW 4. The Sub-Registrar has also clearly recorded that no amount was tendered or paid by the purchaser to the vendors in his presence.Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 14 SA No. 373 of 1998
Therefore title in fact did not pass either on execution or registration of the sale deed."
32. The Supreme Court in the case of Kewal Krishan Vs. Rajesh Kumar reported in 2021 SCC Online SC 1097 has held as under :-
"16. Section 54 of the Transfer of Property Act, 1882 (for short "the TP Act") reads thus:
"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."
17. Hence, 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.
18. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers Signature Not Verified Signed by: NAVEEN who were minor sons and wife of Sudarshan Kumar had no earning KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 15 SA No. 373 of 1998 capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar's wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings."
33. In the present case, a case is made out in terms of para-18 of the case of Kewal Krishan (supra) as it is a case of payment of no consideration without the parties having agreed to receive the consideration at a later date.
34. Section 54 of TP Act mandates sale to be compulsorily registered as against general provisions of registrability of a document under the Registration Act. In a recent case of Kanwar Raj Singh Vs. Gejo, reported in 2024 (2) SCC 416, the Supreme Court has considered the effect of section 54 of TP Act in detail that mandates sale to be compulsorily registered and has held as under :-
"11. Every sale deed in respect of property worth more than Rs 100 is compulsorily registerable under Section 54 of the Transfer of Property Act. Thus, a sale deed executed by the vendor becomes an instrument of sale only after it is registered. The decision of the Constitution Bench only deals with the question of when the sale is complete; it does not deal with the issue of the date from which the sale deed would operate. Section 47 of the Registration Act does not deal with the completion of the sale; it only lays down the time from which a registered document Signature Not Verified would operate.Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 16 SA No. 373 of 1998
12. Now, coming to the facts of this case, the consideration was entirely paid on the date of the execution of the sale deed. The sale deed was registered with the interpolation made about the description/area of the property sold. The first defendant admittedly made the said interpolation after it was executed but before it was registered. In terms of Section 47 of the Registration Act, a registered sale deed where entire consideration is paid would operate from the date of its execution. Thus, the sale deed as originally executed will operate."
(emphasis supplied)
35. In terms of the aforesaid judgment, in the present case, the sale deed Ex. D-19 is void and illegal for another reason that this impugned sale deed has been registered later to the sale deed Ex. D-11, though on the same date. As no consideration was paid, the sale deed Ex. D-19, even if it would operate, would not operate from previous day when it was executed, but only from its registration, and has been undisputedly registered later to Ex. D-11, as its registration number assigned is later to that of D-11, as discussed above. Therefore, as per provision contained in Section 48 of the Transfer of Property Act, 1882 and in the light of decisions of the Supreme Court in the case of Atla Sidda Reddy Vs. Busi Subba Reddy and others (2010) 6 SCC 666 and of this Court in the case of Mohd. Ashraf and another Vs. M.P. Housing Board and others 2011(1) MPLJ 444, in case of two or more sale deeds of same land, the previous sale deed(s) will prevail over later sale deed(s). Resultingly, the sale deed Ex. D-19 has to give way to Ex. D-11, even if this sale deed had not been void. Section 48 of TP Act is as under :-
"48. Priority of rights created by transfer.--Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created."Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 17 SA No. 373 of 1998
36. In the result, the first substantial question of law is answered in favour of the appellant and it is held that the defendant No.1 has not derived any title out of the sale deed Ex. D-19 executed by plaintiff No.2 in favour of defendant No.1, the said sale deed being void. The Sub-Registrar could not have registered a void document in which even the conditions of the document were not fulfilled and this fact was apprised to the Sub-Registrar. Still, he proceeded to register a void document despite objection of the executant thereof. This registration would not give any life or validity to a void document. The plaintiffs are therefore, entitled to declaration of their rights and title over the suit property.
37. Now taking up the second question of limitation. The limitation for cancellation or setting aside of an instrument is 3 years vide Article 59 of Limitation Act, while for possession based on title is 12 years under article 65 of the said Act. It was contended on behalf of the defendants that unless the document is declared void, no relief for possession can be granted.
38. However, as the sale deed Ex. D-19 has already been held to be void, even cancellation is not required and the plaintiff has to simply sue for declaration of the document being void and of his own title. In State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460 it has been held as under :-
"5. As already noticed, in Bhim Singhji case [(1981) 1 SCC 166] Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26-5-1976, was without jurisdiction and a nullity. Consequently, the sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of the plaintiff having sought such a declaration is of no consequence.Signature Not Verified
When possession has been taken by the appellants pursuant to void Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 18 SA No. 373 of 1998 documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are a nullity. In Ajudh Raj v. Moti [(1991) 3 SCC 136] this Court said that if the order has been passed without jurisdiction, the same can be ignored as a nullity, that is, non- existent in the eye of the law and it is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time-barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act."
39. The questioned sale deed was executed on 28.11.1967, the plaintiffs were dispossessed in January 1969 and the suit was filed on 13.3.1973. Thus, the suit was certainly not barred by limitation as the suit was filed within 12 years from their dispossession. Therefore, the second substantial question of law is also answered in favour of the plaintiffs and it is held that the suit was not barred by limitation.
40. In the result, the appeal is allowed and the judgments and decrees passed by both the Courts are set aside. The suit is allowed and decreed in the following terms :-
(a) The sale deed Ex. D-19 dated 27.11.1968 (registered on 28.11.1968) in favour of the defendant No.1 is declared void.
(b) The plaintiff No.1 is declared title holder of suit land in survey No. 661 (0.06 decimal), 662 (0.07 decimal) and 663 (0.08 decimal) total area 0.21 decimal situated in Village Churhat, Tehsil Gopad Banas, Distt. Sidhi (MP).
(c) The plaintiff No.1 is held entitled to recover possession of the suit land alongwith construction raised thereon from the defendant No.1. Let the possession be delivered within three Signature Not Verifiedmonths from date of this judgment. Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM 19 SA No. 373 of 1998
(d) The plaintiff No.1 Is also entitled to mesne profits @ Rs. 240/- per year from 01.1.1969 till delivery of possession.
(e) The plaintiffs are also entitled to costs throughout.
Let decree be drawn up accordingly.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 12-09-2024 7.18.11 PM