Allahabad High Court
Raj Dutt And Others vs Nageshwar And Others on 2 August, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on:- 16.07.2019 Pronounced on:- 02nd August, 2019 Court No. - 22 Case :- SECOND APPEAL No. - 50 of 2002 Appellant :- Raj Dutt And Others Respondent :- Nageshwar And Others Counsel for Appellant :- U.S.Sahai,U.S.Sahai Counsel for Respondent :- Q.M Haq,M M Haque,Mohd. Mustafizul Haq And Case :- SECOND APPEAL No. - 51 of 2002 Appellant :- Raj Dutt And Others Respondent :- Nageshwar And Others Counsel for Appellant :- U.S.Sahai,H.S.Sahai,U.S.Sahai Counsel for Respondent :- M M Haque,Mohd. Mustafizul Haq,Q M Haque Hon'ble Ved Prakash Vaish, J.
1. Heard Sri U.S. Sahai, learned counsel for the appellants and Sri Q.M. Haque, learned counsel for the respondents.
2. By this common judgment, I will decide two appeals bearing Second Appeal No.50 of 2002 and Second Appeal No.51 of 2002 as both the appeals are against common judgment dated 28.11.2001, both the appeals are between the same parties and involve similar question of law.
3. The brief facts of Second Appeal No.50 of 2002 are that the appellants (plaintiffs in the original suit) filed a suit bearing Original Suit No.488 of 1990 for cancellation of the sale deed dated 02.02.1990 executed by Smt. Arti Devi in favour of the respondents/defendants which was registered on 21.03.1990. The case of the appellants/plaintiffs was that Sri Ram Bharose was owner of agricultural land in Gata No.124/0-50 and Gata No.130-sa/0-50 situated at Village Nurpur, Pargana Pahadpur, Tehsil Karnailganj, Gonda. The genealogical tree of the family of appellant is as under:-
Rambharose A A A A Shubhkaran] Satyanarayan] Madhav Prasad ׀ (saint) A A A A Rampher Rajdutt plaintiff No.1 Mathura Prasad (Died issueless) _ _ A A A A Santdayal Laxminarayan Om Prakash plaintiff No.1 plaintiff No.3 plaintiff No.4
4. It was stated that after the death of Sri Ram Bharose, his three sons, namely, Sri Shubhkaran, Sri Satyanarayan and Sri Madhav Prasad became owners of 1/3rd share each; after the death of Sri Shubhkaran, his son, Sri Rampher became owner of 1/3rd share, who died issueless about nine months before filing of the suit; Sri Rampher had become saint and was residing at Maniram Chhavani, Ayodhya; after the death of Sri Rampher, the appellants/plaintiffs became his legal heirs and came into possession of the property owned by Sri Rampher. It was alleged that after the death of Sri Rampher, defendants got executed a sale deed by producing some lady stated to be widow of Sri Rampher on 02.02.1990, which was registered on 21.03.1990 in respect of 1/3 part of Gata No.124/0-50 and 2-2/3 decimal of Gata No.130-sa/0-50 situated at Village Nurpur, Pargana Pahadpur, Tehsil Karnailganj, Gonda.; the respondents/defendants moved an application for mutation in Tehsil, thus, the appellants/plaintiffs came to know about the sale deed. Hence, the appellants/plaintiffs filed a suit bearing Original Suit No.488 of 1990 for cancellation of the sale deed dated 02.02.1990 which was registered on 21.03.1990.
5. The respondents/defendants contested the suit by filing written statement and denied the allegations made in the plaint. The respondents stated that Sri Rampher was neither saint nor unmarried; it was stated that he was married with Smt. Arti Devi, who is alive; after the death of Sri Rampher, his wife Smt. Arti Devi is the legal heir and became owner of the land owned by Sri Rampher; Smt. Arti Devi, widow of Sri Rampher was bhoomidhar and in possession of the land in question and she was competent to execute the sale deed. It was stated that Smt. Arti Devi executed sale deed dated 02.02.1990 which was registered on 21.03.1990 and after execution of the said sale deed, the defendants are bhoomidhar and in possession of the same. The respondents also stated that after the death of Sri Rampher, the land in question has not been mutated in the name of appellants/plaintiffs in the revenue record, therefore, suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. It was stated that the appellants/plaintiffs are not in possession of the land in question and, therefore, the suit is liable to be dismissed. It was also stated that Sri Madhav Prasad son of Sri Ram Bharose has been shown to be saint whereas he had two daughters, namely, Ramsawari and Vimla Devi, who are alive and are in occupation of property of Sri Madhav Prasad; suit is bad for non-joinder of said two daughters of Sri Madhav Prasad; suit is undervalued and the suit is liable to be dismissed.
6. On pleadings of the parties, following issues were framed by learned trial court:-
"1%& D;k iz'uxr fodz; ds foys[k fnukafdr 2-2-90 ftldk mYys[k okni= dss vUr esa fd;k x;k gS] izLrj&9 ds dFkuks ds vk/kkj ij fujLr gksus ;ksX; gS\ 2%& D;k okn dk ewY;kadu de fd;k x;k gS ,oa iznRr U;k; 'kqYd vi;kZIr gS\ 3%& D;k okn izfrokn i= ds izLrj 19 ds dFkuksa ds vk/kkj ij iks"k.kh; ugha gSA ;fn gka rks izHkko\ 4%& D;k okn /kkjk 331 m0iz0 tehnkjh foukl ,oa Hkwfe fouk'k vf/kfu;e ds izkfo/kku ls ckaf/kr gS tSlk fd izfrokni= ds izLrj 18 esa dgk x;k gS\ 5%& D;k okn esa i{kksa ds vla;kstu dk nks"k gS tSlk fd izfrokn i= izLrj 22 esa dgk x;k gS\ ;fn gka] rks izHkko \ 6%& D;k oknh fdlh mi'ke dks ikus dk vf/kdkjh gS\"
7. The brief facts of Section Appeal No.51 of 2002 are that the plaintiff filed a suit bearing Original Suit No.489 of 1990 for cancellation of sale deed dated 02.02.1990 which was registered on 21.03.1990 in respect of 1/3rd land in Gata No. 68/1-64, 1/3rd land in Gata No.136B/0-55 decimal and 1/3rd part in Gata No.136A/0-58 decimal, situated at Village Nurpur, Pargana Pahadpur, Tehsil Karnailganj, District Gonda executed by Smt. Arti Devi in favour of the defendants. The appellants filed a suit for cancellation of sale deed dated 21.03.1990 on the similar grounds which are mentioned in Original Suit No.488 of 1990. The suit was contested by the respondents/defendants, the defendants denied the allegations made in the plaint and stated that Smt. Arti Devi is the widow of Sri Rampher and she had executed the sale deed as legal heir of Sri Rampher.
8. On pleadings of the parties, following issues were framed by learned trial court:-
"1%& D;k iz'uxr fodz; foys[k fnukafdr 21-3-90 okn i= ds izLrj&9 ds vfHkdFkuksa ds vk/kkj ij fujLr gksus ;ksX; gS\ 2%& D;k okn dk ewY;kadu de fd;k x;k gS ,oa iznRr U;k;'kqYd vi;kZIr gS\ 3%& D;k okn /kkjk 331 m0iz0 tehnkjh foukl ,oa Hkwfe fouk'k vf/kfu;e ds izkfo/kkuksa ls ckaf/kr gS tSlk fd izfrokni= ds izLrj 18 esa dgk x;k gS\ 4%& D;k okn izfrokn i= ds izLrj 19 ds dFkuksa ds vk/kkj ij iks"k.kh; ugha gSA ;fn gka rks izHkko\ 5%&D;k okn esa i{kksa ds vla;kstu dk nks"k gS tSlk fd izfrokni= izLrj 22 esa dgk x;k gS\ ;fn gka] rks izHkko \ 6%&D;k oknh fdlh mi'ke dks ikus dk vf/kdkjh gS\"
9. Upon consideration of oral and documentary evidence, both suits were dismissed by learned 5th Additional Civil Judge (Junior Division), Gonda by common judgment and decree dated 10.11.1995.
10. Aggrieved by the said judgment and decree, the appellants filed Civil Appeals bearing No.90 of 1995 and 89 of 1995 respectively. Both the appeals were dismissed by learned 7th Additional District Judge, Gonda vide common impugned judgment and decree dated 28.11.2001.
11. Feeling aggrieved by the said judgment and decree, the appellants have preferred present two second appeals under Section 100 of the Code of Civil Procedure (hereinafter referred to as "C.P.C.").
12. During pendency of the appeal, appellant No.1, Sri Raj Dutt died and vide order dated 15.04.2009, his legal heirs were substituted. Repondent No.1, Sri Nageshwar died and vide order dated 17.07.2017 his legal heirs were substituted. Respondent No.5, Sri Ram Sevak also died and vide order dated 17.07.2017 his legal heirs were substituted.
13. Vide order dated 13.02.2002, my learned Predecessor admitted the appeals on the following substantial questions of law:-
"1. Whether the lower appellate court is not complying with the mandatory provisions contained in Order 41 Rule 31, C.P.C. and is not formulating the points of decision, the judgment and decree rendered by the lower appellate court stand vitiated?
2. Whether the fact being admitted by the defendants' witnesses that no consideration was paid relating to the impugned sale deed, the impugned sale deed could be genuine?
3. Whether the findings and orders passed by the mutation courts are admissible in civil suit and the courts below could place reliance on the said documents?"
14. Learned counsel for the appellants urged that Sri Rampher was unmarried and Smt. Arti Devi is not the widow of Sri Rampher; trial court has erred in considering Smt. Arti Devi to be widow of Sri Rampher. According to the counsel for the appellants, the appellants/plaintiffs are the legal heirs of the deceased Sri Rampher and, therefore, the sale deed executed by Smt. Arti Devi is liable to be canceled.
15. Learned counsel for the appellants pointed out that the name of Smt. Arti Devi is not shown in the voter list; the entry in parivar register (family register) and revenue record are not admissible.
16. Another submission of learned counsel for the appellants is that no consideration was paid by the respondent/defendants to Smt. Arti Devi and the sale deeds in question are void.
17. Learned counsel for the appellants further submitted that the first appellate court failed to comply with the provisions of Order XLI Rule 31 of the C.P.C. and the impugned judgment and decree are liable to be set aside on this ground alone.
18. On the other hand, learned counsel for the respondents submitted that Sri Rampher was married with Smt. Arti Devi, after his death, Smt. Arti Devi became owner of the land owned by Sri Rampher as legal heir. Smt. Arti Devi has not been impleaded as a defendant. He also submitted that Smt. Arti Devi was competent to execute sale deed in respect of the property owner by Sri Rampher and she had executed both the sale deeds in favour of the respondents after receiving the consideration.
19. Learned counsel for the respondents also submitted that the respondents examined Smt. Arti Devi as DW-1 and she has categorically stated that she is the widow of Sri Rampher, she was cross-examined at length. The appellants did not adduce any evidence to show that Smt. Arti Devi is not widow of Sri Rampher.
20. Learned counsel for the respondents also pointed out that the appellants did not disclose true facts. The appellants had stated that Sri Rampher was saint and died issueless which is not correct. He pointed out that Sri Rampher was married, two children were born out of the wedlock and both of them have died. He also pointed out that the appellants have stated that Sri Madhav Prasad son of Sri Ram Bharose also became saint and died issueless whereas he was survived by two daughters, namely, Ramsawari and Vimla Devi.
21. Learned counsel for the respondents also pointed out that the parivar register of the deceased Rampher was produced and as per family register he was married. He also pointed out that the name of Smt. Arti Devi was mutated in the revenue records.
22. Learned counsel for the respondents further submitted that both the courts below have rightly dismissed the suit of the appellants and there is no ground to interfere.
23. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties. I have also gone through the material available on record.
24. Elaborating this issue/question No.1, learned counsel for the appellants that the first appellate court had decided the appeal without framing points of determination and the same renders the judgment of the first appellate court bad in the eyes of law. To appreciate this issue, it will be appropriate to refer to the provisions of Order XLI Rule 31 of C.P.C., which reads as under:-
"31. Contents, date and signature of judgment.--The judgment of the Appellate Court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
25. The word used by the Legislature under Rule 31 of Order XLI of C.P.C. are to the effect that the order of the appellate court shall be in writing and shall state (a) the point for determination; so the question which is to be considered whether intention of the Legislature while indicating the provisions as provided under Order XLI Rule 31 (a) of C.P.C. is mandatory in nature or not.
26. It is settled rule of law that an appellate court is the final court of facts and, therefore, the first appellate court shall state the points of determination, the decision thereon and the reasons for decision. It is also settled law that mere omission to frame points of determination does not vitiate the judgment if the first appellate court record its reason based on the evidence. The object behind Rule 31 of Order XLI of C.P.C. appears to focus on the contention of the parties and the appellate court in understanding in adjudicating the rival claims.
27. The law relating to powers and duties of first appellate court is well fortified by the legal provisions and judicial pronouncements. The Hon'ble Supreme Court in the case of 'Vinod Kumar vs. Gangadhar', (2015) 1 SCC 391 considered the nature and scope of duty of the first appellate court and it was held as under:-
"12. In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , this Court held as under: (SCC pp. 188-89, para 15) "15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171] , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
13. In H.K.N. Swami v. Irshad Basith [(2005) 10 SCC 243] , this Court stated as under: (SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
14. Again in Jagannath v. Arulappa [(2005) 12 SCC 303] , while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion."
15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171] SCC p. 758, para 5.
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
28. In 'G. Amalorpavam and others vs. R.C. Diocese of Madurai & others', (2006) 3 SCC 224, the Hon'ble Supreme Court after considering the judgment in the case of Santosh Hazari vs. Purushottam Tiwari (2001) 2 SCC 179 held as under:-
"9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC."
29. It will not be out of place to mention here that the Hon'ble Supreme Court in the case of 'Girja Nandini Devi vs. Bijendra Narain Choudhury', AIR 1967 SC 1124, it was noted as under:-
"12. It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decisions of which is under appeal would ordinarily suffice."
30. The Hon'ble Supreme Court in the case of 'G. Saraswathi and another vs. Rathinammal and others', reported in (2018) 3 SCC Page 340 had the occasion to consider the scope and applicability of Order XLI Rule 31 CPC and held as under:-
"10. Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits."
31. Thus, from reading of the aforesaid judgments, it is emerged that the judgment of the first appellate Court must confirm to the mandate of Order XLI Rule 31 CPC as it is a duty cast on the first appellate Court to follow and perform the same. The rules of procedure are made to subserve the ends of justice. A decision of the Court cannot be upset merely on technical or immaterial defects.
32. The spirit of the provision is to ensure that the appellate Court must record reasons for the decisions and is to focus attention of the Court to rival contentions of the parties which arise for determinations and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which the decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal conferred by Section 100 CPC.
33. In the present case, the first appellate court had considered the evidence adduced by both the parties and had given findings to come to the conclusion arrived at. It may be also mentioned that the first appellate court had independentally considered the evidence and had given findings on the issues framed by the trial court and on the basis of the arguments which were advanced before it. The first appellate court had recorded an independent finding that Smt. Arti Devi was widow of Sri Rampher, her name is shown in the revenue records as widow of Sri Rampher, in the parivar register, it is mentioned that Sri Rampher had wife and Smt. Arti Devi being legal heir, she had executed the sale deed in question. Thus, first appellate court has essentially complied with the mandatory provisions of Order XLI Rule 31 of the C.P.C.. The question No.1 is decided accordingly.
34. The second question which has been framed by my learned Predecessor is whether even after admission by the defendants' witnesses that no consideration was paid, the impugned sale deed could be genuine. Learned counsel for the appellants contended that Smt. Arti Devi, while appearing as DW-1 has deposed that consideration amount was not paid and, therefore, the sale deed in question is void.
35. The main question for consideration is as to whether the sale deed would be valid when sale deed recites that the price had been paid but in fact the Court finds that the consideration for sale deed is not actually paid. Section 54 of the Transfer of Property Act, 1882 defines the 'sale' as 'sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Section 54 of the Transfer of Property Act, 1882 reads 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.
Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
36. Section 55(4)(b) of the Transfer of Property Act, 1882 reads as under:-
"(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 amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part [from the date on which possession has been delivered.]"
37. On perusal of the aforesaid provisions, it is clear that the seller is entitled where the ownership of the property has passed to the buyer before payment of the whole purchase money to a charge upon the property in the hands of the buyer.
38. In the case of 'Baijnath Singh vs. Paltu and others', (1908) ILR 30, Allahabad Page 125, Division Bench of this Court observed that if the sale deed recites that the sale consideration was paid but it is found by the court that no sale consideration passed, the non-payment of purchase money does not prevent the passing of the ownership of purchased property from the vendor to the purchaser and the purchaser, notwithstanding such non-payment, can maintain a suit for possession of the property.
39. In another case 'Chandrashankar Manishankar vs. Abhla Mathur and others', AIR (39) 1952 Bombay 56, it was held that it may be that the recital in the document stating payment of the consideration is not true. But that does not invalidate the document. To support a sale it is not necessary that the whole of the price should be paid. The price may be paid or promised wholly or in part. it was also held that if according to the tenor of the document, the consideration was not actually paid, but the document shows that there was an intention to pay, then in that case the document is not rendered invalid on account of the non-payment of the consideration. If, on the other hand, the intention was not to pay any consideration, then the document is of no effect.
40. In another case 'Sukaloo and another vs. Punau', AIR 1961 MP 176, it was held that it is the intention of the parties which has to be looked into to decide whether the sale-deed operated as a transfer of interest from the vendor to the vendee on the date of its execution. If this was the intention, then it does not matter whether the whole of the consideration or part of it remained unpaid. Further, where a registered deed of sale purporting to operate as a conveyance on the face of it exists, the burden of proving that it was not so intended is on the party who asserts this fact.
41. A similar question came up for consideration before the Hon'ble Supreme Court in the case of 'Vidhyadhar vs. Manikrao and another', (1999) 3 SCC 573. The Hon'ble Supreme Court after considering of Section 54 of the Transfer of Property Act observed that actual payment of full price at the time of execution of sale deed is not a sine-qua-non for completion of sale. The real test of sale is intention of the parties. It was held as under:-
"36. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised" indicate that actual payment of the whole of the price at the time of the execution of sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs 100, the sale would be complete.
38. The real test is the intention of the parties. In order to constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in praesenti or in future. The intention is to be gathered from the recital in the sale deed, the conduct of the parties and the evidence on record."
42. In another case 'Kaliaperumal vs. Rajagopal and another', (2009) 4 SCC 193, it was held as follows:-
"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."
43. Thus, what can be culled out from the aforesaid decisions that the mere fact that a sale deed recites the payment of consideration which is not true cannot render the document invalid. To support a sale, it is not necessary that the whole of the price should be paid. The price may be paid or promised wholly or in part. If according to the tenor of the document the consideration was not actually paid, but the document shows that there was an intention to pay, then in that case the document is not rendered invalid on account of the non-payment of the consideration. On the other hand, if the intention was not to pay any consideration or the document is without any consideration, the document is of no effect. There is a distinction between a sale where the consideration is intended to be paid and is not paid, and where the consideration is not intended to be paid at all by both the parties. In the former case, the title passes to the purchaser, and in the later case though the vendor is tricked into going through the form of execution and registration of the document, the sale deed is void as a colourable transaction. It is not necessary that the whole of the price should be paid. The price may be paid or promised to be paid wholly or in part.
44. In case the vendor has executed the sale deed with an intention of transferring the property in question but the consideration has not actually passed to him but he still had intention of transferring the property in question, in such a case the provisions of Section 55 of the Transfer of Property Act, 1882 will be applicable where unpaid amount shall remain a charge on the property. But the title of the property will be transferred to the vendee. The appellants have no right to challenge the sale deed as without consideration.
45. In the present case, the suit for cancellation of sale deed was filed by the appellants, the grounds of cancellation of sale deed have been mentioned in para-9 of the plaint but the appellants have not taken the ground that sale deed was without consideration. Further, the sale deed has been proved in the Suit No.488 of 1990 as Ex.25-ka and in Suit No.489 of 1990 as Ex.26-ka. The sale deeds recite the amount of consideration as Rs.5,500/- and Rs.25,500/- respectively. The sale deeds also recite that the entire consideration was paid by the respondents to the vendor, Smt. Arti Devi. Moreover, the sub-Registrar, at the time of registration of sale deed, also made an endorsement that consideration was paid to the vendor. The party who wants to prove that the recitals are untrue must bear the burden to prove it.
46. Further, Smt. Arti Devi (vendor) was examined by the respondents as DW-1 and she admitted the execution of the sale deed. As discussed above, even if the consideration was not paid, the same is no ground to cancel the sale deed.
47. In any case, the appellants cannot challenge the sale deed on the ground that consideration was not paid. At the best, the seller, Smt. Arti Devi can claim the unpaid amount of consideration from the respondents, if not paid.
48. In support of question No.3, learned counsel for the appellants submitted that Sri Rampher was unamrried and Smt. Arti Devi is not the widow of Sri Rampher and, therefore, she was not competent to execute the sale deed. In this regard, it may mentioned that the respondents have proved parivar register which shows that Sri Rampher had a wife; the respondents have also proved copy of khatoni which recites that Smt. Arti Devi is the widow of Sri Rampher. The respondents have also examined Smt. Arti Devi as DW-1 and she has categorically deposed that she was married to Sri Rampher, out of the said wedlock one son and one daughter were born within four years of the marriage and both died. She was cross-examined at length on behalf of the appellants, but nothing incriminating could be elicited during her cross-examination.
49. As regards parivar register, it is mentioned that exhibit 28C1, parivar register of Village Batora Bakhtawar Singh, Nyay Panchayat Chauri, Nurpur, Tehsil Gonda. The said register is maintained as required by the relevant rules relating to Gram Sabhas. In the parivar register, it is mentioned that Sri Rampher had a wife. The appellants have failed to adduce any evidence that the entries in the parivar register are not correct
50. In the case of 'Vishwasrao Satwarao Naik and others vs. State of Maharashtra', (2018) 6 SCC 580, the Hon'ble Supreme Court considered the admissibility of revenue record and observed as under:-
"6..................................................The appellant led no evidence and has not even placed on record the revenue record prior to the earlier ceiling proceedings or the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidence to rebut this presumption. This, the appellants have miserably failed to do. The appellants have also failed to lead any evidence to show that the revenue entries are wrong."
51. In the instant case, the respondents have proved copy of khatoni for 1397-1402 (26C). The same clearly shows that after the death of Sri Rampher, name of his widow Smt. Arti Devi was mutated in the revenue records. Thus, the onus shifted on the appellants to prove that Smt. Arti Devi was not married to Sri Rampher or that she is not widow of Sri Rampher, but the appellants have failed to adduce any evidence in this regard.
52. Both the courts below have recorded a concurrent finding, on the basis of documentary and oral evidence, that Smt. Arti Devi was the widow of Sri Rampher and she had executed the sale deeds as a widow of Sri Rampher. Learned counsel for the appellants has not been able to point out any illegality or perversity in the findings recorded by both the courts below. Hence, question No.3 is decided accordingly.
53. In view of the aforesaid discussion, both the appeals fail, deserve to be dismissed and the same are hereby dismissed.
54. No order as to costs.
55. Interim application(s), if any, stands disposed of.
56. Lower court record be sent back forthwith.
(Ved Prakash Vaish) Judge Order Date :- 02nd August, 2019 cks/-