Delhi District Court
Tarawati vs Rajagopal And Another (2009) 4 Scc 193 on 17 February, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 516449/2016
CNR No. DLSW010020092016
IN THE MATTER OF:
1. Tarawati
w/o Sh Surat Singh
r/o Village and P.O Mitraon
Najafgarh, New Delhi ... Plaintiff
v.
1. Phool Wati Jakhar (Deceased)
Through LRs
A. Rajinder Singh Jakhar
S/o Late S.S.Jakhar
R/o D-2050-A, Palam Vihar
Gurgaon, Haryana
B. Sunita Devi
W/o Sh Anil Rathi
R/o C-15, Green View Apartment
Delhi
C. Balbir Singh Jakhar
S/o Sh Rajinder Singh Jakhar
R/o D-2050-A, Palam Vihar
Gurgaon, Haryana
CS DJ ADJ No. 516449/2016
Page No. 1/47
D. Vikram Jakhar
S/o Sh Rajinder Singh Jakhar
R/o D-2050-A, Palam Vihar
Gurgaon, Haryana ... Defendants
Date of institution of suit: 07.12.2007
Date of judgment reserved: 27.01.2020
Date of pronouncement of judgment: 17.02.2020
JUDGMENT
1. A plaintiff has knocked the doors of the Court citing her illiteracy, perfidy of the defendant of having sped off in her car post signing, execution, registration of sale deed and having lured her to make the balance payment of sale consideration of ₹1,01,00,000/- (Rupees One crore and one lakh only).
2. The plaintiff, namely, Tarawati (hereinafter "plaintiff) now a septuagenarian had entered into a sale-purchase of her immovable property situated in village Mitraon, Najafgarh, Delhi with the defendant, namely, Phool Wati Jakhar (hereinafter "defendant"). The gravamen of the plaintiff against the defendant is of an unpaid sale price.
Pleadings
3. The factual matrix deciphered from the pleadings is that the plaintiff had entered into an agreement to sell dated 02.02.2007 with the defendant for the sale, purchase of an immovable property ad-mea-
CS DJ ADJ No. 516449/2016 Page No. 2/47suring 08bighas 02biswas situated under Khasra Nos. 67/18, 19/1, 22/2, 23, 76/2/1 and 3/1 in the revenue estate of village Mitraon, Na- jafgarh, New Delhi (hereinafter "suit property") for a total sale consid- eration of ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only) (hereinafter "total sale consideration"). The defendant paid an amount of ₹6,00,000/- (Rupees Six lakhs only), as earnest money to the plaintiff on 23.11.2006 and thereafter an amount of ₹2,00,000/- (Rupees Two lakhs only) at the time of signing of the agreement to sell dated 02.02.2007. It was agreed that the defendant shall pay the balance sale consideration to the plaintiff in two months period from the date of the agreement to sell and get the sale deed reg- istered in her name. The defendant on 21.03.2007 deposited an amount of ₹9,00,000/- (Rupees Nine lakhs only) in the bank account of the plaintiff's husband, namely, Surat Singh, an amount of ₹9,00,000/- (Rupees Nine lakhs only) in the bank account of the plain- tiff's daughter, namely, Kamlesh and an amount of ₹8,00,000/- (Ru- pees Eight lakhs only) in the bank account of the plaintiff. In this man- ner, an amount of ₹34,00,000/- (Rupees Thirty four lakhs only) was paid by the defendant to the plaintiff towards the total sale considera- tion. On 28.03.2007, a sale deed was signed, executed and registered by the plaintiff in the favour of the defendant for an amount of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) on the assurance by the defendant to the plaintiff that she would pay the balance amount of ₹1,01,00,000/- (Rupees One crore and one lakh only) (sic) after the registration of the sale deed, which was lying in CS DJ ADJ No. 516449/2016 Page No. 3/47 her car. The defendant did not pay the balance amount of the total sale consideration to the plaintiff after the registration of the sale deed and thus the plaintiff did not handover the possession of the suit property. However, the defendant on the basis of the sale deed applied for muta- tion on 20.04.2007 to get the suit property mutated in her name. The defendant despite several assurances to the plaintiff did not pay the balance sale consideration and hence the present suit for declaration that the sale deed dated 28.03.2007 be declared null and void and not binding upon the plaintiff and permanent injunction against the defen- dant.
4. The defendant on the other hand has urged the defence in her written statement that no written agreement to sell dated 02.02.2007 was entered between the parties. As per the defendant, an oral agree- ment to sell was entered between the parties for a total sale considera- tion of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thou- sand only) and it was mutually agreed that the transaction would be completed within two months. The defendant in her defence has urged that prior to the sale deed dated 28.03.2017, the plaintiff had applied for a no-objection with the office of Tehsildar with regard to the status and acquisition report pertaining to the suit property. The defendant has urged that she paid the complete sale consideration of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) to the plaintiff by demand draft and it was thereafter, the sale deed was not only signed, registered but also executed by the possession being handed over to the defendant by the plaintiff. The defendant has CS DJ ADJ No. 516449/2016 Page No. 4/47 averred in her written statement that the possession of the suit property is with her and the land is under cultivation. The defendant has also averred that one of the attesting witness to the sale deed dated 28.03.2007 is the husband of the plaintiff and the entire transaction be- tween the parties happened within his knowledge. The defendant has also urged in her defence that after the registration of the sale deed and being in possession of the suit property, she applied for mutation of the suit property on 20.04.2007 and the same was allowed in her favour by order dated 07.07.2007 passed by the concerned Tehsildar. The defendant denied the existence of any written agreement to sell dated 02.02.2007 and has averred that the plaintiff has based her claim on forged and fabricated documents, particularly, agreement to sell dated 02.02.2007. In short, the defendant has not only denied that any agreement to sell dated 02.02.2007 was entered in writing between the parties but also denied any earnest money and part-payment was made by the defendant to the plaintiff during the period between 23.11.2006 to 28.03.2007 towards the total sale consideration of ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only). The de- fence of the defendant is that the agreed total sale price of the suit property between the parties was ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only), which was duly paid by the de- fendant to the plaintiff prior to the date of signing, registration of the sale deed and it was only because of sale consideration being paid in full by the defendant did the plaintiff sign, execute and register the CS DJ ADJ No. 516449/2016 Page No. 5/47 sale deed on 28.03.2007 and handed over the possession of the suit property.
Issues
5. On completion of pleadings, admission-denial of documents and submissions advanced by the learned counsels for the parties, the following issues were framed by order dated 12.03.2008:
"1. Whether the Sale Deed executed by Plaintiff on 28 th March, 2007 and registered as document no. 2509 in additional Book No.1, Volume NO. 3553, on pages 151 to 170 in the office of Sub Registrar, Kapashera IX, New Delhi in respect of agricultural land measuring 16 bighas 02 biswas is null and void and not binding on the Plaintiff? - OPP
2. Relief."
6. Thereafter, the matter was listed for plaintiff's evidence. The plaintiff examined 6(six) witness in total from 05.05.2009 until 19.07.2017. The plaintiff closed her evidence on 19.07.2017.
7. The defendant during the pendency of the legal proceedings died on 04.05.2012 and the legal heirs of the defendant were brought on record vide order dated 31.10.2012.
8. On account of enhancement of pecuniary jurisdiction, the suit was transferred to the South West District vide order dated 08.12.2015.
9. The defendant examined 3(three) witnesses in her defence and the defence evidence was closed on 12.12.2017.
CS DJ ADJ No. 516449/2016 Page No. 6/47Submissions advanced by the learned counsels for the parties
10. Mr. S.K. Pal, learned counsel for the plaintiff and Mr. Joginder Sehrawat, learned counsel for the defendant advanced their oral argu- ments.
11. Mr. S.K.Pal, learned counsel for the plaintiff submitted that the written arguments filed by the plaintiff on 30.09.2019 may be read in supplement to his oral arguments. Mr. S.K. Pal, learned counsel for the plaintiff unleashed his arguments by submitting that the plaintiff in ev- idence categorically claim that she had agreed to sell her undivided one half share to the defendant for a total sale consideration of ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only) by a written agreement dated 02.02.2007 - Ex.DW1/PX-1 exe- cuted between the parties.
12. The learned counsel further submitted that though the defendant has claimed that no agreement to sale was executed between the par- ties but one of the defendant witnesses, namely, Parminder Singh (DW3) in paragraph No. 5 of his evidence by way of affidavit admit- ted that he finalized the land deal between the parties and also admit- ted about finalization of an agreement to sell. The learned counsel fur- ther submitted that Parminder Singh during his cross-examination ad- mitted about payment of token money.
13. Mr. Pal, learned counsel for the plaintiff submitted that the case urged by the plaintiff is that the deal of land was finalized on 23.11.2006 and it was the defendant who paid a token amount of ₹6,00,000/- (Rupees Six lakhs only) to the plaintiff. The learned coun- CS DJ ADJ No. 516449/2016 Page No. 7/47 sel further submitted that subsequently the defendant approached the plaintiff on 02.02.2007 with a written agreement and the same was ex- ecuted by her on receiving further payment of ₹2,00,000/- (Rupees Two lakhs only). The learned counsel further submitted that the plain- tiff admits receipt of further payment of ₹26,00,000/- (Rupees Twenty six lakhs only) on 21.03.2007, which were deposited in the bank ac- count of the plaintiff and her relatives. The learned counsel further submitted that the defendant made further payment of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) through de- mand draft on 28.03.2007, simultaneously got the signatures of the plaintiff on the sale deed with the assurance to handover the balance sale consideration of ₹1,01,00,000/- (Rupees One crore and one lakhs only) in cash after the registration of sale deed and the amount is kept for safe custody in the car.
14. The learned counsel for the plaintiff further submitted that the bank statements produced in evidence by the plaintiff corroborate the transactions with regard to the deposit of money. The learned counsel once again reiterated that Parminder Singh during his cross-examina- tion on 12.12.2017 admitted about the execution of agreement to sale and also about the payment of token money in that regard.
15. The learned counsel further submitted that no contention has ever been raised by the defendant with regard to any of the question raised by the plaintiff in the cross-examination of Parminder Singh.
16. Mr. Pal, the learned counsel for the plaintiff submitted that on the other hand the defendant has urged in her defence that she pur-
CS DJ ADJ No. 516449/2016 Page No. 8/47chased the suit property for a total sale consideration of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only). The learned counsel further submitted that the said assertion of the suit property being of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thou- sand only) is unbelievable because even on the basis of market rate of the area, the sale value of the suit property is way higher than ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only).
17. The learned counsel for the plaintiff submitted that the defen- dant witness, Parminder Singh in his cross examination claimed that the market rate of the suit property in the year 2007 was about ₹15.00 to ₹17.00 lakhs per Killa. The learned counsel submitted that the de- fence of the defendant that the suit property was purchased for ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) is wholly unbelievable.
18. The learned counsel for the plaintiff further submitted that the plaintiff has categorically admitted receiving an amount of ₹63,49,000/- (Rupees Sixty three lakhs and forty nine thousand only) an amount of ₹1,01,00,000/- (Rupees One crore and one lakh only) re- mains unpaid and accordingly the plaintiff did not hand over the pos- session of the suit property to the defendant. The learned counsel for the plaintiff submitted that in the aforesaid circumstances, the transac- tion of sale was not completed, as till date the possession of the suit property remains with the plaintiff and not with the defendant. The learned counsel further submitted that the certified copy of the rev-
CS DJ ADJ No. 516449/2016 Page No. 9/47enue record produced before the court confirms the continuous posses- sion of the plaintiff over the suit property. The learned counsel further submitted that Parminder Singh during his cross-examination admitted that possession was agreed to be handed over after the registration of the sale deed and with the total sale consideration not paid by the de- fendant to the plaintiff, the possession of the suit property remains with the plaintiff.
19. Mr. Pal, the learned counsel for the plaintiff submitted that the plaintiff has categorically proved her assertions and whereas the de- fendant has failed to disprove the claim of the plaintiff. The learned counsel for the plaintiff further submitted that mere registration of sale deed did not confer the right of the vendor upon the suit property, as the vendor did not comply with the terms of the agreement to sale as agreed between the parties. The learned counsel further submitted that the purchaser (defendant herein) of the suit property failed to comply with the terms of the sale transaction as stipulated in the agreement to sell by not making complete payment and further the possession of the suit property not being handed over by the plaintiff to the defendant, the sale deed has no binding effect upon the plaintiff.
20. Per contra, Mr. Joginder Singh Sehrawat, learned counsel for the defendant contended the arguments advanced by the learned coun- sel for the plaintiff. The learned counsel for the defendant contended that the instant suit by the plaintiff is based on the allegations that the defendant failed to pay the entire sale consideration to the plaintiff on the basis of an agreement to sell dated 02.02.2007. The learned coun- CS DJ ADJ No. 516449/2016 Page No. 10/47 sel further submitted that it is the case of the plaintiff that the parties entered into a sale purchase of the suit property for an amount of ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only) against which an amount of ₹63,49,000/- (Rupees Sixty three lakhs and forty nine thousand only) remains paid by the defendant and an amount of ₹1,01,00,000/- (Rupees One crore and one lakh only) re- mains unpaid.
21. Mr. Sehrawat, learned counsel for the defendant submitted that the defendant in her written statement categorically denied entering into any agreement to sell dated 02.02.2007 with the plaintiff. The learned counsel further submitted that the defendant during the pen- dency of the present legal proceedings died and her legal representa- tives were impleaded in accordance with law.
22. The learned counsel for the defendant submitted that to prove her case the plaintiff stepped into the witness box and during her cross-examination at length, the plaintiff admitted that the sale deed was executed in the presence of her husband not only after receiving the entire sale consideration mentioned in the sale deed but also the husband of the plaintiff was one of the attesting witnesses to the sale deed. The learned counsel for the defendant submitted that the sale deed was signed, executed and registered only after a no-objection certificate dated 26.03.2007. The learned counsel further submitted that on the very day of the registration and execution of the sale deed, the plaintiff had also executed a special power of attorney in favour of Parminder Singh. The learned counsel further submitted that post the CS DJ ADJ No. 516449/2016 Page No. 11/47 registration of sale deed, the defendant even applied for mutation of the suit property. The learned counsel drew attention of the Court that the plaintiff for the first time raised an objection with regard to the non-payment of the total sale consideration on 20.04.2007. The learned counsel for the defendant further submitted that the story por- trayed by the plaintiff falls like a pack of cards, as on one hand the plaintiff has urged that the defendant did not pay the total sale consid- eration to the plaintiff on the date of the decision of the sale deed, whereas on the other hand the plaintiff for the first time urged that the total sale consideration of the suit property was ₹1,64,50,000/- (Ru- pees One crore sixty four lakhs and fifty thousand only) and not ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only).
23. Mr. Sehrawat, learned counsel for the defendant submitted that the assertion by the plaintiff that she had purchased the stamp paper at the behest of the defendant is false and an afterthought. The learned counsel for the defendant submitted that the plaintiff despite the defen- dant from the word 'go' having denied the existence of any agreement to sell between the parties, failed to lead any evidence be it primary document and/or secondary evidence with regard to the purported agreement to sell dated 02.02.2007. The learned counsel for the defen- dant further submitted that the plaintiff did not even bother to lead an iota of evidence to prove from whom the stamp papers were purchased at Tis Hazari Court. The learned counsel further submitted that the plaintiff did not even summon the concerned stamp vendor to corrobo-
CS DJ ADJ No. 516449/2016 Page No. 12/47rate her claim of having procured the stamp paper and the concerned notary public before whom the purported agreement to sell was signed and notarised. The learned counsel for the defendant further submitted that the plaintiff failed to shift the onus upon the defendant with regard to the purported agreement to sell.
24. The learned counsel once again reiterated that the plaintiff failed to summon either of the attesting witnesses to the agreement to sell, despite one of them being her own husband.
25. Mr. Sehrawat, learned counsel for the defendant submitted that no claim is maintainable against the defendant by the plaintiff, as the entire transaction within the purview of Section 55 of the Transfer of Property Act, 1882 (hereinafter "TPA") stands completed. The learned counsel for the defendant further submitted that the plaintiff during her cross-examination categorically admitted that she has received the en- tire amount as mentioned in the sale deed. The learned counsel further submitted that the defendant during her cross-examination admitted that when the Sub Registrar asked her about the payment received, she did answer the same in affirmative.
26. To buttress his arguments, the learned counsel for the defendant placed reliance upon Shiv Kumar Sharma v. Madhu Aggarwal1 and submitted that once there exist a registered sale deed, the title in prop- erty is transferred unless the payment of consideration is a condition precedent for transfer of the title. The learned counsel further submit- ted that in the event of non-payment of balance sale consideration, the 1 2011(126) DRJ 286 CS DJ ADJ No. 516449/2016 Page No. 13/47 remedy of the seller is only to sue for the balance price and the seller cannot avoid the sale, as the law provides a statutory charge upon the property for the unpaid part of the sale price, particularly, where the ownership of the property has passed to the buyer before payment of the entire price under Section 55(4)(b), TPA.
27. The learned counsel further placed reliance upon Rajinder v. Harsh Vohra2 and submitted that non-payment of agreed sale consid- eration does not entitle the plaintiff to seek the relief of declaration of the sale deed as null and void. The learned counsel further submitted that Section 55(4), TPA contemplates a situation where title to the property has passed to the purchaser before the entire sale considera- tion has been paid. The learned counsel further submitted that in such a scenario the remedy for the seller would be for recovery of balance sale consideration and of having attachment of the property till such balance sale consideration is paid and not seeking a declaratory decree against the sale deed.
28. The learned counsel for the defendant further placed reliance upon the judgments pronounced by the High Court of Delhi in Ro- htash Singh v. New Zone Buildtech Pvt. Ltd. & Ors. 3 and KMJ Land Developers India Ltd. v. Karan Realtech Pvt. Ltd. 4 on the proposition that a suit for declaration of the sale deed in question being declared null and void would not be maintainable. The learned counsel for the defendant concluded his arguments on the note that the suit shall be 2 2010 (114) DRJ 410 3 CS(OS) No. 546/2916 date of decision 19.03.2019 4 CS(OS) No. 918/2015 date of decision 13.10.2015 CS DJ ADJ No. 516449/2016 Page No. 14/47 dismissed with exemplary costs as the same is not only barred by law but also bereft of any merits.
29. Mr. S.K. Pal, rejoined his arguments and submitted that the po- sition in law is well settled that fraud vitiates everything. The learned counsel submitted that in the case at hand the defendant played fraud upon the plaintiff on the pretext that the plaintiff must sign, execute and register the sale deed and the balance sale consideration of ₹1,01,00,000/- (Rupees One crore and one lakh only) lying in the car shall be paid to her after the registration of the sale deed. The learned counsel for the plaintiff submitted that the possession of the suit prop- erty is with the plaintiff and the claim of the legal representatives of the defendant that they are in possession of the suit property is false.
30. The learned counsel for the plaintiff submitted that the plaintiff had no other recourse than to seek declaration of sale deed in question as null and void, as the same is eclipsed by fraud and falsehood. The learned counsel concluded on the note praying for the relief of the plaintiff's suit being decreed in her favour and against the defendant along with the costs.
Reasoning and Findings
31. I, have perused the complete case record, considered and deliberated over the submissions advanced by the learned counsels for the parties. My issue-wise finding ensue in the following paragraphs of this judgment.
CS DJ ADJ No. 516449/2016 Page No. 15/47 Issue No. 1Whether the Sale Deed executed by Plaintiff on 28 th March, 2007 and registered as document no. 2509 in additional Book No.1, Volume NO. 3553, on pages 151 to 170 in the office of Sub Registrar, Kapashera IX, New Delhi in respect of agricultural land measuring 16 bighas 02 biswas is null and void and not binding on the Plaintiff?
32. The onus to prove the solitary issue was casted upon the plaintiff.
33. At the outset, I deem appropriate to observe that from the perusal of the plaint it is observed that the plaintiff has averred that the defendant did not pay an amount of ₹1,01,00,000/- (Rupees One crore and one lakh only) to the plaintiff against total consideration of ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only). The plaintiff has averred that the defendant only paid her ₹63,49,000/- (Rupees Sixty three lakhs and forty nine thousand only) an amount of ₹1,01,00,000/- (Rupees One crore and one lakh only) remains unpaid. This Court observes that keeping the averments of the plaintiff in mind, the correct unpaid amount would be ₹1,01,01,000/- (Rupees One crore one lakh and one thousand only) and not ₹1,01,00,000/- (Rupees One crore and one lakh only).
34. In support of her case, the plaintiff examined herself as PW1 and tendered her evidence by way of affidavit dated 25.04.2009 as Ex.PW1/A. The plaintiff also examined Mr. Vinod Kumar as PW2 who tendered his evidence by way of affidavit as Ex.PW2/A.
35. Mr. Satya Kumar Gosain, Manager Punjab National Bank, Najafgarh Branch, New Delhi stepped into the witness box for the CS DJ ADJ No. 516449/2016 Page No. 16/47 plaintiff, as PW3 and proved on record certified copy of account opening form of saving A/c No.1519000100521630 in the name of plaintiff as Ex.PW3/1 (OSR)(6 pages); statement of account of plaintiff as Ex.PW3/2 and a certificate under Banker's Book Evidence Act as Ex.PW3/3.
36. The plaintiff also examined PW4 - Mr. Manish, Ilaqua Patwari of revenue estate of village Mitraun, Tehsil Najafgarh, South West Delhi. PW4 produced the summoned record and proved on record the certified copy of Khatauni of village Mitraun for the year 2012-2013 bearing Khata Khatauni No.54/53 as Ex.PW4/A; Khasra girdawari pertaining to Khasra Nos.67/18, 19/1, 22/2, 23, 76/2/1 and 3/1 pertaining to year 2013-2014 to 2015/2016 as Ex.PW4/B(Colly); a copy of aks sizra of said property as Ex.PW4/C, and copy of Khatauni paimaish as Ex.PW4/D(Colly.).
37. Mr. M.S. Jakhar, office Kanongo, Tehsil Najafgarh, New Delhi testified before the Court as PW5 and produced the summoned record i.e. Khasra Girdawari No. 67/18, 19/1, 22/2, 23, 76/2/1min and 3/2 pertaining to year 2002-2003 to 2012-2013 and proved a certified copy thereof as Ex.PW5/A(Colly.).
38. PW6 - Mr. Pradeep Kumar, Single Window Operator from Bank of Baroda, Ujwa Branch, Najafgarh, New Delhi produced the summoned record and proved a certified copy of saving account opening form in the name of plaintiff as Ex.PW6/1(Colly.); certified copy of saving account opening form in the name of Surat Singh as Ex.PW6/2(Colly.), and certified copy of saving account opening form CS DJ ADJ No. 516449/2016 Page No. 17/47 in the name of Smt. Kamlesh as Ex.PW6/3(Colly.). PW6 also proved on record statement of account of the plaintiff as Ex.PW6/4(Colly.); statement of account of Surat Singh as Ex.PW6/5(Colly.), and statement of Smt. Kamlesh as Ex.PW6/6 and certificate issued under Banker's Book of Evidence Act, 1891, as Ex.PW6/7.
39. To prove her case, the plaintiff relied upon the following documents in support of her case:
S.No. Exhibit Mark put on the Description and Date, if any of the document document(s)
1. Ex.PW1/1 Khatauni
2. Ex.PW1/2 Aks Sajra
3. Ex.PW1/3 Notice dated 08.02.2008
4. Ex.PW1/3 to Ex.PW1/6 Bank statements showing receipts of payment
5. Ex.PW1/7 Statement of account
6. Ex.PW1/8 Sale deed dated 28.03.2007
7. Ex.PW1/9 Objection regarding mutation dated 20.04.2007
40. Whereas, on behalf of the defendant, her son Balbir Singh testified as DW1, who tendered his evidence by way of affidavit as Ex.DW1/A. This witness relied upon the following documents:
S.No. Exhibit Mark out on the Description and Date, if any of the document document(s)
1. Ex.DW1/1 Certified copy of sale deed bearing registration No.2509 CS DJ ADJ No. 516449/2016 Page No. 18/47
2. Ex.DW1/2 Certified copy of mutation file
3. Ex.DW1/3 Khata Khatauni
4. Ex.DW1/4 Khasra girdawari
41. The defendant also examined Mr. Suresh Kumar as DW2, who relied upon a complaint as Ex.DW2/1 (mentioned in evidence by way of affidavit as Ex.DW3/1).
42. The defendant also examined Mr. Parminder Singh as DW3 who tendered his evidence by way of affidavit as Ex.DW3/A and relied upon the document Ex.DW3/1 (mentioned in evidence by way of affidavit as Ex.DW2/1).
43. The plaintiff has preferred a suit for declaration and permanent injunction against the defendant with regard to the suit property. The plaintiff's case is that she sold the suit property to the defendant for an amount of ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only). The plaintiff has averred her case that she entered into an agreement with the defendant on 23.11.2006 and the defendant paid an earnest money of ₹6,00,000/- (Rupees Six lakhs only) in cash to the plaintiff. Thereafter, on 02.02.2007 the defendant and plaintiff entered into a written agreement to sell and the defendant further paid ₹2,00,000/- (Rupees Two lakhs only) in cash to the plaintiff. The plaintiff has averred in the plaint that by 21.03.2007, the defendant paid total amount of ₹34,00,000/- (Rupees Thirty four lakhs only) in cash to the plaintiff out of which the defendant on 21.03.2007 de-
CS DJ ADJ No. 516449/2016 Page No. 19/47posited an amount of ₹9,00,000/- (Rupees Nine lakhs only) in the bank account of the plaintiff's husband, namely, Surat Singh, an amount of ₹9,00,000/- (Rupees Nine lakhs only) in the bank account of the plaintiff's daughter, namely, Kamlesh and an amount of ₹8,00,000/- (Rupees Eight lakhs only) in the bank account of the plaintiff. The plaintiff has admitted that on 28.03.2007 a sale deed be- tween the parties for an amount of ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) was signed and registered at the office of the Sub Registrar, however, the defendant did not pay the balance sale consideration of ₹1,01,00,000/- (Rupees One crore and one lakh only) (sic) after the registration of the sale deed, which was purportedly lying in her car. The plaintiff has averred in the plaint that the possession of the suit property is with her and she never parted with the possession of the suit property, as the defendant failed to pay the total sale consideration in terms of the agreement to sell dated 02.02.2007.
44. The defence urged by the defendant in her written statement is that no agreement to sell dated 02.02.2007 was signed and executed between the parties. The defendant has also urged in her defence that she did not pay any money to the plaintiff other than ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) at the time of signing, registration and execution of the sale deed. The defendant has urged that the agreement to sell dated 02.02.2007 is a false and fabri- cated document. It is also urged by the defendant in her written state- ment that the plaintiff executed the sale deed in favour of the defen-
CS DJ ADJ No. 516449/2016 Page No. 20/47dant only after receiving the entire sale consideration and the aforesaid sale deed has been duly witnessed by the husband of the plaintiff. The defendant has averred in the written statement that the plaintiff at the behest of unscrupulous person has preferred the present suit to harass the defendant and extract more money from the defendant, as the prices in the vicinity of the suit property have escalated.
45. This Court cannot lose sight that the onus to prove the issue was casted upon the plaintiff vide order dated 12.03.2008. It is observed that on behalf of the plaintiff 6 (six) witnesses have stepped into the witness box, who are Jagbir Singh (PW2), Satya Kumar Gosain, Manager, Punjab National Bank, Najafgarh Branch, Delhi (PW3), Manish, Ilaqa Patwari (PW4), M.S. Jhakar, Office, Kanungo, Tehsil Najafgarh (PW5), Pradeep Kumar, Bank of Baroda Najafgarh (PW6) and plaintiff herself (PW1). It is also observed that the plaintiff's evidence lasted for nine years, a year short of a decade. On the other hand, defendant examined three witnesses during the time period of less than a month 15.11.2017 to 12.12.2017.
46. The main thrust of Mr. S.K. Pal, learned counsel for the plaintiff's argument was that one of the defendant's witness, namely, Parminder Singh (DW3) admitted that he finalized the deal between the parties and also admitted the agreement to sell. It was also contended by the learned counsel for the plaintiff that Parminder Singh (DW3) admitted payment of token money of ₹1,00,000/- (Rupees One lakh only).
47. At this stage, I deem appropriate to reproduce the entire CS DJ ADJ No. 516449/2016 Page No. 21/47 testimony of Parminder Singh (DW3) recorded on 12.12.2017, which reads as under:
"12.12.2017 DW-3 Parminder Singh, S/o Sh. Raghubir Singh, Aged about 42 years, R/o Village Kair, Delhi.
On SA I tender my evidence by way of affidavit which is Ex.DW3/A and bears my signatures at point 'A' and 'B'. I also rely upon document which is Ex.DW3/1 (referred in the affidavit as Ex.DW2/1).(objected to on the mode of proof).
XXX by Sh. S.K. Pal, Counsel for the plaintiff.
I am BA BE.d. I understand English. I also understand Hindi. I am aware of the contents of my affidavit in evidence. I signed the same after understanding its contents. Mr B S Jhakhar is the sone of the deceased defendant. I operate a gym. I have no other business besides the gym. It is correct that I have never been a property dealer. It is wrong to suggest that I have never been involved in facilitating any property deal. Vol. I facilitated the property in question in the present suit. Mr. Surender is known to me and he is a property dealer. Vol. It is through him that the present deal in question was faciliated by me. The said transaction was conducted in March 2007. The negotiation for the deal commenced in the beginning of 2007 itself. It is wrong to suggest that I went to plaintiff on 23.11.2006 alongwith Mr. Surender, Suraj Bhan and the defendant Smt. Phoolwati to negotiate the deal. I do not remember the exact date when the token money of Rs.1 lakh was paid. However, the deal was finalised for Rs.29.5 lakhs. The possession was agreed to be handed over after registration of the sale deed. The market rate of land in CS DJ ADJ No. 516449/2016 Page No. 22/47 2007 was about 15-17 lakhs per killa. Vol. The deal was finalised for the entire land and not at a rate per acre. It is wrong to suggest that token money of Rs.6 lakhs and not Rs.1 lakh were paid at the time of the finalisation of the deal. There was no agreement to sell regarding the deal of the land. It is wrong to suggest that the copy of the said document was given by me to the plaintiff. It is wrong to suggest that Rs.2 lakhs were given at the time of agreement to sell.
I have not done the deal of any other property except the property in question. I have no particular reason to offer why no agreement to sell was executed in writing. Vol. The token money had already been paid. It is wrong to suggest that I have stated incorrectly about the sale consideration of the land in question in my affidavit. It is wrong to suggest that actual sale consideration was fixed at Rs.1,65,50,000/- (One crore 65 lakhs fifty thousand). It is wrong to suggest that Rs.1,65,50,000/- was the actual value of the land in term of the market value at the relevant time. Vol. The above said rate of Rs.1,65,50,000/- do not exists even today. It is wrong to suggest that no part of the sale consideration was paid in my presence. Vol. The entire sale consideration of Rs.29.5 lakhs was paid by way of a demand draft in my presence. Vol. The registration was effected only after the DD was encashed in the account of the plaintiff. I cannot recall how many demand drafts were given to constitute the amount of Rs.29.5 lakhs. The DD was handed over by Sh Balbir Jhakhar to the plaintiff in my presence. I do not know the details of the bank account of the plaintiff. It is wrong to suggest that the consideration amount was deposited in my presence by Sh. Balbir Jhakhar in the bank account of the plaintiff as she is illiterate.
It is wrong to suggest that no power of attorney was given in my favour rather she had filed objections against the mutation on 20.04.2007 before the officer of CS DJ ADJ No. 516449/2016 Page No. 23/47 Tehsildar. I do not remember the date when I appeared and made the statement before the Tehsildar. It is possible that the statement may have been made on 25.05.2007 but I do not remember if exactly. Vol, the statement was certainly made in the year 2007. It is wrong to suggest that I made a false statement before the Tehsildar at the instance of Sh. Balbir Jhakhar despite objections being filed by plaintiff on 20.04.2007. It is wrong to suggest that after the registration, we went home. Vol. We went to take possession of the suit property. It is wrong to suggest that no possession was handed over to the defendant on 25.05.2007 or that the plaintiff continued to be in possession even after 25.05.2007 or that the plaintiff is still in possession. I do not know whether the mutation has been set aside by the Ld. DC. It is wrong to suggest that I am deposing falsely at the instance of Mr. B.S. Jhakhar, Advocate or his family members.
RO&AC Sd/-
ADJ-02:Dwarka Courts New Delhi/12.12.2017"
48. A witness must first be examined in chief and then, where the adverse party so desires, subjected to cross-examination, and for seek- ing any clarification the witness may be re-examined by the party call- ing him.5
49. The examination of a witness by the party who calls him is called his examination-in-chief.6 The examination-in-chief must relate to relevant facts. Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Leading questions must not, where objected to by the adverse party, be 5 See Section 138 of the Indian Evidence Act, 1872 6 See Section 137 of the Indian Evidence Act, 1872 CS DJ ADJ No. 516449/2016 Page No. 24/47 asked in an examination-in-chief unless permitted by the Court. The Court may permit leading questions as to matters which are introduc- tory or undisputed or which have, in its opinion been already suffi- ciently proved.7 Failure to examine an important witness might affect a fair trial.
50. Cross-examination is the examination of one party's witness by the adverse party.8 Adverse party does not mean only the opposite party and a party has a right to cross-examine even a Court witness summoned by the Court. As a general rule, evidence is not legally ad- missible against a party, who at the time it was given had no opportu- nity to cross-examine the witness or of rebutting their testimony by other evidence.
51. Cross-examination must relate to relevant facts, but it need not be confined to the facts to which the witness testified in his examina- tion-in-chief. Leading questions may be asked in cross-examination. The cross-examination is the litmus test to ascertain the veracity of a witness and it is an effective tool to draw admissions from a party and/or witness.
52. From the careful perusal of the testimony of Parminder Singh (DW3) it is observed that there is no clear admission with regard to the agreement to sell dated 02.02.2007. It is also observed that there is no admission by Parminder Singh (DW3) which would prove the case of the plaintiff. The dictum of law is as old as the hills, one who averse 7 See Section 142 of the Indian Evidence Act, 1872 8 See Section 137 of the Indian Evidence Act, 1872 CS DJ ADJ No. 516449/2016 Page No. 25/47 must prove. The plaintiff has to stand on her own legs and not on the short comings of the defendant's evidence. This Court observes that no favorable inference can be drawn to the advantage of the plaintiff from the testimony of Parminder Singh (DW3).
53. Further, this Court has also observed that the plaintiff was well versed about the existence of agreement to sell being denied by the de- fendant in her written statement. It is also observed that the plaintiff subsequent to the filing of the written statement issued notice under Order XII, Rule 8, CPC, to the defendant. The defendant in response to the notice under Order XII, Rule 8, CPC, once again denied the ex- istence and possession of the agreement to sell dated 02.02.2007. It is observed that once the defendant denied the agreement to sell dated 02.02.2007 even after issuance of notice, the plaintiff was within her right to lead secondary evidence in terms of Section 65 and 66 of the Evidence Act, 1872. However, no such recourse was adopted by the plaintiff.
54. This Court while disposing of an application moved by the plaintiff under Order XVIII, Rule 17, CPC by order dated 14.10.2019 observed a peculiar fact, which clearly distinguishes the case at hand from the numerous judgments relied by the plaintiff, the fact being that one of the attesting witnesses not only to the sale deed dated 28.03.2007 but also to the agreement to sell dated 28.03.2007 is one Surat Singh, who is the husband of the plaintiff. It is observed that Surat Singh did not step into the witness box to depose for the plain- tiff. It is also observed that from the case record that though the evi-
CS DJ ADJ No. 516449/2016 Page No. 26/47dence by way of affidavit of Vinod Kumar, who is the second attesting witness to the agreement to sell dated 28.03.2007 was filed and is on record, however, it was the plaintiff who on 19.08.2014 dropped Vinod Kumar, as her witness and the plaintiff out of her own accord chose Jasbir Singh to be examined as a witness.
55. The Court had placed reliance upon the judgment passed by the High Court of Delhi in the case of Suman Kapoor v. Rakesh Ku- mar,9wherein it has been held that onus to prove was on the plaintiff and once the execution of the documents was denied by the defendant, the plaintiff cannot be permitted to seek expert opinion and lead addi- tional evidence after the entire trial is over.
56. This Court had observed in the order dated 14.10.2019 that the application under Order XVIII, Rule 17, CPC, was moved by the plaintiff on 12.12.2017 i.e. the date when the defendant closed her evi- dence. Thus, it is observed that the plaintiff for reasons best known to her waited until the last day and only when the defendant closed her evidence, did present a motion under Order XVII, Rule 17, CPC. This Court vide order dated 14.10.2019 dismissed the application moved by the plaintiff and held that the plaintiff moved the said application to fill the lacuna in her case.
57. This Court observes that the order dated 14.10.2019 dismissing the plaintiff's application under Order XVIII, Rule 17, CPC passed by this Court until today remains unchallenged by the plaintiff.
9 2015 (37) RCR (Civil) 261 CS DJ ADJ No. 516449/2016 Page No. 27/47
58. Section 54, TPA defines sale, mode of transfer by sale and con- tract for sale. Section 54, TPA states that 'sale' is a transfer of owner- ship in exchange for the price paid or promised or part-paid and part- promised. Therefore, sale is transfer of ownership for money consider- ation. It implies an absolute transfer of all rights in the property sold. No rights in property sold are left in the transferor. The two elements which are necessary to constitute a sale or transfer of ownership and money consideration. Ownership means bundle of all the rights and li- abilities in the property. When there is transfer of ownership of all these rights and liabilities are transferred to the transferee and nothing is left for the transferor. The ownership of the property must be trans- ferred in exchange of money. The money in exchange of ownership is called the 'price'. Where the ownership is transferred in exchange or ownership of some other property, it is known as 'exchange' and where ownership is transferred for nothing, it is known as 'gift'. Transfer of ownership only for money consideration is known as 'sale'.
59. The essential elements of the sale are parties, subject matter, money consideration and conveyance.
60. There must be at least two parties in a sale. The person who transfers the property is known as transferor or seller or vendor. The person purchasing the property is known as transferee, purchaser or vendee. For constituting a valid sale, both the seller and purchaser must be competent on the date of sale. The seller must be competent to contract, i.e., he must be of sound mind and must have attained the age CS DJ ADJ No. 516449/2016 Page No. 28/47 of majority. Besides that, he must be the owner of the property which he is going to sell. The seller must have a legal title to the property only then he can sell the property.
61. The Supreme Court in Kaliaperumal v. Rajagopal10 emphasized that the execution and registration of sale deed are mechanical acts and therefore not sufficient in themselves for passing title and owner- ship. All this must be done with the intention of transferring title. The intention of the parties has to be ascertained and such intention has to be gathered from the recitals of the sale deed.
62. The subject matter of transfer ought to be an immovable prop- erty to constitute as a sale under the Transfer of Property Act, 1882, whereas the sale of movable property is covered under the Sale of Goods Act, 1930.
63. The money consideration, i.e. the price is the essential element of a sale. At the time of contract of sale the price must be ascertained for which the property is going to be transferred. The price may be paid at the time of execution of sale, before in advance or after the sale.
64. In the words of Fry, "In all sales it is evident that price is an es- sential ingredient, and that where it is neither ascertain nor rendered ascertainable, the contract is void for incompleteness, and incapable of enforcement; it is not, however, necessary that the contract should be in the first instance determine the price. It may either appoint a way in which it is to be determined or it may stipulate for a fair price." 10 (2009) 4 SCC 193 CS DJ ADJ No. 516449/2016 Page No. 29/47
65. Non-payment of sale consideration does not vitiate a sale if it is promised to be paid. But if an assertion is made that the consideration is already been paid and it is found to be incorrect, the transaction does not amount to a sale.
66. For the validity of the sale, inadequacy of consideration is not any relevant factor. Even where the price or consideration is found by the Court to be less than the market value of the property, the sale is held to be valid. The consideration must be reasonable, where the con- sideration is found to be too low or illusory, the Court may infer fraud- ulent or a sham transfer. The Court may even presume fraud, coercion or mistake and the sale may be invalidated on any of these grounds.
67. Payment of price is not a necessary condition for the validity of the sale, it is not a sine qua non for the completion of a sale. The TPA itself lays down that the price may have been paid or promised to be paid or partly paid and partly promised to be paid. The real test is the intention of the parties. In order to constitute a sale, the parties must intend to transfer the ownership of the property and they must also in- tend that the price would be paid either in the present or in future. The intention is to be gathered from the recitals in the sale deed, conduct of the parties and the evidence on record.
68. Section 54, TPA, has provided two modes of transfer of immov- able property - delivery of possession and registration of sale deed. Where the property is tangible immovable property of the value of ₹100/- (Rupees One hundred only) and of words or in the case of a re- version or other intangible thing, transfer can be made only by a regis-
CS DJ ADJ No. 516449/2016 Page No. 30/47tered instrument. Delivery of tangible immovable property takes place when the seller puts the buyer or such person as he directs in posses- sion of the property. Delivery of possession means transferring of physical control of the property to the buyer.
69. The transfer of an immovable property can only be effected by executing a registered document, mere making of agreement of sale or executing of power of attorney would not transfer the right, title or in- terest in an immovable property.
70. In Bishundeo Narain Rai v. Anmol Devi, 11the Supreme Court held that a combined reading of Section 8 and 54, TPA suggests that through an execution and registration of the sale deed, the ownership and all interests in the property passed to the transferee, yet that would be on terms and conditions embodied in the deed indicating the inten- tion of the parties. The intention of the parties can be gathered from the averments in the sale deed itself or by other attending circum- stances.
71. Where the sale is to be completed only by the registered instru- ment, the ownership is deemed to pass on execution of the sale deed not on the registration of the deed. In cases of sales, where registration is compulsory the sale is not complete till registration is done but once registration is made it relates back to the date of execution and title would be deemed to have passed on that date. Registration is the prima facie proof of the intention of seller that he wanted to transfer the ownership on the date of the execution. But where some condi- 11 (1998) 7 SCC 498 CS DJ ADJ No. 516449/2016 Page No. 31/47 tions laid down in the deed itself, the title shall not pass on the pur- chaser till that condition in the deed is fulfilled. The question as to whether on the execution of the sale deed title passes to the vendee or not depends upon the intention of the parties.
72. Section 55, TPA deals with rights and liabilities of both the buy- ers and the sellers. The obligations imposed by Section 55, TPA are covenants and in the nature of statutory obligations. Rights and liabili- ties of the buyer and seller can be categorized under two broad head- ings - before completion of sale and after completion of sale. The same are mentioned as below:
I. Before Completion of Sale
a. Seller's Liabilities: -
i. To disclose material defects - Section 55(1)(a) ii. To produce title deeds for inspection - Section 55(1)(b) iii. To answer questions as to title - Section 55(1)(c) iv. To execute a proper conveyance - Section 55(1)(d) v. To take care of property and title deed - Section 55(1)(e) vi. To pay public charges and rent accrued - Section 55(1)(g) b. Seller's Rights: -
i. To take rents and profits - Section 55(4)(a) c. Buyer's Liabilities: -CS DJ ADJ No. 516449/2016 Page No. 32/47
i. To disclose facts materially increasing value of property - Section 55(5)(a) ii. To pay the price - Section 55(5)(b) d. Buyers' Rights: -
i. To charge for price prepaid - Section 55(6)(b) II. After Completion of Sale a. Seller's Liabilities: -
i. To give possession - Section 55(1)(f) ii. Implied covenant for title - Section 55(2) iii. To deliver title deeds on receipt of price - Section 55(3) b. Seller's Rights -
i. Charges for price unpaid - Section 55(4)(a) c. Buyer's Liabilities -
i. To bear loss to the property - Section 55(5)(c) ii. To pay outgoings - public charges and rents - Sec- tion 55(5)(d) d. Buyer's Rights i. Benefit of increment - - Section 55(b)(a)
73. Section 55(1)(d), TPA states that it is the duty of the buyer to execute a proper conveyance on the payment of what tender of the amount due in respect of the price. Conveyance means the transfer of ownership. The same is done by the signing of the sale deed or putting thumb impressions on the sale deed by the seller. The duties of both the seller and the buyer under this clause are reciprocal. When the CS DJ ADJ No. 516449/2016 Page No. 33/47 buyer makes the payment the seller has to execute the conveyance. It must be on proper place and proper time. But what is proper place and time, it has not been specified in TPA. The proper place and time may be decided by the parties by their mutual agreement. However, the conveyance must be within reasonable time after tender of price. In case there is no stipulation fixing the time of execution and the seller makes unreasonable delay in executing conveyance, the proper course is to give notice making time the essence of the contract.
74. The clause (b) of sub-section 5 of Section 55, TPA states that the buyer is bound to pay or tender, at the time and place of complet- ing the sale, the purchase money to the seller or to such person as he directs provided that where the property is sold free from encum- brances, the buyer may retain out of the purchase money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the person is entitled thereto. For the completion of sale, the seller has the duty of execution of deed and the buyer has corresponding duty of payment of price. The buyer is not bound to pay the full amount before transfer or ownership. He may either pay the price or promises to pay at the time of completion of sale. The buyer is not bound to pay the price until the conveyance is executed.
75. The seller's right before sale, as per Section 55(4)(b), TPA are that the seller is entitled to the rents and profits of the property till the ownership of it passes to the buyer. Sale is completed when the owner- ship is transferred to the buyer. Till the ownership is transferred the CS DJ ADJ No. 516449/2016 Page No. 34/47 seller continues to be the owner of the property and in that capacity he becomes entitled to the rents and profits of the property. Till that time the seller has every right to enjoy the profits of the property.
76. With regard to the seller's rights after the sale, Section 55(4)(b), TPA states that where the ownership of the property has passed to the buyer before payment of the whole of the purchase money, the seller becomes entitled to a charge upon the property -
a. in the hands of the buyer, b. any transferee without consideration, or c. any transferee with notice of non-payment, d. for the amount of the purchase money or if any part of the purchase money remaining unpaid, and e. for interest on such amount of purchase money or any part unpaid from the date on which the possession has been de- livered.
77. The completion of sale of an immovable property does not de- pend upon the payment of price because the price may be paid or promised to be paid. Therefore, this right has been given for the pro- tection of the seller who has given possession of his property to the buyer but has not received full price. The seller is given a right to re- cover the unpaid purchase money from the property. This is known as statutory charge of the seller for the unpaid price. The charge creates a right of payment out of the property specified period it may be created by the act of parties or by operation of law. Under Section 55(4)(b), TPA, the charge is created by operation of law and the property speci-
CS DJ ADJ No. 516449/2016 Page No. 35/47fied for securing the money is sale property. Under this right, the seller is not entitled to retain possession, therefore the charge is said to be a non-possessory lien. The seller may enforce his charge for recovery of purchase money under Section 100, TPA by a suit against the buyer for sale of the property. The seller is entitled to claim not only the un- paid price money but also the interest on such amount. Where the buyer is already in possession of the property, the seller is entitled to claim interest from the date on which such possession was delivered, not from the date on which the transfer of ownership took place.
78. From the above discussion, the ordinary rule governing sellers and purchasers that the payment of a consideration is simultaneous with and at the time, when the conveyance is executed by a seller may be deviated from in case of an agreement with the parties. Where the recitals are indecisive, the surrounding circumstances of the conduct of parties is a relevant factor. The sale is complete on registration even though the price has not been paid, however promised to be paid. The intention of the parties has to be looked into, to decide whether the deed operated, in fact, as the transfer of interest from the vendor to the vendee on the date of its execution. Once the intention is ascertained, it does not matter whether the whole of the consideration or part of it remains unpaid. Further, where a registered deed of sale purports to operate as a conveyance of the title, the burden of proving contrary in- tention lies on the party who asserts this fact.
79. Where the price is not paid, the seller may not set aside the sale or sue for getting the possession back, however, may only sue for the CS DJ ADJ No. 516449/2016 Page No. 36/47 price unless the purchaser commits a fraud or there is an intention to the contrary, entitling the purchaser to sue for possession or a clear recitals in the deed that possession is not delivered - See Vidhyadhar v. Mankikrao.12
80. The mere fact of non-payment of money does not prevent the passing of ownership of the purchase property unless the parties in- tend to postpone the operation of conveyance till the consideration had actually been paid and the purchaser was entitled to sue for possession of the property notwithstanding such non-payment. The unpaid seller may not retain possession to enforce payment of the money due to him. However, notwithstanding and admission in the sale deed about the payment of the purchase money it is open to the vendor to lead ev- idence to the contrary - See Sah Lal Chand v. Indrajit.13
81. Section 14 of the Indian Contract Act, 1872 (hereinafter "Con- tract Act") states that the consent is said to be free when it is not caused by: -
a. coercion, as defined in section 15, or b. undue influence, as defined in section 16, or c. fraud, as defined in section 17, or d. misrepresentation, as defined in section 18, or e. mistake, subject to the provisions of sections 20, 21 and 22.
12 AIR 1999 SC 1441 13 (1900) ILR 22 All 370 CS DJ ADJ No. 516449/2016 Page No. 37/47 Consent is said to be so caused when it would not have been given but for the existence of such cogent, undue influence, fraud, misrepresentation or mistake.
82. The definition of fraud is enshrined in Section 17 of the Con- tract Act. 'Fraud' means and includes any of the following acts com- mitted by a party to a contract, or with this connivance, or by his agent, with intent to deceive another party there two or his agent, or to induce him to enter into the contract: -
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
83. An explanation to Section 17 of the Contract Act states that mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech.
84. A contract, consent to which is obtained by fraud, is avoidable. The innocent party has the option to the signed contract, or to affirm it and insist that he be put in position in which he would have been if the CS DJ ADJ No. 516449/2016 Page No. 38/47 representations were true. After rescission, he is liable to restore the benefit received by him.
85. Making a promise without intending to perform it is fraud. This specie of fraud does not appear to require any misrepresentation of fact, but it is a representation of the promisor's intention of performing it. It must be shown that the promise had no intention of performing the promise at the time of making it, and any subsequent conduct or the presentation is not considered for this purpose. If a person buy goods without any intention of paying for them, there is fraud. Simi- larly, there is fraud if a person induces another person to enter into a deed of sale, when he had no intention of offering the sale considera- tion.
86. However, lack of intention to perform the promise when made must be proved, for non-performance by itself does not establish that the person had no intention of performing the promised when he made it.
87. A party relying on fraud must plead and prove all specific par- ticulars of the fraud with the dates and items - See Order VI, Rule 4 CPC and Bharat Dharma Syndicate Ltd. v. Harish Chandra.14 The allegations of fraud must be clear, definite and specific.
88. Being very secret in its movements, fraud is not capable of be- ing established by positive and tangible evidence. It is, therefore, suf- ficient if the evidence given is such as may lead to an inference that fraud must have been committed, in most cases by giving circumstan- 14 AIR 1937 PC 146 CS DJ ADJ No. 516449/2016 Page No. 39/47 tial evidence. The burden of establishing fraud is on the person who alleges it. Fraud must be established beyond reasonable doubt, but can be established by balancing probabilities and bearing in mind the pre- sumption of innocence and honesty. The level of proof required is ex- tremely high. Fraud cannot be established merely on the basis of sus- picion and averments in the pleadings, there must be material evidence to prove it - See Svenska Handelsbanken v. Indian Charge Chrome.15 Although, fraud may be inferred from the surrounding cir- cumstances and conduct of the parties the circumstances must be such, as to exclude any other probability.
89. The title of the seller passes to the purchaser on registration of the irrespective of the fact as to whether the consideration has been paid or not by the purchaser, subject to the contrary intention of the parties to the transaction. This Court observes that the plaintiff has failed to prove that the parties had entered into an agreement to sell dated 02.02.2007 and the total sale consideration agreed between the parties was ₹1,64,50,000/- (Rupees One crore sixty four lakhs and fifty thousand only) and not ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only).
90. This Court rules that the suit preferred by the plaintiff against the defendant is barred by Section 55(4)(b), TPA, as it provides that in the absence of a contract to the contrary, where the ownership of a property has passed to the buyer before the payment of the whole of the total sale consideration, the seller is entitled to a charge upon the 15 (1994) 1 SCC 502 CS DJ ADJ No. 516449/2016 Page No. 40/47 property in the hands of the buyer for the amount of the total sale consideration or any part thereof remaining unpaid and for interest on such amount. The seller is not entitled to seek declaration of sale deed but is entitled only to seek recovery of the balance sale consideration. Thus, the relief of declaration of the sale deed as null and void in the present suit is clearly barred.
91. On thread bare perusal and examination of the sale deed, the intention of the parties can be gathered. The sale deed admits receipt of entire sale consideration with no unpaid amount by the defendant to the plaintiff. It is observed that the sale deed records that the defendant shall be the full and absolute owner of the suit property, as the title stands conveyed for a sale consideration. The sale deed does record the delivery of possession of the property. The sale deed does empower the defendant to have the suit property mutated in her favour
- See Butna Devi v. Amit Talwar.16
92. In the case at hand, the sale consideration mentioned in the sale deed is blatantly inconsistent with the sale consideration pleaded in the plaint. This Court observes that in a registered sale deed of the suit property, the plaintiff has admitted not only in the sale deed but also during her cross-examination of having received the entire sale consideration as mentioned in the sale deed, the plaintiff is barred by Section 92 of the Indian Evidence Act, 1872 from pleading and proving in contradiction of registered sale deed. The reliance is placed upon the pronouncement of the High Court of Delhi in Om Prakash v. 16 2014 SCC OnLine Del 3494 (DB) CS DJ ADJ No. 516449/2016 Page No. 41/47 IOCL Officers Welfare Society17 where His Lordship, Rajiv Sahai Endlaw, J., rejected the plaint.
93. As per the plaintiff, the sale deed was registered pursuant to the earlier unregistered agreement to sell dated 02.02.2007. That being the case, once the plaintiff admitted receipt of entire sale consideration, the earlier unregistered agreement to sell would stand novated and ceased to have any effect. The registered documents have to be given their due sanctity. If such pleas are permitted to be taken, no title of immovable properties would ever attain finality - See Shanti Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari.18
94. This Court observes that the reliance placed by the learned counsel for the defendant upon KMJ Land Developers India Ltd. v. Karan Realtech Pvt. Ltd.19 apply on its four to the case at hand. The relevant extract of the aforesaid pronouncement of His Lordship, Valmiki J. Mehta, J., is reproduced in verbatim as under:
"2. The subject suit is a suit for declaration, permanent injunction, mandatory injunction and for cancellation of the Sale Deed dated 14.3.2014 (registered on 20.3.2014) executed by the plaintiff in favour of the defendant no.1 whereby plaintiff sold his half undivided share in plot no.D- 14, Khasra no.446, Village Tihar, Fateh Nagar, New Delhi- 110 018 admeasuring 200 sq yds (hereinafter referred to as the 'suit property'). Plaintiff had earlier purchased the suit property in terms of the registered Sale Deed dated 1.6.2013. Plaintiff states that the Sale Deed dated 14.3.2014 in favour of the defendant no.1 was executed by him for a 17 2019 SCC OnLine Del 6719 18 (2010) 5 SCC 104 19 CS(OS) No. 918/2015 date of decision 13.10.2015 CS DJ ADJ No. 516449/2016 Page No. 42/47 consideration of Rs.54 lacs and the possession was also handed over to the defendant no.1 in terms of the registered Sale Deed, however, the suit had to be filed because the defendant no.1 has failed to pay an amount of Rs.34 lacs out of the consideration of Rs.54 lacs payable in terms of the Sale Deed dated 14.3.2014. The case of the plaintiff is that the Sale Deed refers to part payments by three cheques for Rs. 13,46,000/-, Rs.10,00,000/- and Rs.10,00,000/-, but these cheques were returned to the defendant no.1 because defendant no.1 said that there was an error in the account from where the cheques had been given. Defendant no.1 promised to replace the cheques within one week from the date of registration of the sale deed and which the plaintiff company agreed in view of the good relationship with the defendant no.1/company, however, the defendant no.1 has failed to give fresh cheques for the three cheques which were returned to the defendant no.1. Accordingly, plaintiff prays for reliefs of cancellation of the Sale Deed dated 14.3.2014 and the related reliefs.
3. In the written statement filed by defendant no.1 it is stated that at the time of registration of the sale deed, entire consideration was paid to the plaintiff and the fact that the entire consideration is received by the plaintiff is mentioned as per the endorsement found on the back side of the first page of the sale deed made before the Sub-Registrar at the time of registration. The Sale Deed dated 14.3.2014 was registered on 18/20.3.2014. The defendant no.1 claims that the entire amount of Rs.54 lacs stood paid to the plaintiff at the time of execution and registration of the sale deed and no amount/balance remained payable by the defendant no.1 to the plaintiff. The defendant no.1 seeks dismissal of the suit by placing reliance upon Section 55(4)(b) of the Transfer of Property Act, 1882 which provides that in case in terms of the sale deed executed, a particular amount of balance price is not paid, then, there is no right to get the sale deed cancelled but the right is only to recover the balance price and for which there will be lien on the immovable property for payment of the balance price. In this regard, reliance is CS DJ ADJ No. 516449/2016 Page No. 43/47 placed upon the judgment of the Supreme Court in the case of Kaliaperumal Vs. Rajagopal and Another (2009) 4 SCC 193 and two judgments of this Court in the cases of Shiv Kumar Sharma Vs. Madhu Aggarwal 2011 X AD (Delhi) 273 and RFA No. 865/2003 decided on 8.5.2012 titled as Man Mohan Batra Vs. Bharat Bhushan Batra, and which judgments relied upon the ratio of the aforesaid judgment of the Supreme Court in the case of Kaliaperumal (supra).
4. The relevant observations and the ratio of the Supreme Court in the judgment in the case of Kaliaperumal (supra) are contained in para 17 of the judgment and which para reads as under:-
"17. It is now well settled that payment of 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 parties was that title should pass on execution and registration, title would pass to the 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."
5. Section 55(4)(b) of the Transfer of Property Act reads as under:
CS DJ ADJ No. 516449/2016 Page No. 44/47"55(4) The seller is entitled- (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 the non-payment, for the amounts 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."
6. In the present case, the terms of the sale deed do not show that in the absence of payment of consideration the sale deed will become void and it is not stated in the sale deed that payment of sale consideration is a pre-condition for the title to be transferred to the defendant no.1.
.........
.........
7. None of the aforesaid 14 clauses of the Sale Deed provide that in case consideration, either in whole or in part, is not paid, then, the title will not be conveyed under the sale deed. There is no mention in the sale deed that payment of the entire sale consideration is a condition precedent for transfer of the title in the suit property. Clearly, therefore, assuming for the sake of arguments that plaintiff has not received the complete consideration under the sale deed, though the defendant no.1 has claimed that the entire consideration has been paid, the entitlement of the plaintiff will not be for filing the present suit seeking the relief of cancellation of the sale deed and the related reliefs but for recovery of the balance price allegedly not paid by the defendant no.1."
[Emphasis added by underlining and highlighting of text]
95. The intention of the parties can be gathered from the recitals CS DJ ADJ No. 516449/2016 Page No. 45/47 and the clauses of the sale deed itself. This Court observes from the gainful reading of the sale deed dated 28.03.2007 (Ex.D-2) that the total sale consideration in clause 1 is mentioned as ₹29,49,000/- (Rupees Twenty nine lakhs and forty nine thousand only) and the receipt of the same has been duly acknowledged by the vendor (plaintiff herein). It is also observed that the clause 2 of the sale deed clearly states that the physical and vacant possession of the land have been handed over to the vendee (defendant herein) on the execution of the sale deed. Clause 9 of the sale deed states that the vendor handed over all the original documents and papers in respect of the said land to the vendee on the execution of the sale deed. Lastly, one of the attesting witnesses to the sale deed is Surat Singh, who is the husband of the plaintiff herein and who never stepped in the witness box.
96. This Court observes that the suit of the plaintiff fails on the following counts:
(a) law is not in the favour of the plaintiff- See Section 55(4)(b), TPA ;
(b) plaintiff has failed to stand on her own legs, and
(c) circumstantial evidence is not cogent to empower the plaintiff for a decree against the defendant.
97. In view of the above observations and discussions, this Court arrives at a conclusion that the suit preferred by the plaintiff is misconceived and in contravention of law. The issue No.1 is accordingly, answered against the plaintiff and in favour of the defendant.
CS DJ ADJ No. 516449/2016 Page No. 46/47Issue No.2 Relief
98. As the issue No.1 has been held against the plaintiff and in favour of the defendant, this Court is of the opinion that the plaintiff is not entitled to any relief.
99. The suit of the plaintiff is dismissed with no order to costs. Consequentially, all interim applications stands disposed of as infructuous. Let a decree sheet be drawn accordingly.
100. File be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.02.18 17:13:03 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on February 17, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi [checked and released for upload on the CIS on 18.02.2020] CS DJ ADJ No. 516449/2016 Page No. 47/47