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Chandrashankar Manishankar Vs. Abhla Mathur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 297 of 1948
Judge
Reported inAIR1952Bom56; (1951)53BOMLR861
ActsTransfer of Property Act, 1882 - Sections 54; Code of Civil Procedure (CPC), 1908 - Order 20, Rule 12
AppellantChandrashankar Manishankar
RespondentAbhla Mathur and ors.
Appellant AdvocateS.M. Shah and ;V.T. Gambhirwala, Advs.
Respondent AdvocateN.C. Shah, ;M.B. Mehta and ;V.H. Kamat, Advs.
Excerpt:
sale deed - non-payment of consideration - whether sale-deed void.; if according to the tenor of a sale-deed the consideration is not actually paid, but the sale-deed shows that there was an intention to pay, then in that case the sale-deed 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.; basalingava v. chinnava (1931) 34 born. l.r. 427, followed.; to support a sale it is not necessary that the whole of the price should be paid at the time of sale. the price may be paid or promised wholly or in part.; lal achal ram v. raja kazim husain khan (1905) l.r. 32 la. 113, followed. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of..........document reoites that the vendor had received on the date of the document the sum of rs. 699. the vendor jinia states in the sale deed that be had become the legal heir of his brother chhatia. the document after describing the property refers to a mortgage executed by chhatia while alive is respect of two of his fields, via. survey no. 267 and survey no. 258. the document recites that 'the vendor shall redeem the mortgage. but if he does not redeem it, the purchaser is entitled to redeem the property.' the document also recites that after the death of jibai, chhatia'a nephewmathur had taken possession of the property. mr. n.c. shah for defendants no. 1 and 2 contends that the plaintiff, not having paid the amount of the consideration, cannot file this suit upon the basis of this.....
Judgment:

FACTS

[1] The property in suit which consisted of (1) a house survey No. 89, and a wada, (2) survey No. 267, (8) survey No. 268, (4) survey No. 355 and (5) survey No. 3S1 originally belonged to one Chhatia who was one of the four or five sons of Butal. One Jinia was the full brother of Chhatia, while Harji and Devla were his step-brothers. In the year 1921 Chhatia died childless, leaving him surviving a widow by name Jibai. Prior to his death, Chhatia executed a writing called a will on 8th September 1931. Under this will Chhatia purported to give survey No. 89 and survey No. 335 to his wife Jibai for maintenance and he gave survey Nos. 267, 268 and 361 to Mathur who was his nephew, being the son of Harji, his stepbrother. In about the middle of 1932 Bai Jibai contracted re-marriage called natra marriage and she died in 1935.

[2] On 10th April 1932, Jibai sold to Mathur, the nephew of Ohhatia, survey No. 39 and survey No. 855, the object of the sale being to pay offthe debts mentioned in the sale deeds. Then in the year 1925 Mathur mortgaged four lands and the three lands which he had got tinder Chhatia's will to one Pitambar in order to secure Rs. 2,999, On 13th May 1926, Mathur mortgaged survey No. E68 and survey No. 89 to one Girdharlal in order to secure Rs. 499. On 1st April 1930, Mathur executed in favour of one Maganlal, the son of Pitambar, a sale-deed conveying to Maganlal survey No. 268 and survey No. 861, and, lastly, on 8th December 1937, Mathur executed a sale deed in favour of Ratanlal, the son of Girdharlal, the house, survey No. 39, and the wada. Mathur died in or about the year 1939.

[3] Jinia, claiming to be the heir of Chhatia, sold the suit property to Chandrashankar (plaintiff) by a sale-deed dated 24th October 1943, for Rs. 699, The plaintiff filed the present suit on. 1st November 1943, for possession of the said property. To this suit he impleaded as defendants, the sons of Mathur (defendants 1 and 2); Maganlal (defendant 3) who was a purchaser under the sale-deed of the year 1930, Ratanlal (defendant 4) who was a purchaser under the sale deed of the year 1937 and two other persons as defendants 5 and 6 who claimed under an oral sale from Mathur survey No. 267.

[4] The plaintiff's claim was opposed by the defendants. The trial Judge raised as many as eighteen issues upon the pleadings of the parties, and upon the oral and documentary evidence adduced before him dismissed the plaintiff's suit.The plaintiff appealed to the High Court.

Dixit, J.

[1] [His Lordship after setting out the facts proceeded:] In dealing with the first point the lower Court thought that the plaintiff's suit was champertous and with all respect to the learned Judge, I am not clear as to what this issue means, I can understand an agreement which is alleged to be champertous, and if by the issue it is meant that the plaintiff has merely bought a litigation, the point is an understandable one. However that may be, the plaintiff has to prove his title which means that the plaintiff must prove his vendor's title, That again means that Jinia is an heir to Chhatia'a property. The sale deed executed in his favour is produced as Exh. 34. The consideration mentioned in the sale deed is a sum of Rs. 699 and the document reoites that the vendor had received on the date of the document the sum of RS. 699. The vendor Jinia states in the sale deed that be had become the legal heir of his brother Chhatia. The document after describing the property refers to a mortgage executed by Chhatia while alive is respect of two of his fields, via. survey No. 267 and survey No. 258. The document recites that 'the vendor shall redeem the mortgage. But if he does not redeem it, the purchaser is entitled to redeem the property.' The document also recites that after the death of Jibai, Chhatia'a nephewMathur had taken possession of the property. Mr. N.C. Shah for defendants No. 1 and 2 contends that the plaintiff, not having paid the amount of the consideration, cannot file this suit upon the basis of this document. The contention is that the document is void and no suit can be founded upon such a document. Now, the recital as regards the payment of consideration as recited in the sale-deed is untrue. On the date of the document the sum of Rs. 699 was not in fact paid to Jinia. This will be clear by reference to a receipt which is Exh. 87. That receipt was executed by Jinia himself in favour of the plaintiff and it recites that a registered sale-deed was executed on 24th October 1943, for Rs. 699 and that the purchaser was to pay the vendor the amount of the consideration on getting possession. A reference to the receipt shows that a sum of Rs. 35 was paid to Jinia on the date of the document, viz. 26th November 1944, and for the remaining amount of Rs. 674 which the vendor was to receive, the purchaser was to give the vendor survey No. 365 which was one of the properties sold by Jinia to the plaintiff in October 1043. This receipt, Exh. 87, is a counterpart of Exh. 63, Exh. 58 having been executed by the plaintiff in favour of Jinia. The learned Judge upon a consideration of the evidence in the case came to the conclusion that in point of fact no consideration was received by the vendor Jinia, and holding as he did in that sense, he came to the conclusion that the document was void, that the plaintiff had given false evidence and that it must result in non-suiting the plaintiff. There is no doubt upon the evidence in the ease that on the date of the document, viz. 24th October 1948, the plaintiff did not give Jinia the sum of Bs. 699 as recited in the document, The receipt, Exh; 87, shows that Jinia received a sum of Rs. 25 on 26th November 1944. This was long after the suit was filed. In fact that receipt was passed after the issues were settled in the suit. It is to be noted that the vendor Jinia has not himself raised the dispute an regards the alleged invalid nature of the transaction. But it is contended on behalf of defendants 1 and 2 that the document in the absence of payment of consideration is of no effect. A reference to the sale-deed shows that the consideration was partly in the payment of Rs. 699 and partly in the agreement by the purchaser to pay off the mortgage debt incurred by Chhatia in the year 1918. In a case like this the question is one of intention. 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. This principle is laid down in a case reported in Basalingava v.Chinnava, 34 Bom. L.R. 437. A part of the head-note in that case runs as follows :

'There is a distinction between a sale where the consideration is intended to be paid and is not paid, and where the consideration 13 not intended by both parties to be paid at all. In the former case the title passes to the purchaser, and in the latter ease 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 seems to us, therefore, that in this case it cannot be said that there was no intention to pay the amount of the consideration, and in view of this circumstance it seems to us that the title had passed to the purchaser. 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. This view is also supported by the decision of their Lordships of the Privy Council in Lal Achal Ram v. Raja Kazim Husain Khan, 33 Ind. App. 113. In one opinion, therefore, the lower Court was wrong in holding that the plaintiff had no right to bring this suit on the strength of the document executed in his favour on 24th October 1943.

[The rest of the judgment is not material to the report.]

[2] The result of the above discussion is that the plaintiff has a right to sue upon the basis of the document executed in his favour by Jinia who is the reversionary heir of Chhatia, that the plaintiff's suit is not barred by limitation and that the will, Exh. 48, dated 8th September 1921, does not stand in the way of the plaintiffs vendor Jinia.

[3] Then there remains the question as regards defendants 3, 4, 5 and 6. They are alienees from Mathur. But since we take the view that the plaintiff's vendor had no cause of action until 193B when Bai Jibai died, the possession of the alienees cannot affect the right of Jinia and the defendants, therefore, would have no right to the property. Defendants 5 and 6 claim survey No. 267 under an oral sale from Mathur, but if Mathur had no title, they cannot get any title.

[4] The result of the above discussion is that this appeal will be partially allowed and the decree of the lower Court modified. There will be a decree in favour of the plaintiff. The plaintiff shall recover from the defendants possession of survey Nos. 267, 268 and 361. There will be an inquiry into mesne profits, past and future, as claimed in the plaint, under Order 20, Rule 12, Civil P.C.

[5] As the plaintiff succeeds in part and fails in part, the plaintiff is not entitled to the full costs of this appeal as well as of the suit. We accordingly direct that the plaintiff shall recover from the defendants one-half of the costs in thetrial Court as well as in this Court. The defendants shall bear their own costs.

[6] Appeal partly allowed.


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