Dismissed

Smt Sumitra Devi v. Mr Mahendra Mistry and Anr.

Jharkhand HC23 Jul 2019SA/255/2013

Case brief

AI extract

What is this about?

The High Court dismissed a Title Appeal challenging the confirmation of a lower court decree. The court held that a sale deed validly executed divests the seller, preventing unilateral cancellation and preventing subsequent sale deeds by the seller. Sumitra Devi failed to establish title.

What did the court decide?

The appeal was dismissed

Smt Sumitra Devi Vs Mr Mahendra Mistry and Anr. — Partition | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 255 of 2013

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Smt. Sumitra Devi wife of Sri Ashok Mistry ............... Appellant. -Versus-

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1. Mr. Mahendra Mistry 2. Smt. Sumitra Devi wife of Mr. Mahendra Mistry ….. …. Respondents.

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CORAM: HON'BLE MR JUSTICE ANANDA SEN.

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For the Appellant : M/s Naresh Prasad Singh and Arvind Kr. Singh, Advocates. For Respondents :

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07/23.07.2019: Heard the learned counsel for the appellant and perused the record. 2. The plaintiff is the appellant before this Court who lost in both the courts below.

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This appeal under Section 100 of the Code of Civil Procedure, 1908, has been filed challenging the judgment and decree dated 6.9.2013 passed by the learned District Judge-IV, Palamau at Daltonganj in Title (Partition) Appeal No. 42/2011, by which, the appeal filed by the appellant has been dismissed and the judgment dated 25.8.2011 and the decree dated 14.9.2011 passed by the learned Munsif, Palamau at Daltonganj in Title Suit No. 110/1996 was confirmed.

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The plaintiff filed the suit for declaration that she is the title holder of the suit land purchased by registered sale deed bearing Number 4023 dated 27.4.1993 (wrongly typed as 12.7.1993). Further a prayer has been made that the defendants have not derived any right, title and interest over the suit land by virtue of sale deed No. 10919 dated 5.10.1988 or by gift deed No. 11340 dated 29.10.1991. It is further pleaded that Mahendra Mistry, defendant No. 1 and Ashok Mistry, the husband of the plaintiff purchased the suit land from one Maheshi Sao and others vide registered sale deed No. 10919 dated 5.10.1988. It is further case of the plaintiff that as the consideration amount was not paid, the said sale deed was cancelled on 27.4.1993 by a deed of cancellation. It is further case that after cancellation of sale deed, Mahendra Mistry executed a deed of gift No. 11340 dated 29.10.1991 in favour of his wife- Sumitra Devi, measuring the area 15 decimals of Plot No. 89. The further case of the plaintiff is that since the sale deed was cancelled vide Ext. 1/1, the defendant Mahendra Mistry did not acquire any title over the property and hence he could not have gifted the property to his wife, thus the gift deed is illegal and void ab initio . It is also case of the plaintiff that 30 decimals of land of Plot No. 89 was purchased by her from Maheshi Sao and others after paying due consideration money. Be it noted that the said 30 decimals of land was transferred to the husband of the plaintiff and defendant vide Maheshi Sao and other vide registered deed No. 10919 dated 5.10.1988.

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The defendants appeared and pleaded that the sale deed was executed in favour of Mahendra Mistry and Ashok Mistry with respect of 30 decimals of land of Plot No. 89, Khata No. 21 village Jamune and each vendee got 15 decimals of land. The pleading of the plaintiff to the extent that the consideration money was not paid, was denied by the defendants. The defendants pleaded that dishonestly the sale deed was cancelled vide Cancellation deed No. 4023 dated 27.4.1993. The defendants also state that the plaintiff has no right and title over the land in question and sale deed No. 4023 dated 27.4.1993 has no sanctity of law.

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On the pleadings of the parties, the trial court framed six issues. Issue Nos. 4 and 5 of utmost importance, which are as follows:

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4. Did the sale deed No. 4023 dated 12.7.1993 valid and legal transaction creating prefect title and interest in favour of the plaintiff?

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5. Is the deed of gift dated 29.10.91 a void, inoperative document?

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The plaintiffs examined 7 witnesses whereas defendants adduced four witnesses. Several documents were also exhibited by the parties in support of their case.

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The trial court after considering the evidences of the parties, has answered the Issue No. 4 against the plaintiff. The court has held that only with the consent of the parties, any deed or instrument may be cancelled by cancellation deed, otherwise once a title has passed by virtue of sale deed, an unilateral cancellation deed cannot revert the title. So far as issue No. 5 is concerned, the said issue was decided against the plaintiff. The court further held that the gift deed of 1991 creates perfect right, title and interest upon the wife of defendant No. 1. The court also held that the subsequent sale deed in favour of the plaintiff does not create any right, title and interest in favour of the plaintiff. Being aggrieved by the aforesaid judgment, an appeal was preferred by the plaintiff, which was also dismissed with a concurrent findings of fact.

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Counsel for the appellant submits that since the sale consideration was not paid to the vendor, the vendor cancelled the deed by executing a cancellation deed and when cancellation deed has been executed, it is in the domain of the vendor to execute another sale in favour of the plaintiff, which will transfer title in favour of the plaintiff. He further submits that the courts below have failed to take into consideration that since the consideration amount was not paid, it was well within the right of the vendor to execute the cancellation deed.

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The question which falls for consideration is as to whether the cancellation deed has any effect on the fact of this case. I find that the

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cancellation deed is unilateral. It is pertinent to mention herein that the cancellation deed is executed on 27.4.1993 whereas the sale deed in favour of the husband of the plaintiff and defendant No. 1 was executed in the year 1988. It is also very surprising to note that the deed of cancellation and the subsequent sale deed executed in favour of the plaintiff through which the plaintiff is claiming title is on the same date. If the consideration money was not paid while executing the sale deed of 1988, then why the vendor did not take any steps for cancellation of the deed immediately, is unexplained. Further the issue as to whether a sale deed (registered) can be cancelled by a cancellation deed, has been set at rest by the Full Bench of Hon'ble Madras High Court in the Case of M/s Latif Estate Line India Ltd. Vs. Mrs. Hadeeja Ammal and Ors. reported in AIR 2011 Madras 66 (Full Bench) . The Hon'ble Full Bench of Madras High Court held in paragraph 48 that once the sale has been executed and completed, the owner is divested with his ownership of property and retains no control or right over the said property. Once the owner is divested himself of control and ownership of the property, he cannot execute any deed of cancellation in respect of the property, in which, he has divested with the ownership.

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In this case, both the courts below held that vendor of the plaintiff's husband and the defendant No. 1 was divested with the property and thus he could not have cancelled the sale deed, which he had executed in favour of the plaintiff's husband and defendant No. 1. The title had already passed to the defendant No. 1 and plaintiff's husband. The said title can not revert to the seller. Once the title passes from the seller, the said vendor has no right and title over the property, which he can again transfer to the plaintiff by virtue of sale deed No. 4023 dated 27.4.1993. Thus, no title passed in favour of Sumitra Devi by virtue of the said sale deed. Both the courts below have rightly held that Sumita Devi had no right by virtue of sale deed No. 4023 dated 27.4.1993. The suit was rightly dismissed by both the courts below.

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Since there is no substantial question of law, which can be formulated in this case, as the question which has been raised, has already been answered by the Full Bench of Madras High Court in the case of M/s Latif Estate Line India Ltd. Vs. Mrs. Hadeeja Ammal and Ors. reported in AIR 2011 Madras 66 (Full Bench) , this appeal is liable to be dismissed.

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This appeal is dismissed, accordingly.

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(ANANDA SEN, J.)

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Anu/C.P.2

Smt Sumitra Devi v. Mr Mahendra Mistry and Anr.

Case brief

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Smt Sumitra Devi v. Mr Mahendra Mistry and Anr.

Case brief

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What the court decided

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