Gujarat High Court
Harish Purshottam Chandwani vs Janak Chandiram Sukhwani on 5 February, 2025
NEUTRAL CITATION
C/SA/12/2025 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 12 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 12 of 2025
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HARISH PURSHOTTAM CHANDWANI
Versus
JANAK CHANDIRAM SUKHWANI & ANR.
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Appearance:
MR AMAN A SAMA(11691) for the Appellant(s) No. 1
MR AADITYA P DAVE(11461) for the Respondent(s) No. 1,2
MR DM DEVNANI(5880) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/02/2025
ORAL ORDER
1. The present second appeal has been preferred challenging judgement and decree passed in Regular Civil Appeal no.145 of 2022 and Special Civil Suit no.70 of 2017 whereby the Principal District Judge, Bhuj at Kutchh dismissed the appeal on 23.08.2024 upholding the order of the Trial Court which dismissed the Special Civil Suit no.70 of 2017.
2. For the brevity and convenience, the parties are referred to as plaintiff and defendant.
3. The brief facts arising in the present Second Appeal are that the plaintiff filed the said Suit praying for cancellation of the saledeed, declaration and permanent injunction.
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4. It was the case of the plaintiff in the Suit, that in 2019 the plaintiff purchased 51 plots located at Maduli Park vide registered saledeed and the plaintiff informed his friend about his intention for sale of the said 51 plots thereafter, the defendant no.1 expressed his interest for purchase of the said 51 plots from the plaintiff.
5. It is the case of the plaintiff that on 12.12.2012, defendant no.1 executed an agreement to sale for purchase of the said 51 plots at the rate of Rs.2,151 per square yard total admeasuring 9947.87 square yards and the total sale consideration was Rs.2,13,97,865/- and Rs.50,000/- was paid by the defendant no.1 as earnest money in cash and as per the terms of agreement to sell it was agreed that the defendant no.1 will pay the outstanding amount of consideration of Rs.1,63,97,865/- to the plaintiff on or before 20.06.2013.
6. It has also been stated by the plaintiff before the Trial Court that the plaintiff shall be entitled to the interest @01% on the said outstanding amount from the defendant no.1 and in pursuance of the same, defendant no.1 gave five cheques bearing no.707797, 707798, 707799, 707800, 707601 all dated 20.09.2013 of Rs.30 total amounting to Rs.1 crore 50 lakhs to the plaintiff towards the outstanding consideration amount of Rs.1,63,97,865/- and when the said cheques were deposited in bank the same returned with an endorsement of "funds Page 2 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined insufficient".
7. It is the case of the plaintiff that the plaintiff executed saledeed No.7466 dated 14.12.2012 in favour of defendant no. 2 with respect to the plots and thereafter the plaintiff demanded the amount from the defendant nos 1 and 2 mentioned in the agreement to sale dated 12.12.2012 but the defendants did not make payment to the plaintiff and thereby committed cheating and fraud with the plaintiff and plaintiff has filed a complaint in this regard.
8. In view of the above referred fact, the plaintiff filed a Suit on the ground that full amount of sale consideration was not paid as per the agreement to sell dated 12.12.2012 therefore the sale deed be declared null and void and the sale deed be considered cancelled. The plaintiff also prayed for a declaration that the defendeant no.2 has no right to sell the disputed plots pursuant to the saledeed and the defendant no.1 and 2 have made cheating with the planetiff with respect to the disputed property.
9. The defendant appeared and resisted the suit by filing reply and denying the facts and also on the ground that the plaintiffs do not have any locus standi to file the suit and defendants denied the facts of agreement to sale and have denied of giving cheques and have stated that they have paid full amount of Page 3 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined consideration of the plots.
10. After hearing the parties and after framing issues and oral evidence, the Trial Court vide order dated 06.10.2021 dismissed the said suit and being aggrieved by the said judgment, the present plaintiff preferred Regular Civil Appeal, which has been dismissed and the said judgment is under challenge by way of present second appeal.
11. Heard learned advocate Mr.Aman Sama for the plaintiff, the main dispute in the plaint is with respect to the saledeed that has been executed by the defendant in favour of the plaintiff. Learned advocate for the plaintiff has mainly taken a contention that as the amount mentioned in the agreement to sell dated 12.12.2012 is not paid to the plaintiff, the plaintiff has a right to cancel the sale deed and declare the sale deed as null and void.
12. To substantiate his argument, learned advocate for the plaintiff has tried to canvas his argument that the said agreement to sell having been signed by the defendant and defendant having agreed to pay the sale consideration as per the agreement to sell, the plaintiff can claim a right in the suit premises.
13. It is the case of the plaintiff that the defendants failed to Page 4 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined adhere to the terms of the prior agreement to sell dated 12.12.2012 and that the saledeed falsely acknowledges the receipt of consideration. It has also been argued by the plaintiff that learned Courts below overlooked the discrepancy in the consideration amount and there is a clear absence of details regarding the mode of payment and as there is a failure to specify the mode of payment in the saledeed, the same raises presumption of fraud and invalidity.
14. It has also been argued that the learned Courts below failed to appreciate that the dishonored cheques clearly demonstrated non-payment of the sale consideration.
15. Learned advocate for the plaintiff has also tried to emphasize his argument that there is discrepancy in the consideration amount between the agreement to sell dated 12.12.2012 and saledeed and there is lack of evidence of actual payment and therefore also, the said point has not been taken into consideration by the learned Trial Court and the First Appellate Court. Moreover, the pliaintiff has also argued that as the cheques given by the defendant to the plaintiff were dishonored the same demonstrates non-payment of the agreed sale consideration and therefore there is a fraud and there is no acknowledgment of the full receipt of the sale consideration and there is a valid breach of Section 54 of the Transfer of Property Act, 1882 with respect to mode of payment and the Page 5 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined absence of evidence for valid acknowledgment of consideration.
16. Learned advocate for the plaintiff has relied upon judgment in case of Kewal Krishan Vs. Rajesh Kumar reported in 2021 (0) AIJEL SC 68030, wherein at para 16, the Court has held as under:
"16. 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 who were minor sons and wife of Sudarshan Kumar had no earning 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 Page 6 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined 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.
Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16 th November 2021 have no relevance at all."
17. Learned advocate for the plaintiff has also relied upon the judgment in case of Menubhai Prabhudas Patel Vs. Jayantilal Vadilal Shah reported in 2011 (0) AIJEL-HC- 226714, wherein it is held that the real intention of the parties has to be gathered from the entire recital in the document and one cannot just go by the title document or the nomenclature but the court owes a duty to see the substance of the document and in view of the said fact, the learned advocate for the plaintiff has argued that the judgment and decree passed by the First Appellate Court and the Trial Court are required to be quashed and set aside as there is discrepancy in the sale consideration amount, there is a false acknowledgment of consideration in the saledeed, the defendant has miserably failed to prove that the sale consideration was ever paid by the defendant to the plaintiff while executing the saledeed and that there is a fraud committed by the defendant and there is a breach of trust where by the said saledeed has been executed Page 7 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined by the plaintiff in favour of the defendant and that the judgment and decree of the learned Trial Court and the Appellate Court are erroneous, contrary to the principals of natural justice and have resulted in miscarriage of justice and therefore the Second Appeal be admitted and reliefs as prayed for be granted.
18. Per contra learned advocate Mr.Dharmesh Devnani for the defendant has argued that the defendants have become owner of the property by way of a registered saledeed and in the said saledeed the sale consideration is mentioned to have been paid by the defendant to the plaintiff and in the said saledeed the plaintiffs have given acknowledgment of receiving the said amount. The defendant's advocate has also argued that there were in all 8 saledeeds that have been executed with respect to different plots the details of which are as under:
Sale Deed Plot Details Amount
No.
7467 23, 24, 25, 82, 83, 84, 85, 86 7,31,600/-
7471 20, 21, 22, 87, 88, 89 6,36,200/-
7469 35, 38, 39, 40, 41, 42 6,33,600/-
7470 65, 66, 67, 68, 69, 70, 71, 72, 73 5,59,000/-
7466 57, 58, 59, 60, 61, 62, 63, 64 7,75,500/-
7468 14, 15, 16, 17, 18, 19 6,92,900/-
7472 74, 75, 76, 77, 78, 80 5,47,450/-
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NEUTRAL CITATION
C/SA/12/2025 ORDER DATED: 05/02/2025
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Therefore it has urged that the defendant being the rightful owner of the property having purchased the suit property by registered saledeed, the plaintiff cannot now say that the sales consideration has not been received. The learned advocate for the defendant has also argued that the saledeed that has been executed by the plaintiff in favour of the defendant does not mention of execution of agreement to sell dated 12.12.2012 and that a sale consideration was to be paid as per the said agreement to sell.
19. Learned advocate for the defendant has relied on the judgment in case of Bhimabhai Mansibhai Kariya Vs. General Manager RSPL Ltd., 2011 (0) AIJEL-HC-245699 more particularly para nos.43 to 47 which reads a under:
"43. Such a transfer of property can take place either by means of sale, gift, will, lease etc. Transfer of property is always made to convey property to some one or in other words to create an interest in the property in favour of such a person. If the interest so created is absolute but in the terms of the transfer there is a direction that such interest shall be applied or enjoyed by the transferee in a particular manner (though the interest created is absolute), provisions of Section 11 of the Transfer of Property Act squarely apply. It is to be noted here that the direction in the terms of the transfer has to be in regard to the application of the interest created or enjoyment of the interest created in a particular manner (though the interest has been created absolutely ). In such cases, the law makes the term or direction disappear allowing the interest created absolutely to survive. On the other hand, Page 9 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined when an interest in the property transferred is created but with a condition that it shall cease to exist on the happening of a specified uncertain event or on the nonhappening of a specified uncertain event, the provisions of Section 31 of the Transfer of Property Act squarely apply. The absence of the word 'absolutely' in extension of the words 'an interest' in Section 31 is very significant. Illustration (a) to Section 31 takes into consideration a case of limited interest. Illustration (b) to Section 31 appears to take into consideration a case where a limited interest has not been created, but a condition which is unconnected with application of the interest or enjoyment of the interest so created is superadded. These two illustrations clearly highlight the basic distinction between the provisions in Section 11 and Section 31 of the Transfer of Property Act. In a case falling under Section 31 of the Transfer of Property Act the superadded condition survives and the interest created disappears.
44. There is no stipulation of any nature in the sale-deed executed by the plaintiffs in favour of the defendant no.2 as contained in the vague agreement to sell between the plaintiffs and the defendant no.2. At the cost of repetition, we note that the sale has attained finality. This makes all the difference. The undisputed fact is that the sale-deed entered into between the plaintiffs and the defendant no.2 do not contain any clause which can be construed as 'conditions superadded' so as to enforce the so-called agreement to sell signed only by the plaintiffs. This is the reason why we are saying that the litigation on hand is unique.
45. The entire basis of seeking to enforce the so-called agreement by praying for a relief of specific performance fails once it is conceded and accepted by the learned counsel appearing for the plaintiffs that the relief with respect to the cancellation of the sale-deeds is not Page 10 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined sustainable in law.
46. We are of the view that the entire edifice of the suit instituted by the plaintiffs is as vague as anything and the entire suit can be termed as frivolous. Rather, the whole case set-up by the plaintiffs is preposterous. Though a little beyond the scope of preliminary issues, but we cannot refrain ourselves from observing that the case pleaded by the plaintiffs is contrary to the grain of human behaviour.
47. The suit in substance is for recovery of the so-called unpaid sale consideration. Let us proceed on the footing for the time being that the plaintiffs have to recover some unpaid sale consideration. The Supreme Court, in the case of Dahiben (supra), has categorically held that non- payment of a part of the sale consideration does not make the registered sale-deed 'void' nor does it constitute a valid ground for its cancellation. The Supreme Court held thus :
"The plaintiffs have made out a case of alleged non-payment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the Sale Deed on this ground.
Section 54 of the Transfer of Property Act, 1882 provides as under :
"54. 'Sale' defined.--'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in Page 11 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined the property, or else it would not be a sale.
The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale. In Vidyadhar v. Manikrao & Anr., (1999)3 SCC 573, this Court held that the words 'price paid or promised or part paid and part promised' indicates 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 for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a 'sale', the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.
In view of the law laid down by this Court, even if the averments of the plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale Deed."
20. Learned advocate for the defendant has relied on the judgment in case of Dahiben Vs. Arvindbhai Kalyanji Page 12 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined Bhanusali (GAJRA), (2020) 7 SCC 366, more particularly head note G:
"G. Transfer of Property Act, 1882 S. 54 Sale Expression "price paid or promised or part paid and part promised" - Meaning - Actual payment of entire sale price at time of execution of sale deed not essential condition for completion of sale Sale deed can be registered even upon part-payment of sale price whereupon title would pass to transferee Non- payment of remaining part of sale price would not invalidate sale Vendor would have other remedies for recovery of balance consideration, but not cancellation of sale for non- payment of balance consideration Even if the averments of appellant-plaintiffs are taken to be true in present case, that the entire sale consideration had not in fact been paid, held, the same could not be a ground for cancellation of the sale deed Appellant-plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered sale deed Specific Relief Act, 1963 Ss. 31, 27, 34 and 35-Property Law and Specific Relief Cancellation/Challenge to/Validity of Transfer Contract Remedies/Relief Remedies for Breach of Contract Specific Remedies Action for Contractual Price/Debt."
21. Learned advocate for the defendant has relied on the judgment in case of M.Nadar Kesavan Nadar Vs. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244, wherein para no.6 it is held as under:
"6. It appears to us that in second appeal the High Court was in Page 13 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined error in examining the evidence and then reversing the finding of the trial court in the lower appellate court by holding that the possession of the respondents satisfied the requirements of adverse possession. Both the trial court and the lower appellate court had, in no uncertain terms, come to the conclusion that the respondents had failed to establish by positive evidence that their possession of the disputed property was hostile to the real owner and in denial of his title. Even if the finding of fact was wrong, in our opinion this finding of fact could not be disturbed specially when the High Court has not come to the conclusion that the same was not perverse nor was based on no evidence. The trial court as well as the lower appellate court have discussed the evidence on the record and then had come to the conclusion that the defence in Suit No. 645 of 1970, namely, the respondents herein, had failed in showing that they had perfected their title by adverse possession. It is to be noted that the issue in this regard placed the burden of proof on the respondents and as they had not led evidence to show that they had perfected that title, their plea had to fail."
22. In view of the said facts learned advocate for the defendant has stated that there are no substantial questions of law involved in the present second appeal.
23. Having heard learned advocates for the parties and after going through the judgment and decree passed by the Appellate Court and the Trial Court admitted position in the present case are under:
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1. The plaintiff was the owner of the property.
2. The plaintiff has admitted that the saledeed dated 12.12.2012 has been executed by the plaintiff.
3. In the saledeed sale consideration amount is mentioned.
4. in the saledeed there is no whisper about the fact of agreement to sale being executed between the plaintiff and the defendant.
5. The fact that the saledeed does not mention that the said saledeed is subject to the payment of sale consideration and that the sale consideration is mentioned and acknowledged by the plaintiff.
24. The plaintiff's case before the Trial Court and the Appellate Court is that the amount that was mentioned in the agreement to sale dated 12.12.2012 is not received by the plaintiff but the fact remains that even if the averments of the plaintiff are taken to be true in the present case that the entire sale consideration is not infact being paid, the same could not be a ground for cancellation of the saledeed, moreover the fact remains that the saledeed in question is a registered document Page 15 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined and written document and as per the Section 92 of the Evidence Act, 1872 which reads as under:
"92. Exclusion of evidence of oral agreement. -- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
Therefore, the said version of the plaintiff that the actual sale consideration was as per the agreement to sale dated 12.12.2012 cannot be believed. As per the provisions of Section 92 of the Evidence Act, 1872, when the terms of any contract has been reduced to the form of a document and when the said document specifically mentions of payment of sale consideration, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from its terms. The Courts have recorded concurrent findings rejecting the stand of the plaintiff that the actual sale price was as per the agreement to sale and the said Page 16 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined finding is well in accordance with Section 92 of the Evidence Act, 1872 and therefore the same does not warrant interference in the said concurrent findings of the Trial Court as well as the Appellate Court.
25. Moreover, Section 54 of the Transfer of Property Act, 1882 provides as under:
"54. 'Sale' defined.--'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised." The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale."
26. On bare perusal of the said saledeed produced on record, the said saledeed does not mention of execution of agreement to sell dated 12.12.2012 and also does not mention that the said saledeed is subject to the amount of sale consideration that is to be paid to the plaintiff.
27. Looking to the contents of the saledeed, the said saledeed also mentions that an amount of the saledeed has been paid by the purchasers to the sellor, in this case the Page 17 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined present plaintiffs have given receipt of the said consideration in the saledeed.
28. In view of the said fact, the saledeed cannot be declared cancelled and or null and void on the ground mentioned in the paint.
29. The judgment in case of Kewal Krishan (Supra) will also not be of much assistance to the plaintiff as in the said suit, the facts of the case were different. In that case, there was no evidence adduced by the defendant about payment of price mentioned in saledeeds as well as earning capacity at the relevant time and in the said case the power of attorney holder had executed two sale deeds in favour of his minor son and wife and in the present case, it is the plaintiff himself who had executed the said saledeeds in favour of the defendant and the facts in the present case are totally different, here the plaintiff is claiming that the sale consideration has not been paid.
30. The judgment in case of Menubhai Prabhudas Patel (Supra) will not be of much assistance to the plaintiffs as in the said case the question was of the interpretation of irrevocable power of attorney and in the present case there is no dispute with the documents which have been executed.
31. The judgment referred by the learned advocate for the Page 18 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined defendant in case of Bhimabhai Mansibhai Kariya (Supra) will support the case of the defendant. In the said judgment also, it has been held that, if there is no stipulation of any nature of the saledeed executed by the plaintiff in favour of the defendant and saledeed between the plaintiff and the defendant do not contain any clause which can be construed as conditions super added and looking to the facts of the present case also there is no stipulation in the saledeed which is under challenge that the said saledeed is subject to the payment of amount mentioned in the agreement to sale entered into between the plaintiff and the defendant and that there is any amount of sale consideration that has to be paid by the defendant to the plaintiff and only on the said amount the saledeed will be considered valid. The suit as filed by the plaintiff is to get the saledeed declared null and void for the so called unpaid consideration but even if the said fact is to be believed that the plaintiff has to recover some unpaid sale consideration, the Hon'ble Supreme Court in case of Dahiben (Supra) has categorically held that non-payment of part of sale consideration does not make the registered saledeed void nor does it constitute a valid ground for its cancellation.
32. Moreover, as per the provisions of law, there is a presumption that a registered document is validly executed and therefore the said registered document prima facie would be valid in law and the onus of proof would be on a person who Page 19 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined leads evidence to rebut the presumption. In the present case the plaintiff is not been able to rebut the said presumption.
33. In the facts of the present case, there is no substantial questions of law involved and the fact that plaintiff is claiming declaration to cancel the saledeed on the ground that the sale consideration as mentioned in the agreement to sale is not paid to the plaintiff cannot be entertained and on the factual aspect also there is a concurrent finding of the Trial Court and the Appellate Court and even as per the settled law the saledeed cannot be cancelled on the grounds mentioned in the plaint.
34. The law is well settled that the plaintiff cannot claim that even if the entire sale consideration has not in fact been paid, the same could not be a ground for cancellation of the saledeed. The law is also very clear that the definition of sale indicates that there must be a transfer of ownership from one person to another, which includes transfer of all rights and interest in the property which was possessed by the transferer to the transferee and that the transferer cannot retain any part of interest or right in the property and the definition of sale as per provisions of Section 54 of the Transfer of Property Act, 1882 indicates that the transfer of the ownership has to be made for a price paid or premised or part paid and part promised, therefore the price thus constitutes an essential ingredient of transaction of sale and therefore the actual Page 20 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined payment of the whole of the price at the time of execution of saledeed is not a sine qua non for completion of sale. In the present case, the sale consideration as mentioned in the saledeed has been stated to have been received by the plaintiff and in the saledeed itself the plaintiff has given acknowledgment of the receipt of the said amount but even otherwise, even if the whole of the price is not paid but the saledeed is executed, the sale would be complete and the title would pass on the defendant under the transaction, and even if the version of the plaintiff is to believed, the non-payment of a part of the sale price would not affect the validity of the sale as the title in the property having already been passed and even if the balance sale consideration is not paid, the said saledeed could not be invalidated on this ground. In order to constitute a sale the plaintiff must intent to transfer the ownership of the property on the agreement to pay the price either in the present time or in future and from the recital of the saledeed, it is very clear that the plaintiff has transferred all his right title interest in the suite property by executing registered sale deed.
35. In the present case, the conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Court below are not perverse, arbitrary so as to warrant interference. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinary will not Page 21 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined interfere with concurrent findings of fact except in exceptional cases where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done.
36. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
37. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position Page 22 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025 NEUTRAL CITATION C/SA/12/2025 ORDER DATED: 05/02/2025 undefined on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
38. Therefore, also the plaintiff has miserably failed to show that there is any substantial question of law involved in the present appeal and the substantial question of law which has been formulated in the memo of appeal are also not substantial question of law and on facts and the said factual aspect has well been considered by the Trial Court and the First Appellate Court.
39. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The plaintiffs have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. In view of the order passed in the Second Appeal, the connected Civil Application does not survive and the same is accordingly disposed of.
(SANJEEV J.THAKER,J) URIL RANA Page 23 of 23 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:30 IST 2025