Patna High Court
Tribeni Pd. Rastogi vs Basudeo Pd. Rastogi on 16 April, 1980
Equivalent citations: AIR1980PAT220, AIR 1980 PATNA 220, 1980 BLJR 529
JUDGMENT
1. This is a plaintiff's appeal, who instituted the suit for delivery of possession over a house which he purchased under a sale deed executed in his favour by the defendant on 1-2-1965 for a total consideration of Rupees 10,000/-. According to the plaintiff's case, he had already paid to the defendant a sum of Rs. 4,400/- and indicated his readiness to deposit the balanca amount of consideration, viz., Rs. 5,000/-, in favour of the defendant, which the defendant was avoiding to receive in spite of his repeated efforts.
2. According to the plaintiffs case, the defendant was in urgent need of a certain amount of cash money and accordingly he entered into an oral agreement with the plaintiff for the sale of the suit house for the consideration mentioned above. A sum of Rs. 400/-
was advanced by the plaintiff to the (defendant on 31-1-1965 for purchasing the necessary stamps for drawing up the sale deed The sale deed was duly executed by the defendant on 1-2-1965 and was presented for registration on the same day. A sum of Rs. 1,000/- was paid by the plaintiff to the defendant in presence of the Sub-Registrar, Jhabua, towards the consideration which fact is evidenced by the endorsement of the Sub-Registrar. According to the further case of plaintiff, the defendant expressed his necessity for a further sum of Rupees 3,000/- on 8-2-1965. The plaintiff, however is said to have offered the defendant the entire balance of the consideration, viz. Rs. 9,000/- and to have the exchange of equivalents but the defendant pretended to be in the need of only a sum of Rs. 3,000/- and refused to accept the entire balance of the consideration on the pretext that he would require the balance amount afterwards at the time of the marriage of a daughter in the family and if he received the amount at that moment, it might get spent otherwise. In this way, the plaintiff is stated to have paid a sum of Rs. 4400/- to the defendant. The defendant is said to have written a post card (Exhibit I) to the plaintiff on 20-2-1965 asking him to come to Sasaram on 6-3-1965, together with the necessary receipt for the exchange of equivalents with the sum of Rs. 5600/-, but when the plaintiff went to Sasaram he did not meet the defendant. The defendant, according to him, avoided to receive the balance of the consideration on some pretext or the other and, therefore, he instituted the suit in question on 5-11-1965.
3. In his written statement, the defendant denied the transaction altogether. According to his case, his son Manik Chand was a vagabond and in order to save the property from his reckless behaviour, under the advice of his friends and keeping the plaintiff in confidence, the sale deed in question was executed which is absolutely farzi in nature. He also absolutely denied the receipt of any consideration. With respect to the payment of the sum of Rupees 1000/- before the Registrar, he pleaded that it was his money which was handed over to the plaintiff.
4. Two of the issues framed by the trial court were : Is the suit bad according to Section 34 of the Specific Relief Act? and whether the sale deed in question was genuine or farzi and inoperative?
The relevant findings recorded by the trial court are as follows :--
(a) The defendant had the necessity of money for the purpose of perfoming the marriage of his grand-daughter. He had accordingly negotiated for the sale of the house with the plaintiff for a consideration of Rs. 10,000/-. The other necessities alleged by the plaintiff for the purpose of transaction in question were not satisfactorily established.
(b) The defendant has failed to prove the sale deed (Exhibit I) to be farzi or a sham transaction.
(c) The evidence with respect to the payment of the sum of Rs. 400/- and Rupees 3000/- was not satisfactory but the evidence with respect to the payment oi the sum of Rs. 1000/- before registration was quite satisfactory.
In spite of the fact that the trial court held the sale deed to be genuine, it refused to grant any relief to the plaintiff on the ground that the sale deed itself was void according to Section 23 of the Indian Contract Act as the purpose for its execution was the marriage of the minor children which was prohibited under the Child Marriage Restraint Act although this defence was neither set up in the written statement nor any issue was raised by the defendant in this regard.
5. We shall first take up the question as to whether the transaction of sale can be said to be void on the ground as held by the trial court. Section 23 of the Indian Contract Act lays down that where the consideration or object of an agreement is unlawful, it would be void. The section enumerates six cases in which the consideration of the object may be said to be unlawful, namely, (1) where it is forbidden by law; or (2) is of such a nature that, if permitted, it would defeat the provisions of any law; or (3) is fraudulent; or (4) involves or implies injury to the person or property of another, or (5) the court regards it as immoral, or (6) opposed the public policy.
The trial court has placed reliance upon three decisions of the Madras, Allahabad and this High Court which we shall presently discuss hereinafter. Two of the cases were of loans by the plaintiffs for celebration of marriage of minor children, and the third one, namely, that of Patna, was for recovery of dues from a cloth dealer who was doing business in violation of a Licensing order. Obviously, in all the three cases the consideration for the loan was unlawful and they were not cases of sales of any property in which the consideration for the seller is the money and for the purchaser the property. Such a case is squarely covered by illu-stration (a) to Section 23 itself which is as follows :--
"(a) A agrees to sell his house to B for Rs. 10,000/-. Here B's promise to pay the sum of Rs. 10,000/- is the consideration for A's promise to sell the house, and A's promise to sell the house is the consideration for B's promise to pay the 10,000 rupees. These are lawful considerations."
In this connection we may also refer to Section 54 of the T. P. Act which entitles the owner of a tangible property to transfer his ownership in the same in exchange for a price paid or promised or part-paid or part-promised. Consideration in such a case is, therefore, the price. The word "object" in Sec. 23 of the Contract Act has not been used in the same sense as "consideration" but means purpose or desire. Thus, a consideration for an agreement may be the receipt of a certain sum of money which is perfectly legal, but this object may be to defeat the provisions of any law which may be unlawful. In these circumstances, it is difficult to appreciate as to how a transaction of sale out and out for a valid consideration can be said to be hit by the mischief of Section 23 of the Contract Act.
However, in this connection it may also be mentioned that the necessities mentioned in the sale deed in question are even not the marriage of minor children; rather the plaintiffs were unaware of their age had contested the age of the child which was married in the defendants' family. The necessities mentioned in the sale deed are as follows :--
"Marriage of nati and natini and repair of the house and carrying on agricultural operations and some other necessary expenses including payment of certain oral loans of the creditors etc."
6. Now, we may notice the three cases relied upon by the trial court and which were also relied upon before us by the learned counsel for the respondents. They are : AIR 1952 Mad 579 (Chandra Sreenivasa Rao v. Rama Mohana Rao); AIR 1972 All 357 (Paras-ram v. Smt. Naraini Devi); and 1959 BLJR 549 (Sewsagar Avasty v. Satya-narain Sah), In the first case before the Madras High Court a sum of Rs. 5,000/-was advanced by the plaintiff to the second defendant for the purpose ot celebrating the marriage of her son, the first defendant, on the basis of a promissory note. The first defendant himself was described in the promissory note as a minor. The plaintiff was the brother-in-law of the first defendant. Subba Rao, J. (as he then was), in these circumstances, held that it could not be disputed that the plaintiff had knowledge of the fact that the money was borrowed for celebrating the marriage in contravention of the provisions of the Child Marriage Restraint Act, which was a prohibited act. The learned Judge was constrained to observe :
"No attempt has been made either in the court below or before me to contend that the plaintiff had no knowledge of the state of facts".
The attending facts of the above decision as stated would have hardly any application to the present case. In the Patna case (1959 BLJR 549), the defendant was dealing in cloth business without any valid licence as required under the Licensing Order, 1944. The plaintiff had instituted the suit for recovery of a certain sum of money as the price of cloth supplied to the defendant for sale in his shop. A plea was set up by the defendant that the claim of the plaintiff could not be decreed as it was hit by Section 60 of the Indian Contract Act. In the Allahabad case (AIR 1972 All 357), however the major members of a joint Hindu family had taken loan for the marriage of a minor member and, when the suit was instituted, a plea under Section 23 of the Contract Act was raised on the ground that the loan was hit by virtue of the Child Marriage Restraint Act. The learned single Judge on a consideration of the various authorities of different High Courts held that the loan in question, although incurred by the major members of the family for the marriage of a minor member could not be said to be not for legal necessity or not binding on the joint family property inasmuch as the marriage of a a minor Hindu male with a minor Hindu girl was not invalidated or rendered illegal by the force of the Child Marriage Restraint Act, 1929. The marriage would remain a valid marriage binding under the Hindu Law if otherwise performed under any recognised form of Hindu Law. Proceeding further the learned Judge held :--
"It would be seen that the Child Marriage Restraint Act only restraints a marriage of minors and that is its objective, but does not prohibit the marriage rendering it illegal or invalid. It punishes those persons who arrange that marriage and actively participate in celebrating it."
Apart from the fact that the consideration for the transaction in question was the sale of the house, and it is fully covered by illustration (a) to Section 23 of the Contract Act, even assuming for the sake of argument that the object of the transaction was the marriage of a minor member in the family, that would not render the transaction of sale unenforceable as the transaction is fully saved under the definition of "sale" under Section 54 of the T. P. Act, inasmuch as the consideration for the defendant to sell the house was the promise by the plaintiff to pay a sum of Rupees 10,000/- to him and the object of the plaintiff to make the promise for paying the consideration was to get the house of the defendant. Even the marriage ol his grand children was not the sole purpose for which money was required by the defendant, the purpose and necessities were several. As was also observed by Subba Rao, J. in the above Madras case, no evidence has been led or at least has been pointed out to us by learned counsel for the defendant that the plaintiff was in any way aware at the time he entered into the negotiation for the sale about the age of the children who were sought to be married. The utilisation of money would be a relevant fact for the buyer only in those cases where the vendor appears to be a limited owner of the property and the transaction is impeached on the ground of want of legal necessities or the like, which is not the situation in the present case. We, therefore, in disagreement with the trial court, must hold that the sale deed (Exhibit 1) cannot be said to be in any way invalidated on the account of the provisions of a Section 23 of the Indian Contract Act.
7. We have already indicated two of the issues that were framed by the trial court, one of which was the bar of Section 34 of the Specific Relief Act. This issue was not pressed in the trial court but when the appeal was taken up for hearing before another Bench and was heard for some days, it appears, this question was pressed before the learned Judge which implied the plaintiff to make an application for amendment of the plaint. The application was filed on 19-1-1979 for claiming a further relief of declaration that the plaintiff had acquired a valid title over the suit house on the basis of the sale deed in question. Shri Guneshwar Prasad, on the basis of the recital made in the sale deed (Exhibit 1), argued that no title was intended to pass in favour of the plaintiff with respect to the suit house unless the entire consideration was paid. This contention was not contested by Shri Gorakh Nath Singh, learned counsel for the appellant. We have seen that according to the findings of the trial court, undis-putedly, the plaintiff had not paid the entire consideration. In the view of the matter, in our opinion, unless the entire consideration was paid, the plaintiff could not claim the declaration which he is seeking by the petition for amendment of the plaint since the payment of the entire consideration was a condition precedent or was a sine qua non for passing of the title in his favour. His case, however, has been that he had offered the balance of consideration several times but the defendant refused to accept it. Shri Guneshwar Prasad however, contended that in this circumstance the only remedy of the plaintiff was to claim refund of the consideration and no other right flowed in his favour. It is well known that so far as the vendor is concerned he has got a right to sue the vendee for the unpaid amount of consideration.
The question arises as to whether in a situation where although the vendee is ready and willing to pay the consideration to the vendor who for some oblique intention declines to accept it, is the vendee remedyless in acquiring the fruits of the transaction of sale. The plaintiff very rightly did not seek the declaration of title or recovery of possession over the suit house without indicating his willingness and offering to pay the entire balance of the consideration, according to his case. In other words, he went to the court with a case that he had always been ready to perform his part of the contract which was still unfulfilled according to the stipulations in the sale deed and, therefore, he was entitled to the relief through the insistence of the court. Shri Prasad, however, on the other hand, contended that according to the stipulations in the sale deed the entire consideration money was to be paid before its execution. The recital being "das hazar rupaiya ba dast Tribeni Prasad Rastogi.....mokir alah mazkoor ko kebala bai la-kalami kis vo becha vo kul zar summon askad kabaladar se vosul pakar kabaladar ko aj tarikh im-roj a kabiz dakhil malik mustakil sai mobaiya ka gardana....."
On this recital, Shri Prasad contended that there was no occasion for the plaintiff to pay the consideration or any part thereof subsequent to the execution of the sale deed as the vendor intended to have received the entire consideration of Rs. 10,000/- before the execution of the sale deed.
It is difficult to accept this argument of Shri Prasad inasmuch as this is this form of recital in the sale deeds which is very much prevalent in this part of the country and which have fallen for consideration times without number by this court and have been interpreted as simply to mean that the vendor intended to pass on his title in favour of the vendee only on receipt of the entire consideration. In this connection reference may be made to the decision reported in AIR 1952 Pat 263 (Panchoo Sahu v. Janki Mandar). No authority was cited by Shri Prasad to show that the right of a vendee to offer the consideration would be extinguished if he failed to make the payment at the time of execution of the sale deed, but was ready and willing to pay the same immediately thereafter. We would interpret this recital to mean that the plaintiff agreed to purchase the house on payment of the entire consideration and until that was done the title was not transferred in his favour. The consideration could be paid by him even later within a reasonable time. With respect to the remedy to a buyer in such a case, reference may be made to the observations made by this court in para 11 of the judgment just noticed above.
The argument put forward by the learned counsel for the appellant was that the plaintiff having paid the bulk of the consideration of the sale deed, the defendant ought to have performed his part of the contract. The court refused to grant any relief as the suit as framed was not for specific performance of the contract and the plaintiff had never suggested in his plaint that he was ready to pay the balance of the consideration on the contrary, his case was that he had paid the entire consideration and came into possession of the entire vended property. That suit was instituted more than three years after the registration of the sale deed in question. The above observation does provide a clue to find an answer to the question posed as to whether the only remedy of the vendee in such a situation would be to sue for the refund of the consideration or he could also sue for recovery of the cherished property as well, which he intended to purchase. The present suit, in our view, is in substance a suit of the nature as indicated in the above decision of this court and is maintainable. We could accordingly hold that in such a case the vendee can sue the vendor for possession on payment of the consideration money. But apart from the above view, where a vendee offers the consideration to the vendor payable to him with rspect to a transaction, then his obligation to perform his part of the contract comes to an end and the refusal of the vendor to accept the offer would not stand in his way to acquire the title of the vendor where title is to pass on payment of the consideration and, therefore, he can recover possession of the property from him. Reference in this connection may be made to a Bench decision reported in AIR 1973 Pat 386 (Shiva Narayan v. Baidya Nath Prasad).
8. Be that as it may, for the view we have taken, we do not feel that there is any necessity for the plaintiff to amend the plaint and the suit as instituted is maintainable.
9. The question now arises as to what is the balance consideration which still remains unpaid. The finding of the trial court in this regard, as already indicated above, is that it is Rs. 1000/- only, Shri Gorakh Nath Singh did not contest the finding of the trial court that the evidence with respect to payment of the sum of Rs. 400/- and Rs. 3000/- was not satisfactory. It must, therefore, be held that the plaintiff is bound to pay a sum of Rs. 9,000/- more to the defendant as consideration before he can succeed in this suit for getting the declaration of title on the basis of the sale deed.
10. Before parting with the case, however, we may also refer to the argu-
merit advanced by Shri Guneshwar Pra-sad with respect to the finding of Benami nature of the document. He has signally failed to point out any evidence with respect to any of the ingredients which are relevant for holding the transaction to be farzi or benami. He, however, contended that the very fact that no consideration was received by the vendor before the execution of the sale deed should itself be held to be sufficient for holding the transaction to be benami inasmuch as had the vendor entered into a genuine transaction then he would not have made that recital before receiving the consideration or for that matter would not have executed the sals deed without receiving the consideration either at the time of its execution or before the Registrar at the time of admitting the execution. We do not find any force in this 'contention inasmuch as the test for holding a transaction to be benami is well established and no transaction can be held to be benami or farzi on this ground. The onus to prove the transaction to be benami or farzi was on the defendant and the trial court has construed the evidence adduced by the defendant on this issue and has rightly come to the conclusion that the defendant has failed to discharge his burden. Shri Guneshwar Prasad had also argued at length that the finding with respect to the payment of Rs. 1000/- before the Registrar should not be accepted. He referred to the evidence of the plaintiff who stated that he had started with a sum of Rs. 1000/- only for the registration office. The plaintiff had stated that this was the amount that he had paid before the Registrar to the defendant. But Shri Guneshwar Prasad argued that the witness had admitted that he had no other amount with him to spend over the registration cost and, therefore, the plaintiff could not be possessed with the sum of Rs. 1000/- which he is said to have paid to the defendant. We do not find any force in this contention inasmuch as the evidence is that the plaintiff had taken Rs. 1000/- from his house but it did not mean that he had no other money with him from before. Be that as it may, such statements made in the strain of cross-examination cannot be appraised in such a strict manner in which learned counsel intends.
11. We would accordingly hold that this appeal must succeed. The judgment and decree of the court below are ac-
cordingly set aside and the plaintiff is directed to deposit a sum of Rs. 9,000/-within a period of two months in favour of the defendant in the trial court. On the amount being deposited, the plaintiff will be entitled to withdraw the sale deed (Exhibit 1) in question and the right, title and interest of the defendant in the property will stand transferred to him. The plaintiff will be also entitled to get possession of the land in question. In the circumstances of the case, however, there will be no order as to costs.