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Kishansingh and ors. Vs. Surajprakash and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 68 of 1972
Judge
Reported inAIR1974Raj209
ActsLimitation Act, 1963 - Schedule - Articles 53 and 55
AppellantKishansingh and ors.
RespondentSurajprakash and ors.
Appellant Advocate R.C. Jain, Adv.
Respondent Advocate M.B. Lal Bhargava,; S.N. Bhargava, Bipinchandra and; A.K
DispositionAppeal dismissed
Cases ReferredYella Krishnamma v. Kotipalle Mali
Excerpt:
- - by getting sale deed registered, the vendee took upon himself as the owner of the property to evict the tenants and thereby effectively prevented the plaintiff-vendors from suing for eviction......and minor sudhir kumar sons of late pt. shyamsunder bhargava and their mother mst. kalawati. the sale deed was signed by the three sons of late pt. shyamsunder, namely, surajprakash, r.c. bhargava and santoshkumar only and not by others. by this sale deed the property was sold for rs. 19,000/- out of which rs. 5,000/- were paid as earnest money. the vendee got the sale deed compulsorily registered so far as the three executants were concerned on 16-8-67, but did not pay the remaining sale price amounting to rs. 14,000/-. the three vendor-executants, namely, surajprakash, r.c. bhargava and santoshkumar thereupon instituted a suit out of which this appeal arises on 14-8-70 for the recovery of rs. 14,000/- as principal and rupees 5,000/- by way of interest--total rupees 19,000 against the.....
Judgment:

S.N. Modi, J.

1. This first appeal is directed against the judgment and decree of the Civil Judge, Ajmer, dated 29-3-72.

2. The facts giving rise to this appeal are as follows :

The sale-deed in favour of the appellant Ghisaram in respect of the property described in para No. 1 of the plaint was written on 22-1-66 on behalf of Surajprakash, R.C. Bhargava, Santoshkumar,Rama Bhargava, Laxmankumar and minor Sudhir Kumar sons of late Pt. Shyamsunder Bhargava and their mother Mst. Kalawati. The sale deed was signed by the three sons of late Pt. Shyamsunder, namely, Surajprakash, R.C. Bhargava and Santoshkumar only and not by others. By this sale deed the property was sold for Rs. 19,000/- out of which Rs. 5,000/- were paid as earnest money. The vendee got the sale deed compulsorily registered so far as the three executants were concerned on 16-8-67, but did not pay the remaining sale price amounting to Rs. 14,000/-. The three vendor-executants, namely, Surajprakash, R.C. Bhargava and Santoshkumar thereupon instituted a suit out of which this appeal arises on 14-8-70 for the recovery of Rs. 14,000/- as principal and Rupees 5,000/- by way of interest--total Rupees 19,000 against the vendee Ghisaram. Various pleas were raised in defence. It was alleged that because the plaintiffs neither got the sale deed signed by other vendors nor they got it registered, the suit for the recovery of unpaid purchase money was not maintainable. It was also pleaded that the plaintiffs did not get the sale deed registered and when the defendant applied for compulsory registration, they put obstacles and therefore they disentitled themselves to the claim for the sale price or interest thereof. It was then pleaded that since the defendant had not been given the possession of the property, actual or constructive, and because the plaintiffs were obstructing the defendant through others from getting the possession of the property and were also recovering rent from the tenants occupying the property, the plaintiffs cannot claim interest on the unpaid sale price. It was further pleaded that the plaintiff Suraj Prakash executed the sale deed in the capacity of Manager, Joint Hindu Family and as guardian of the minor Sudhirkumar, but because he had not filed the suit in that capacity, the suit was not maintainable. It was also pleaded that the suit was barred by time. None of the pleas raised by the defendant-vendee found favour with the learned Civil Judge except that the plaintiffs were not entitled to interest as they had realised rent from the tenants. He accordingly decreed the suit for Rupees 14,000/- against the defendant-vendee and kept a charge on the vended property till the amount of Rs. 14,000/- was paid to the plaintiffs. Aggrieved by the said decree, the defendant Ghisaram has preferred this appeal. During the pendency of the appeal, Ghisaram died. He is now represented by his legal representatives.

3. The general law is that title passes to the vendee on the executionand registration of the sale deed by the vendor though the purchase-money may remain wholly or partly unpaid except where there is an agreement that the sale should take place only if the consideration is first paid. Admittedly, there is no such agreement in the present case that the title to the vended property will not pass until the entire consideration money was paid. The sale was therefore complete as soon as the sale deed was registered irrespective of the fact whether the sale price was paid or not. Again, if the price was not paid, the plaintiffs could not on that account set aside the conveyance. Their only remedy was to sue for the recovery of the unpaid sale-price. The defendant-vendee in his written statement raised certain pleas, which according to him, disentitled the plaintiffs to claim unpaid purchase price but Mr. R.C. Jain, the learned Advocate for the defendant-appellants conceded that the sale was complete and title to the vended property passed to the vendor on the execution and registration of the sale deed. He also does not challenge the liability of the appellants to pay the unpaid price to the plaintiffs. His main contention is that since the plaintiffs have not delivered possession of the vended property to the vendee and are realising rent from the tenants, the court below should not have passed an unconditional decree for the payment of the unpaid sale-price but should have passed a decree subject to the delivery of possession. In support of his argument reliance is placed on Dhurisah v. Kishunprasad Sah, AIR 1965 Pat 29, Mt. Prandei v. Satdeo, AIR 1929 All 85 (2), U Ti v. Firm M. P. M.S. Chettiar, AIR 1933 Rang 401 and Basalingava Revanshiddappa v. Chinnava, AIR 1932 Bom 247. The view expressed in the above decisions is that in a suit for possession of the vended property by the vendee who has not paid purchase-money wholly or partly, the court can pass a decree for possession conditional on the payment of purchase-money to the defendant-vendor. A contrary view has been expressed in Yella Krishnamma v. Kotipalle Mali, AIR 1920 Mad 164 wherein the view taken was that a vendee who has not paid the purchase-money can claim possession of the vended property and the court cannot pass a decree for possession conditional on payment of price to the defendant-vendor. The rule of law laid down by the Patna, Allahabad. Rangoon and Bombay High Courts in the above cited cases is based on equitable consideration, and, in my opinion, there is no reason why this principle of equity should not be acted upon in suitable cases.

4. The question, however, arises whether the said principle of equity canbe given effect to in the present case. It is common ground between the parties that the vended property was in occupation of the tenants at the time of sale and is still in their possession. It is further clear from the sale deed that the vendee knew at the time of the sale that the vended property was in occupation of the tenants and he would not be getting vacant possession of the vended property. The relevant clause in the sale deed runs as under :

'That the property described below excepting one shop is tenanted by the Proprietors of Nawal Kishore Press, viz. Rajaram and Tejkumar and their manager Deendayal Mathur is residing in the said property, that the property noted below together with the press building and an open piece of land except one shop was in the tenancy of the proprietors of Nawalkishore Press for a sum of Rs. 150/- (one hundred and fifty per month), that the rent of the premises now sold is apportioned at Rs. 65/- p.m. The proprietors of Nawalkishore Press have been informed to attorn to the purchasers and to pay rent of this portion at Rs. 65/- per month to the purchaser from the date of the purchase.'

The defendant Ghisaram as D.W. 2 admitted having filed the suit for arrears of rent against one of the tenants, D.W. 1 Deendayal, a tenant in occupation of the vended property as manager of the Nawal Kishore Press, has deposed that the defendant-vendee has instituted the suit against him for eviction. Under Section 55(1)(f) of the Transfer of Property Act, a seller is bound to give on being so required to the buyer or his nominee such possession of the property as the nature admits. 'Possession' here does not necessarily mean personal occupation but might include a landlord's possession if the property sold is in the occupation ofthe tenant to the knowledge of the buyer. The contract of sale might however provide for delivery of vacant possession of the property even though it is in occupation of a tenant to the knowledge of the buyer but no such contract exists in the present case. The sale deed Ex. 3 provides only for delivery of landlord's possession to the vendee. After the execution and registration of the sale deed it was not possible for the plaintiff-vendors to evict any of the tenants occupying the vended property by resort to a suit. The title to the property having passed to the buyer he alone could have taken action thereon for the eviction of the tenant and such action was in fact taken by the buyer as is evident from his own statement as D.W. 2. By getting the sale deed registered, the buyer had acquired the right to evict the tenants and had put it out of the power of the vendors to evict them. In the circumstances, no question of delivery of possession, actual or constructive, by the vendors arises and it would be inappropriate to pass a decree for payment of purchase money conditional on the delivery of possession as suggested by the learned counsel for the appellants. By getting sale deed registered, the vendee took upon himself as the owner of the property to evict the tenants and thereby effectively prevented the plaintiff-vendors from suing for eviction. In my opinion, therefore, no condition as to the delivery of possession can be attached to the decree for the recovery of unpaid sale price.

5. The next contention of the learned counsel for the appellants is that the suit for personal payment of the unpaid purchase money is barred by time under Article 53 of the Limitation Act, 1963, though the suit to enforce vendor's charge for unpaid price is within time. Article 53 runs as under :--

'Article 53-

By a vendor of immovable property for personal payment of unpaid purchase-money.Three years.The time fixed for completing the sale, or (where the title is accepted after the time fixed for completion) the date of the acceptance.'

This Article is not applicable to the present case as no time was fixed for completing the sale. The relevant clause in the sale-deed (Ex. 3) for the payment of the unpaid purchase money runs as under:--

'That the consideration of this sale-deed is received in this manner that a sum of Rs. 5,000/- (five thousand only) have been received previously and the balance amount of Rs. 14,000/- (fourteen thousand) have been received in the presence of the Sub-Registrar, Aimer, at the time of the execution of the deed and nothing now remains due.'

The above clause in the sale-deed shows payment of Rs. 14.000/- before the Sub-Registrar. In other words, the intention of the parties was to pay Rs. 14,000 to the vendors at the time of the registration before the Sub-Registrar. Admittedly, the sum of Rs. 14,000 was not paid at the time of the registration of the sale-deed or at any time prior to that. The sale-deed was compulsorily registered on 16-9-67 by the Sub-Registrar. The vendors were therefore entitled to claim, unpaid purchase money not earlier than 16-9-67. The Article which is applicable to such a case is, in my opinion, Article 55of the Limitation Act, 1963. The breach took place on 16-9-67 and the suit instituted on 14-8-70 is within time even for personal decree.

6. No other point has been pressed before me.

7. The appeal fails and it is dismissed with costs.


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