Allowed

Pappu Singh and Anr. v. Prahlad and Ors.

Rajasthan HC7 Nov 2019CFA/573/2017

Case brief

AI extract

What is this about?

In a first appeal against a decree cancelling registered sale deeds due to cheque dishonor, the court held that payment was not a condition precedent for title transfer. Relying on Supreme Court precedents, the High Court found that since the deed did not explicitly make consideration essential, title passed upon registration, and the appeal was allowed.

What did the court decide?

The appeal was allowed. The impugned judgment and decree from the Additional District Judge quashed and set aside. A new decree was ordered.

Pappu Singh and Anr. Vs Prahlad and Ors. — Contract and Commercial Disputes | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil First Appeal No. 573/2017

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APPELLANTS:

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Pappu Singh Son Of Shri Narayan Singh Ji Rajpoot, Aged about 46 years, Resident Of Near Hanuman Temple, Regar Mohalla, Tehsil And District - Chittorgarh.

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Shyam Lal Son Of Shri Devi Lal Regar, Aged about 36 years, resident Of Senthi, Tehsil And District- Chittorgarh.

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----Defendant Nos. 2 & 3 respective: Versus

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RESPONDENTS:

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Prahlad Sen Son Of Shri Badri Lal Sen, Resident Of Sindvadi, Post- Sindvadi, At Present Resident Of Bahetiyon Ki Gali, Chittorgarh, Tehsil & District – Chittorgarh.

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...Plaintiff:

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Puran Mal Son Of Shri Bhavani Shankar Sharma, Resident Of B-105, Bapu Nagar, Gurjar Mohalla, Senthi, Tehsil & District - Chittorgarh.

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Municipal Council, Chittorgarh Through Commissioner, Municipal Council, Chittorgarh.

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----Defendant Nos. 1 & 4 respectively:

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For Appellant(s) : Mr. A.K. Babel. For Respondent(s) : Mr. S.L. Jain.

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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J U D G M E N T

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Date of Reserve ::: 23/10/2019 Date of Pronouncement ::: 07/11/2019

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(2 of 17)

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[CFA-573/2017]

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The appellants-defendants Nos.2 and 3 (hereinafter referred to as ‘the appellants’) have approached this Court by way of the instant first appeal for assailing the judgment and decree dated 06.11.2017 passed by the Additional District Judge No.3, Chittorgarh in Civil Original Suit No.06/2013 whereby the suit filed by the plaintiff-respondent No.1 has been decreed.

¶21

Brief facts relevant and essential for disposal of the appeal are noted herein below:

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The respondent plaintiff filed a suit for cancellation of the sale deed and permanent injunction in the court of the District Judge, Chittorgarh which came to be transferred to the Court of the Additional District Judge No.3 Chittorgarh for trial. It was averred in the plaint that two sale deeds were executed by the plaintiff Prahlad Sen, one in favour of Puran Mal (Ex-1) and the other in favour of Pappu Singh (Ex-2) on 05.12.2011. Puran Mal in turn, executed a registered sale deed of the plot purchased by him in favour of Shyam Lal S/o Devilal Regar (Ex-3) 15.02.2012. The suit was filed on the premise that the two cheques bearing No.324159 dated 06.12.2011 and 324160 dated 10.12.2011 issued by Puran Mal as consideration for the sale of both the plots, were dishonoured upon being presented in the Bank. Prahlad Sen the plaintiff contended that the sale deeds were got executed without consideration and were thus liable to be declared as null and void and in the alternative, it was prayed that if the sale deeds were not cancelled, then a decree for amount of the cheques’ amount alongwith damages and interest thereupon be issued. The appellants herein and Puran Mal were arrayed as defendants in the suit. Puran Mal chose not to put in appearance

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(3 of 17)

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[CFA-573/2017]

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despite service of the notice and thus, an ex-parte proceedings were undertaken against him.

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Pappu Singh and Shyam Lal the appellants herein filed written statements wherein, they asserted that the sales were lawful. Shyam Lal had purchased the property from Puran Mal and that entire consideration towards both the sale deeds was paid to the said Puran Mal in cash. The appellants herein, also filed a counter claim. The learned trial court, proceeded to formulate the following issues for determination:

¶27

“1vk;k izfroknh laŒ1 o 2 us Ny o diV dk okni= dh pj.k la[;k&1 esa of.kZr Hkw[k.M ds fnukad 05-12-2011 dks foØ; foys[k oknh ls iathd`r djk fy, tks izfrQy jfgr gksus ls fujLr ;ksX; gS \ & oknh

¶28

2- vk;k fnukad 05-12-2011 dks fu"ikfnr izfrQy jfgr foØ;foys[k ds vk/kkj ij izfroknh laŒ1 us izfroknh laŒ 3 ds i{k esa fnukad 15-02-2012 dks foØ; foys[k fu"ikfnr dj iath;u djk;k tks 'kwU; ,oa izHkkoghu gS \ & oknh

¶29

3- vk;k izfroknh laŒ 2 o 3 }kjk izfrokn i= ds fo’ks"k dFku esa of.kZr oS/k ,oa ln~Hkkoh Ø; fd;s x;s vius vius Hkw Hkkx 15 xq.kk 45 o 15 xq.kk 45 QhV ij cus edku ij cgSfl;r LokfeRo ls dkfct gS \ & izfroknh laŒ 2 o 3

¶30

4- vk;k oknh izfroknh laŒ 2 o 3 izfrokni= dh fo’ks"k dFku dh pj.k la[;k&1 esa of.kZr Hkw Hkkx ,oa ml ij cus edku ls tcju rkdr ds cy ij csn[ky djus ij vkeknk gS blfy, izfroknh laŒ 2 o 3 oknh dks LFkkbZ fu"ks/kkKk ls ikcan djkus ds vf/kdkjh gS \

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& izfroknh laŒ2 o 3

¶32

5- vk;k izfroknh laŒ 2 o 3 }kjk izLrqr dkm.Vj Dyse okndkj.k ,oa deh U;k;’kqYd ds vHkko esa [kkfjt ;ksX; gS \ & oknh

¶33

6- vk;k izfroknh laŒ 2 o 3 }kjk dkm.Vj Dyse esa mBk;s izfrnkosa dk fu.kZ; oknh ds okni= esa r; ugha fd;s tk ldrs gSa \

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& oknh 7- vuqrks"k \”

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(4 of 17)

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[CFA-573/2017]

¶37

The plaintiff claimed in his plaint that the transfer was subject to payment of consideration and that he continued to be in possession of the property in question despite the execution of the registered sale deeds. The passing of the title was dependent on payment of consideration which was sine-qua-non of the contract. In absence thereof, no rights were conferred upon the purchasers and the sale deeds were null and void. The parties led their evidence. After hearing the arguments advanced by the respective parties and appreciating the evidence available on record, the learned trial court, proceeded to decree the suit filed by the respondent plaintiff and declared the questioned registered sale deeds to be null and void by judgment and decree dated 06.11.2017 which is assailed in this appeal.

¶38

Learned counsel Shri Babel representing the appellants, vehemently and fervently contended that it was nowhere stipulated in the sale deeds executed by the plaintiff that realisation of consideration was the essence of sale. He drew the Court’s attention to the following recitals of the sale deeds dated 05.12.2011 (Ex-1 & Ex-2) wherein, the contents except for the cheque number are the same:

¶39

“ foØ; jkf”k ,oa “krksZa dk fooj.k &

¶40

foØsrk dks vius ikfjokfjd [kpZ o vU; oS/k dk;kZsa esa :i;ksa dh t:jr gksus ls mDr vkoklh; Hkw[k.M 1350 oxZQhV esa ls nf{k.k fn”kk dk 1@2 fgLlk vFkkZr 675 oxZQhV dks leLr gd] gdqd] lq[kkf/kdkj o ikrky ls vkdk”k rd lfgr bl foys[k ds ek/;e ls Øsrk ds i{k esa :i;s 5]33]250@& v{kjs ikap yk[k rsrhl gtkj nks lkS ipkl :i;s izfrQy Lo:i foØ; }kjk vUrfjr dj ekSds ij okLrfod o oS/k :i ls vkf/kiR; iznku dj fn;k

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(5 of 17)

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[CFA-573/2017]

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gS ftls Øsrk us Lohdkj dj viuh iw.kZ] LorU=] lgefr iznku dj nh gSA vr% foØsrk ;g foys[k vkt fnol dks LFkku fprkSMx<+ esa Øsrk ds i{k esa lk{kh Lo:i fu’ikfnr dj jgk gS%&

¶44

1- fd foØsrk }kjk mDr lEiw.kZ foØ; jkf”k 5]33]250@& v{kjs ikap yk[k rsrhl gtkj nks lkS ipkl :i;s tfj;s psd uaŒ 324160 cMkSnk jktLFkku xzkeh.k cSad 'kk[kk fprkSMx<+ ls izkIr gks tkus ds i”pkr~ Ø s rk ls izkIr djuk 'ks"k ugha jgsxhA ftldh oS/k vfHkLohd`fr bl foys[k ds ek/;e ls Øsrk ds i{k esa iznku dj nh gSA vr% Øsrkx.k mDr fofØr Hkw[k.M dk LokfeRo vf/kdkj ls pkgs ftl rjg ls mi;ksx] miHkksx] vUrj.k] jgu] foØ; djs] fuekZ.k dk;Z djs o vkokl djus ;k vU; ls djokus ,oa uy fctyh dusD”ku ysus] dk;Zokgh djus] mDr Hkw[k.M dks foØsrk dh vuqifLFkfr esa Øsrk dks vius uke VªkalQj djkus dk iw.kZ oS/kkfud vf/kdkj gksxk ftlesa foØsrk dks dksbZ vkifRr ugha gksxhA

¶45

2- fd foØsrk dks mDr fofØr IyksV ds laca/k esa tks Hkh gd o vf/kdkj izkIr Fks os lHkh bl foys[k ds ek/;e ls vkt fnol ls gh Øsrk ds i{k esa fufgr o vUrfjr gks pqds gSA vc foØsrk dk mDr fofØr IyksV ls fdlh Hkh Hkkafr dk dksbZ lEcU/k] LoRo] fgr] vf/kdkj o vkf/kiR; ugha jgk gS vkSj vkt fnol ls gh bl fofØr IyksV dk Øsrk ,d ek= iw.kZ :i ls ekfyd Lokeh dkfct ,oa LoRo/kkjh gks pqdk gSA

¶46

3- fd ;fn mDr IyksV ij vkt fnol ls iwoZ vU; dk

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dksbZ Hkkj] _.k] vUrj.k o LoRo] vf/kdkj laca/kh =qfV ik;s tkus ij mldk lkjk nkf;Ro foØsrk dk jgsxkA 4- fd bl foØ; i= ls foØsrk o muds oS/kkfud mÙkjkf/kdkjh vkfn ikcUn o lger gS o jgsxsA”

¶48

and urged that absolute rights over the suit property stood transferred in favour of the purchasers defendants with the execution of the sale deeds and that the plaintiff had no right to seek cancellation of the registered document on the ground that consideration was not paid. In support of his contentions, Shri Babel relied upon the Supreme Court decision in the case of State

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(6 of 17)

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[CFA-573/2017]

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of Kerala vs. The Cochin Chemical Refineries Ltd., reported in

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AIR 1968 SC 1361 , and urged that once a document transferring immovable property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Such a completed transaction is governed by the provisions of the Transfer of Property Act and only so much of the Contract Act as is applicable thereto.

¶53

Relying upon the Supreme Court decision in the case of Kaliaperumal vs. Rajagopal & Anr. reported in 2009(3) RLW 2468 (SC) , Shri Babel urged that as per Section 54 of the Transfer of Property Act, once a sale deed of an immovable property is registered, irrespective of the non-payment of entire consideration, the title thereof passes on to the purchaser. He contended that as the registered sale deeds which were challeged in the suit, nowhere conveyed that payment of price was a condition precedent for completion of sales, manifestly, the intention of the parties was never to govern the same by realisation of consideration.

¶54

He relied upon on the following observation made by a Coordinate Bench of this Court in the case of M/s. Key Pee Buildtech Pvt. Ltd. vs. Smt. Shahjahan Begum, reported in 2015 (4) CDR 2070 (Raj.) :

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“14. Looked from another angle, this Court is of the further view that the plaint also does not disclose cause of action and is liable to be rejected on this count also. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint (Church of Christ Charitable Trust and Educational Charitable

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(7 of 17)

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[CFA-573/2017]

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Society Vs. Ponniamman Educational Trust: 2012(8) SCC 706). The sale deed executed by the plaintiff does not incorporate any recital that title shall not vest in the buyer until and unless sale price is paid. In view of Section 54 of the Transfer of Property Act, coupled with the fact of absence of any such recital, as mentioned hereinabove, the title passed on to the buyer on the execution and registration of the sale deed. In such fact and situation, the plaintiff has no legal right to get the sale deed annuled, even if it is presumed that the contracted sale price was not paid to her. The suit, as instituted is not for recovery of any unpaid sale price but for annulment of a registered sale deed on the averment that the agreed sale price was not paid. Even if the plaint averments are taken on its face value and presumed to be true and correct, the plaintiff is not vested with any legal right to claim cancellation of the sale deed. The term “cause of action” not only incorporates infringement of legal right but the legal right itself. Thus, the plaintiff being devoid of any legal right to claim annulment of sale deed and on the basis of such plaint averments, it can safely be held that the plaint does not disclose any cause of action.”

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and urged that it has been clearly laid down by this Court that when the sale deed executed inter se between the parties do not incorporate any recital that title shall not vest in the buyer until and unless sale price is paid, the realisation of consideration doesn’t become a sine-qua-non for such transfer and by virtue of Section 54 of the Transfer of Property Act coupled with the factum of such non-recital, title passes on to the buyer on execution of the sale deed and the plaintiff seller has no right to get the sale deed annulled. On these grounds, Shri Babel sought acceptance of the appeal and reversal of the impugned judgment and decree dated 06.11.2017.

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Per contra, Shri S.L. Jain, learned counsel representing the appellant vehemently and fervently urged that passing on of consideration was the essence of the contract. Admittedly, the two cheques No. 324159 and 324160 which Puran Mal provided to the plaintiff respondent at the time of execution of the registered sale

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(8 of 17)

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[CFA-573/2017]

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deeds (Ex-1 & Ex-2), were dishonoured upon presentation and as such, the sale became without consideration. Shri Jain referred to Section 20 of the Contract Act and urged that the agreement where both the parties are under mistake as to a matter of fact, would be void.

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While referring to Sections 54 and 55 of the Transfer of property Act, Shri Jain urged that as the promised consideration was not paid, the promise was breached and no rights were conferred upon the purchasers by virtue of the sale deeds. Shri Jain urged that the trial court correctly appreciated the evidence and came to the only possible and logical conclusion that the sale which was undertaken without consideration was void and thus, sale deeds were rightly nullified/ cancelled. On these grounds, Shri Jain sought dismissal of the appeal.

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I have given my thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record.

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The controversy can be summarized into following points of determination:-

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(i) whether the sale deeds executed by the plaintiff respondent were without consideration;

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(ii) whether the realisation of consideration was the essence of sale, and

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(iii) whether the sale deeds executed even if without realisation of consideration were liable to be set aside.

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(9 of 17)

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[CFA-573/2017]

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For the purpose of appreciating these contensions, the conditions of the sale deeds have to be considered and the recitals made therein would have a material bearing for finding out the intention of the parties at the time of sale. Both the sale deeds (Ex.2 and Ex.1) bear the following common material recitals (except for the cheque number) which are being reproduced herein below for the sake of ready reference:

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“1fd foØsrk us mDr lEiw.kZ foØ; jkf’k 5]33]250@& v{kjs ikap yk[k rsrhl gtkj nks lkS ipkl :i;s tfj;s psd uaŒ 324159 cMkSnk jktLFkku xzkeh.k cSad 'kk[kk fprkSMx<+ ls izkIr gks tkus ds i’pkr~ Ø s rk ls izkIr djuk 'ks"k ugha jgsxhA ftldh oS/k vfHkLohd`fr bl foys[k ds ek/;e ls Øsrk ds i{k esa iznku dj nh gSA vr% Øsrkx.k mDr fofØr Hkw[k.M dk LokfeRo vf/kdkj ls pkgs ftl rjg ls mi;ksx] miHkksx] vUrj.k] jgu] foØ; djs] fuekZ.k dk;Z djs o vkokl djus ;k vU; ls djokus ,oa uy fctyh dusD’ku ysus] dk;Zokgh djus] mDr Hkw[k.M dks foØsrk dh vuqifLFkfr esa Øsrk dks vius uke VªkalQj djkus dk iw.kZ oS/kkfud vf/kdkj gksxk ftlesa foØsrk dks dksbZ vkifRr ugha gksxhA

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2- fd foØsrk dks mDr fofØr IyksV ds laca/k esa tks Hkh gd o vf/kdkj izkIr Fks os lHkh bl foys[k ds ek/;e ls vkt fnol ls gh Øsrk ds i{k esa fufgr o vUrfjr gks pqds gSA vc foØsrk dk mDr fofØr IyksV ls fdlh Hkh Hkkafr dk dksbZ lEcU/k] LoRo] fgr] vf/kdkj o vkf/kiR; ugha jgk gS vkSj vkt fnol ls gh bl fofØr IyksV dk Øsrk ,d ek= iw.kZ :i ls ekfyd Lokeh dkfct ,oa LoRo/kkjh gks pqdk gSA”

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The recital at para No.1 from both the sale deeds (Ex.2 and Ex.1) conveys that no amount would remain due to the purchaser

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(10 of 17)

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after receiving the amount covered by the cheque No.324159 and cheque No.324160 respectively which were being handed over to the seller at the time of execution of the sale deeds. In the same para, all rights pertaining to the use, transfer, letting, construction, etc. were passed on to the purchaser. The seller explicitly agreed that all the rights which vested in him had been transferred to the purchaser through the sale deeds on the very day of the sale and the possession of the plot was handed over to the respective purchaser. Thus, it is clear as day light that realisation of consideration or a part thereof was not the essence of the sale. The only intention of parties by way of the recitals made in the sale deed was that no money remain due to the seller once he received the amount of cheque. No such stipulation was made that in case, the cheque amount was not received, the sale would be liable to be annulled. Therefore, this Court is thoroughly satisfied that realisation of consideration was not the essence of sale (from a bare perusal of the sale deeds in question).

¶79

Even in the plaint, the plaintiff has nowhere claimed that the passing on of all the rights of the suit property was subject to the payment of consideration. On perusal of the statement of the plaintiff (PW-1) Prahlad Sen, it is clear that he has lodged criminal cases for the dishonouring of the two cheques which were provided by Puran Mal by way of the sale consideration. The plaintiff also admitted that he did not enter into any transaction with Pappu Singh and Shyam Lal. Pappu Singh did not give any cheque and that the cheques were given by Puran Mal. He executed the sale deed in the name of Pappu Singh on the saying of Puran Mal. Thus, as per the evidence of the plaintiff, there was

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(11 of 17)

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[CFA-573/2017]

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no privity of contract between him and Pappu Singh. The other witnesses of the plaintiff gave formal evidence.

¶83

The defendant Pappu Singh stated in his evidence that he did not give any cheque to the plaintiff at the time of sale. He paid the cash amount of the transaction to Prahlad, Puran Mal and Santosh. No cross-examination was made from the defendant on the aspect that realisation of consideration was the essence of sale. Similar is the evidence of DW-2 Shyam Lal. Manifestly thus, there is ample material on record of the case for this Court to be satisfied that realisation of consideration was not the essence of the sale.

¶84

Hon’ble the Supreme Court in the case of Kaliaperumal vs. Rajagopal (supra) considered an identical controversy and held as below:

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“8. Sale is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovable property of the value of Rs.100/- or more and that is by a registered instrument. 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 Transfer of Property Act, 1882 (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 nonpayment 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. Normally, ownership and title to the property will pass to the

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(12 of 17)

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[CFA-573/2017]

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purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of Evidence Act ”. (Emphasis supplied)

¶89

Seen in light of the above precedent of Hon’ble the Supreme Court, the primary consideration for determining the transfer of the ownership is the intention of the parties. The intention has to be gathered from the recitals made in the registered sale deed where the same is unambiguous. In case, there is no such stipulation in the contract that payment of price was the essence of sale, manifestly, the sale deed cannot be called into question on the ground that the sale price or a part thereof is not paid. The only remedy of the vendor in such a situation would be to sue for the balance price and he cannot avoid the sale. Registration is prima facie proof of intention to transfer the property subject to the condition that the payment of consideration is not a condition precedent.

¶90

In the case of State of Kerala vs. The Cochin Chemical Refineries Ltd. (supra) , Hon’ble the Supreme Court held that once a document transferring immovable property has been

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(13 of 17)

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[CFA-573/2017]

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registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Thus, the provisions of the Transfer of Property Act would apply and the provisions of the Contract Act cannot be utilized so as to override the situation covered by the Transfer of Property Act.

¶94

In the case of M/s. Key Pee Buildtech Pvt. Ltd. vs. Smt. Shahjahan Begum (supra) , the learned Single Bench of this Court held that where the sale deed executed by the plaintiff does not incorporate any recital that the title would not vest in the buyer until and unless sale price is paid, the title passes on to the buyer on the execution and registration of the sale deed. In such circumstances, the plaintiff has no legal right to get the sale deed annulled even if it is presumed that the contracted sale price was not paid to the plaintiff.

¶95

Shri Jain cited following judgments cited to support his contentions:

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(i) Bai Asmalbai W/o. Vora Mahamad Alli vs. Esmailji Abdulali & Ors., reported in AIR 1964 Gujarat 174; and

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(ii) Premnarayan & Anr. vs. Kunwarji & Anr. reported in AIR 1993 Madhya Pradesh 162 .

¶98

Suffice it to say that these were the judgments rendered by the different High Courts in the country and as view taken therein is prima facie contrary to the Supreme Court decisions relied upon by Shri Babel, hence, these judgments are of no help to the defendants.

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(14 of 17)

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[CFA-573/2017]

¶101

In the case of Janak Dulari Devi & Anr. vs. Kapildeo Rai & Anr. reported in AIR 2011 SC 2521 , relied upon by Shri Jain, the Supreme Court considered the entire controversy and held as below:

¶102

“ 9 . In Kaliaperumal vs. Rajagopal & Anr. [2009 (4) SCC 193], this Court again considered the issue and held:

¶103

"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 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. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property.

¶104

The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or' ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by section 92 of Evidence Act. x x x x There is yet another circumstance to show that title was intended to pass only after payment of full price. Though the sale deed recites that the purchaser is entitled to hold, possess and enjoy the scheduled properties from the date of sale, neither the possession of the properties nor the title deeds were delivered to

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(15 of 17)

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[CFA-573/2017]

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the purchaser either on the date of sale or thereafter. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact, the appellant, therefore, sought a decree for possession of the suit properties from the respondents with mesne profits. If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant.

¶108

10. Where the sale deed recites that on receipt of the total consideration by the vendor, the property was conveyed and possession was delivered, the clear intention is that title would pass and possession would be delivered only on payment of the entire sale consideration. Therefore, where the sale deed recited that on receipt of entire consideration, the vendor was conveying the property, but the purchaser admits that he has not paid the entire consideration (or if the vendor proves that the entire sale consideration was not paid to him, title in the property would not pass to the purchaser.”

¶109

The said case was passed in reference to the prevalent practice in State of Bihar known as ‘ ta khubzul badlain ’ which is peculiar to State of Bihar laying down that title of the property would be passed on to the purchaser only when there is an exchange of equivalence. No such practice is prevalent in the State of Rajasthan. Thus, on facts as well as in law, the ratio of the above decision has no applicability to the controversy at hand.

¶110

On a perusal of Section 54 of Transfer of Property Act, it is clear as day light that promise to pay itself is sufficient consideration for sale and thus, in view of the discussion made herein above, I am of the firm opinion that the trial court committed grave error in facts as well as in law while appreciating the material available on record deciding the issues of the suit in favour of the plaintiff.

¶111

(16 of 17)

¶112

[CFA-573/2017]

¶113

The issue No.1 pertaining to the cancellation of the sale deed on the ground of the same being without consideration was illegally decided by the trial court in favour of the plaintiff because, as has been discussed above, realisation of consideration was not the essence of the sale deed as per the recitals made in the sale deed and as per the evidence of the parties. Thus, the issue No.1 deserves to be decided against the plaintiff and in favour of the defendants.

¶114

Issue No.2 is dependent on the conclusion of the issue No.1. Since the issue No.1 has been decided in favour of the defendants and against the plaintiff, as a consequence, the issue No.2 deserves to be decided in favour of the defendants and against the plaintiff.

¶115

The issue No.3 was decided by the trial court in favour of the plaintiff on the ground that the defendants failed to lead evidence to show that they were having possession on the plot in question. The DW-2 Shyam Lal had pleaded before the trial court that he was residing on the plot in question after making construction of a house thereupon. However, no such documentary or oral evidence was led by the defendant to satisfy the court that he had constructed any house on the plot. Thus, decision of the trial court on the issue No.3 rendered in favour of the plaintiff is absolutely justified.

¶116

The issue No.4 regarding the defendants appellants making an attempt to forcibly oust the plaintiff from the plots in question was decided against the plaintiff and rightly so.

¶117

(17 of 17)

¶118

[CFA-573/2017]

¶119

In view of the above discussion, this Court is of the firm opinion that the findings recorded by the trial court on the issue Nos.1 and 2 and declaration of the sale deeds to be void, is perverse on facts as well as in law and hence, cannot be sustained.

¶120

Regarding the prayer of the plaintiff respondent for issuance of money decree regarding the cheque amount, neither any issue was framed by the trial court in this regard nor was any order passed thereupon and as such, this Court need not to advert to this part of the plaintiff’s prayer.

¶121

Thus, the appeal deserves to be and is hereby allowed. The impugned judgment and decree dated 06.11.2017 passed by the Additional District Judge No.3, Chittorgarh in Civil Original Suit No.06.2013 is quashed and set aside. The decree be prepared accordingly.

¶122

No order as to costs.

¶123

Record be returned to the trial court forthwith.

¶124

(SANDEEP MEHTA),J

¶125

25-Tikam/-

Pappu Singh and Anr. v. Prahlad and Ors.

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Pappu Singh and Anr. v. Prahlad and Ors.

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