# Munni Lal v. Mohd. Rafik Kidwai & Anr

- **Citation:** (2023) 7 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-22
- **Case number:** Second Appeal No. 337 of 1998
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munni-lal-v-mohd-rafik-kidwai-anr-50657
- **Pages:** 26

## Headnote

Civil Law-The Code of Civil Procedure,
1908-Section 100-Second Appeal---Suit
for cancellation of sale deed dismissed,
appeal allowed--- Trial Court from all this
evidence has concluded that once it was
admitted to the plaintiff that the Sub-Registrar
before registering the document had read it out
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
911
to
her
and
the
Sub-Registrar
had
not
pressurized her into thumb marking it or make
her mark it forcibly, if there was an unpaid sale
consideration of Rs.6000/- by the defendant,
the plaintiff could have refused to thumb mark
the document. The Trial Court has also noticed
that PW-2 also acknowledged the fact that the
Sub-Registrar read out the document before
registering it and also the fact that it said that
Rs.6000/- were received by the plaintiff as an
advance, but the witness still appended his
signatures to the document--- The finding of the
Lower Appellate Court ignores the fact that DW3 who is a witness of the transaction, was
produced before the Court and testified to it. His
testimony has been noticed by the Trial Court to
return findings on the point of payment of
Rs.6000/- by way of earnest. Those findings
have been recorded based on DW-3's testimony
in the defendant's favour. The Lower Appellate
Court has not reversed that finding by the Trial
Court in the defendant's favour. Rather, the
Lower
Appellate
Court
has
ignored
the
testimony of DW-3 holding that this witness was
never produced by the defendant---The findings
recorded by the Lower Appellate Court are ones
that set aside the findings recorded by the Trial
Court upon the most crucial issue without
consideration of the most material evidence on
record---The judgment of reversal written by
the Lower Appellate Court cannot be sustained.
(Para 55, 63 & 64)

Second appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,918 of 91,377. This is a partial read: ask again with offset=39918 for what follows._

910 INDIAN LAW REPORTS ALLAHABAD SERIES
has held that the doctors doing duty with
reasonable care would not incur liability
even if their treatment failed. Harm
resulting from mischance or misadventure
or through an error of judgment would not
necessarily attract such liability. Simply
because a patient has not favourably
responded to a treatment given by a doctor
or a surgery has failed, the doctor cannot
be held straightaway liable for medical
negligence.

5. Per contra, learned A.G.A. for the
State has asserted that the petitioner
diagnosed and advised surgery to the
informant's son suffering from Hernia. The
gross negligence on the part of the
petitioner is that the surgery/operation took
place without seeking consent of the
natural guardian/father/first informant of
the deceased, who was available at the time
of the incident. The consent letter annexed
as
Annexure
No.
SA-1
of
the
Supplementary Affidavit indicates that the
said consent has been procured from the
uncle Manish and the grand-mother Sita
Devi. Despite the natural guardian being
present at the place of incident as is evident
from the FIR, the petitioner did not care to
seek the consent from the father/informant.

6. From the bare reading of the First
Information Report, it is apparent that the
son of the first informant died during the
treatment/surgery undergone for Hernia.
The impugned First Information Report has
been registered under Section 304 IPC and
the petitioner being a care taker was
supposed to be responsible for providing
medical care. The contention of the learned
counsel for the petitioner that he is a care
taker, is merely his defence, which is not to
be considered in a writ petition which seeks
quashing of the FIR. The investigation is at
the inceptive/nascent stage. Material has to
be collected whether the offence is culpable
or is a case of gross negligence. It is too
early to conclude whether the petitioner
could avail and seek the protection in the
light of the guidelines/parameters as laid
down by the Hon'ble Supreme Court in
Jacob Mathew Vs. State of Punjab &
Another reported in 2005(5) Supreme 297,
in regard to medical negligence. The
criminal prosecution cannot be thwarted as
from a bare reading of the FIR, the
allegations disclose commission of a
cognizable offence.

7. No interference is required.

8.

The
writ
petition
is,
therefore,dismissed.
----------
(2023) 7 ILRA 910
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 337 of 1998

Munni Lal ...Appellant
Versus
Mohd. Rafik Kidwai & Anr.
 ...Respondents

Counsel for the Appellant:
Sri M.S. Pipersenia, Sri Shiv Kumar Singh

Counsel for the Respondents:
Sri A.D. Saundars, Sri S.K. Tiwari, Sri Sundama
Ji Shandiya

Civil Law-The Code of Civil Procedure,
1908-Section 100-Second Appeal---Suit
for cancellation of sale deed dismissed,
appeal allowed--- Trial Court from all this
evidence has concluded that once it was
admitted to the plaintiff that the Sub-Registrar
before registering the document had read it out
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
911
to
her
and
the
Sub-Registrar
had
not
pressurized her into thumb marking it or make
her mark it forcibly, if there was an unpaid sale
consideration of Rs.6000/- by the defendant,
the plaintiff could have refused to thumb mark
the document. The Trial Court has also noticed
that PW-2 also acknowledged the fact that the
Sub-Registrar read out the document before
registering it and also the fact that it said that
Rs.6000/- were received by the plaintiff as an
advance, but the witness still appended his
signatures to the document--- The finding of the
Lower Appellate Court ignores the fact that DW3 who is a witness of the transaction, was
produced before the Court and testified to it. His
testimony has been noticed by the Trial Court to
return findings on the point of payment of
Rs.6000/- by way of earnest. Those findings
have been recorded based on DW-3's testimony
in the defendant's favour. The Lower Appellate
Court has not reversed that finding by the Trial
Court in the defendant's favour. Rather, the
Lower
Appellate
Court
has
ignored
the
testimony of DW-3 holding that this witness was
never produced by the defendant---The findings
recorded by the Lower Appellate Court are ones
that set aside the findings recorded by the Trial
Court upon the most crucial issue without
consideration of the most material evidence on
record---The judgment of reversal written by
the Lower Appellate Court cannot be sustained.
(Para 55, 63 & 64)

Second appeal allowed. (E-15)

List of Cases cited:

1. Vidhyadhar Vs Manikrao & anr., (1999) 3 SCC
573

2. Dahiben Vs Arvindbhai Kalyanji Bhanusali
(Gajra) Dead through Legal Representatives &
ors., (2020) 7 SCC 366

3. Kewal Krishan Vs Rajesh Kumar, AIR 2022 SC
564

4. Baijnath Singh Vs Paltu, (1908) ILR 30,
Allahbad 125

5. Chandrashankar Manishankar Vs Abhla
Mathura & ors., AIR 1952 Bombay 56,

6. Sukaloo & anr.Vs Punau, AIR 1961 MP 176

7. Kaliaperumal Vs Rajagopal & anr., (2009) 4
SCC 193

8. Raj Dutt & ors. Vs Nageshwar & ors., 2019
(9) ADJ 252

9. Janak Dulari Devi & anr.Vs Kapildeo Rai &
anr., (2011) 6 SCC 555

10. Ganga Saran Vs Civil Judge, Hapur,
Ghaziabad and other, AIR 1991 All 114,

11. Raman Gopi & anr.Vs Kunju Raman
Uthaman, 2011 SCC OnLine Ker 4028

12. D.V. Lakshmana Rao Vs St. of Karn. & ors.,
2000 SCC OnLine Kar 775

13. Ramkumar Rajak Vs Smt. Geetadevi Gupta
& ors., F.A. No.345 of 2019, decided on
20.03.2023

(Delivered by Hon'ble J.J. Munir, J.)

This is a defendant's second appeal,
arising out of a suit for cancellation of sale
deed.

2. Original Suit No.168 of 1983 was
instituted by Smt. Jinnat against Munni Lal,
seeking a decree for cancellation of a
registered sale deed dated 11.10.1982. The
suit aforesaid was instituted in the ex-Court
of Munsif, Mauranipur, Jhansi, now redesignated as the Civil Judge (Jr. Div.).

3. Smt. Jinnat was the original
plaintiff and died pending suit. She was
substituted by her heirs and L.Rs. before
the Trial Court, who are the plaintiffrespondents here. According to the original
plaintiff, Smt. Jinnat, she was an old and
illiterate woman, a poor widow, and a
native
of
Village
Ranipur,
Tehsil
Mauranipur, District Jhansi. She was, at the
relevant time, living in Village Ladwari,
912 INDIAN LAW REPORTS ALLAHABAD SERIES
Tehsil
Niwari,
District
Teekamgarh
(Madhya
Pradesh),
where
she
was
employed in the Public Works Department.
She was bhumidhar in the possession of
Plot
Nos.1238/1/1-52,
1238/2/0-09,
1239/0-11, 1237/1/0-25, 1237/2/0-02 and
1247/1/0-14,
all
situate
at
Village
Bamhaura Sohagi, Tehsil Mauranipur,
District Jhansi. Smt. Jinnat, represented by
her heirs and LRs, shall hereinafter be
referred to as 'the plaintiff' unless the
context requires individual or a different
reference. According to the plaintiff, she
entered into a bargain with the defendant to
sell her bhumidhari land above described
(for short, 'the suit property'). The bargain
was made between the plaintiff and Munni
Lal son of Ghanshyam, the sole defendant,
for a total sale consideration of Rs.7000/-.

4. It is the plaintiff's case that parties
agreed that the entire sale consideration of
Rs.7000/- would be paid at the time of
registration of the sale deed before the SubRegistrar
in
his
office,
situate
at
Mauranipur. It is the plaintiff's case that
Munni Lal, who is now represented on
record of this appeal by his heirs and LRs,
respondent Nos.1/1, 1/2, 1/3, 1/4 and 1/5,
and referred hereinafter, for the sake of
convenience, as 'the defendant', was a
headstrong, vicious and deceitful man. He
took
the
plaintiff
along
to
Tehsil
Mauranipur on 11.10.1982 in connection
with the execution and registration of the
covenanted sale deed. The defendant
purchased the requisite stamp papers. The
defendant colluded with the scribe, Laxmi
Prasad, instructing him to scribe the deed
of sale. However, despite demand by the
plaintiff, at that time to pay the agreed sale
consideration of Rs.7000/-, the defendant
did not pay anything. He said that the entire
sale consideration would be paid to her
before the Sub-Registrar. On the said
pretext, the defendant along with scribe and
the witnesses, all of whom were in
collusion with the defendant, took along the
plaintiff to the Sub-Registrar's office. When
the plaintiff, the defendant, the scribe and
witnesses
entered
the
Sub-Registrar's
office, the Sub-Registrar, the scribe and the
witnesses, with whom the defendant was in
collusion, put pressure on the plaintiff to
thumb mark the deed. Thereupon, the
plaintiff told the Sub-Registrar that she had
agreed to sell her property for a sum of
Rs.7000/-, which she should be paid. Upon
this, the Sub-Registrar assured the plaintiff
that the defendant would be shortly paying
her the due sale consideration. It is pleaded
that to give effect to the contemplated
fraud, the defendant kept counting currency
in the Sub-Registrar's presence, but paid
her a sum of Rs.1000/- alone.

5. It is the plaintiff's case that she
repeatedly said that until she received the
entire sale consideration of Rs.7000/-, she
would not thumb mark the document. But,
no one paid heed to the plaintiff and
deliberately ignoring it, the scribe, the
witnesses, the defendant and a colluding
Sub-Registrar, forcibly made her thumb
mark the document. Despite the plaintiff
beseeching the defendant to pay the
balance sale consideration of Rs.6000/-, she
was not paid anything. It is averred in the
plaint that the plaintiff repeatedly requested
the defendant, the witnesses and the SubRegistrar, including the scribe to give her,
her due, but all of them, who were in
collusion, laughed it off saying that the
registration of the document was complete
and nothing was due. The plaintiff did not
receive a single rupee beyond Rs.1000/-.
The plaintiff did not, thus, receive the
agreed
sale
consideration
and
by
defrauding her, she was made to execute
and get registered the impugned sale deed.
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
913
Therefore,
on
the
same
day
and
immediately, the plaintiff proceeded to
Police Station Mauranipur and lodged a
First Information Report, giving rise to
Crime No.158 of 1982, under Sections 420,
218, 167 IPC, Police Station Mauranipur,
District Jhansi. Soon after registration of
the crime, the Police, on the basis of the
FIR, held inquiry and finding substance
therein,
arrested
the
defendant.
The
defendant was produced before the Judicial
Magistrate, Mau Garautha, where the case
is pending. The sale deed was impugned as
one secured by the defendant capitalizing
on
the
plaintiff's
helplessness
and
practicing fraud, which is not binding upon
her.

6. The plaintiff asserted that she
continues to be in cultivatory possession of
the suit property and the defendant has no
connection therewith. The plaintiff never
delivered possession of the suit property
pursuant to the impugned sale deed. The
sale deed was sham and would not affect
the plaintiff's rights in future. It was also
averred that the cause of action had arisen
so that in future, the bogus sale deed may
not be misutilized by the defendant to
adversely affect the plaintiff's rights to the
suit property. It is on the foundation of the
aforesaid facts that the suit was instituted,
seeking cancellation of the impugned sale
deed dated 11.10.1982.

7. A written statement was filed on
behalf of the defendant generally denying
the plaint allegation. In the additional pleas,
it was averred that the suit has been
brought on incorrect facts to harass the
defendant. According to the defendant, the
plaintiff's case, that it had been compacted
between parties that the entire agreed sale
consideration of Rs.7000/- would be paid at
the time of registration of the deed before
the Sub-Registrar, is incorrect. Instead, the
parties had bargained a sale of the suit
property comprising the plaintiff's share in
the plots, admeasuring a total of 2.13 acres
for a sum of Rs.7000/-. At the time when
the parties bargained, the defendant paid
the plaintiff a sum of Rs.6000/- in earnest,
leaving the balance of the agreed sale
consideration in the sum of Rs.1000/- to be
paid before the Sub-Registrar, when the
document duly executed was presented for
registration.

8. It is also averred that since the sale
deed was to be executed within two days of
the aforesaid bargain, neither the bargain
was reduced to writing in the form of a
contract nor the payment of earnest made
through a written document/ receipt. The
scribe, Laxmi Prasad was chosen by the
plaintiff herself and it was upon her
instructions that he scribed the sale deed. It
was denied that she demanded, at the time
of execution of the sale deed, the sum of
Rs.7000/-, or that the defendant said in
answer to her demand that he would pay
the entire sum before the Sub-Registrar. No
question arose of paying the sum of
Rs.7000/-
before
the
Sub-Registrar,
because the plaintiff had already received,
out of the agreed sale consideration, a sum
of Rs.6000/- as earnest with a balance of
Rs.1000/- only to be paid before the SubRegistrar at the time of registration of the
document. It is for the said reason that
before the Sub-Registrar, Mauranipur, the
plaintiff accepted the sum of Rs.1000/-
willingly and got the sale deed dated
11.10.1982 registered, followed by delivery
of possession of the suit property to the
defendant.

9. The plaintiff's case that she is still
in bhumidhari possession of the suit
property on the spot is based on falsehood
914 INDIAN LAW REPORTS ALLAHABAD SERIES
and concoction. Since the date of the sale
deed, it is the defendant, who is in
cultivatory possession of the suit property.
He has given the suit property on a crop
sharing basis and irrigating the fields,
utilizing the Kachner Minor Canal. The
defendant has irrigation slips indicating
payment of the irrigation charges. Further
in the defendant's written statement, the
plaintiff's case of a collusion between the
plaintiff's deed writer, the witnesses and the
Sub-Registrar has been denied as also the
case that they forced the plaintiff to thumb
mark the document. It is also pleaded that
the plaintiff's case that when she asked the
Sub-Registrar
that
the
defendant
be
required to pay the sale consideration of
Rs.7000/-, the Sub-Registrar assured that
the defendant is shortly paying her, is
incorrect. There was no occasion for the
payment of a sum of Rs.7000/- before the
Sub-Registrar, because the plaintiff had
already received a sum of Rs.6000/- in
earnest, leaving a balance of Rs.1000/-
alone to be paid. It is the balance that was
paid before the Sub-Registrar, which the
plaintiff accepted willingly.

10. It is also denied that the defendant
got the plaintiff to thumb mark the sale
deed forcibly in collusion with the SubRegistrar. The Sub-Registrar, according to
the defendant, read out the contents of the
sale deed, in the presence of the witnesses,
to the plaintiff and also made her
understand it. After understanding the
contents of the document, she put her mark
to it for the purpose of registration. It is
averred that the Sub-Registrar asked the
plaintiff if she had received a sum of
Rs.6000/- as earnest, to which the plaintiff
said that she had received Rs.6000/- and
now Rs.1000/- were due. The defendant
paid before the Sub-Registrar a sum of
Rs.1000/- to the plaintiff. After receiving
the balance of Rs.1000/-, the plaintiff put
her mark to the document. It has been
denied that the plaintiff ever demanded a
sum of Rs.7000/- before the Sub-Registrar
or that all of them laughed off the demand,
the
fraud
being
perfected
through
registration of the deed.

11. It is pleaded in Paragraph No.19
of the written statement that the plaintiff
has reported the defendant to the Police on
account of some men hostile to the
defendant prompting her to do so. It is also
averred that it is incorrect to say that a case
on the basis of the FIR is pending before
the Judicial Magistrate, Mau Garautha
under Sections 420, 218, 167 of the Penal
Code. No prosecution was ever launched
against the defendant on the basis of the
plaintiff's report, because the defendant
never defrauded the plaintiff. It is also the
defendant's case that the plaintiff's assertion
that she is in possession of the suit property
is incorrect. Rather, the defendant is in
possession thereof since the date the sale
deed was executed in his favour. The
defendant employs labourers to carry on
farming on the suit property. The plaintiff
has no connection with the suit property
any longer. The defendant also said that the
suit is undervalued and the court-fee paid
insufficient, because the suit is one for
cancellation, where the suit should have
been valued at the market value of the suit
property and the court-fee paid ad valorem.

12. The defendant applied for
mutation on the basis of the sale deed, but
the plaintiff, out of ill-motive, objected to
the mutation and the matter is currently
pending before the Settlement Officer of
Consolidation, Jhansi. There is a specific
plea in Paragraph No.23 of the written
statement to the effect that before the sale
deed was executed, the plaintiff took
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
915
permission of the Consolidation Officer
and then proceeded to execute the sale
deed,
accepting
the
settled
sale
consideration. It is on these pleas that the
defendant said that the suit ought to be
dismissed with special cost.

13. Based on the pleadings of parties,
the following issues were struck (translated
from Hindi to English):

"1. Whether the defendant got the sale
deed, relating to the land in dispute,
executed by the plaintiff on the basis of
deceit, without paying her the agreed sale
consideration? If yes, its effect?

2. Whether the sale deed executed in
favour of the defendant is valid?

3.
Whether
the
plaintiff
is
in
possession over the land in dispute?

4.
Whether
the
plaintiff
has
undervalued the suit and the court-fee paid
is insufficient?

5. To what relief is the plaintiff
entitled?"

14. Issue No.4 was decided as a
preliminary in terms of the order dated
02.07.1985, which was made part of the
judgment. Apparently, there is no issue
about undervaluation or insufficiency of
court-fee decided against the plaintiff. The
Trial Court took up Issues Nos.1 and 2
together and upon an appraisal of the entire
evidence
on
record,
meticulously
considering the testimony of witnesses and
the documentary evidence, including the
sale deed and the Registrar's endorsement
thereon, held on both issues against the
plaintiff and in favour of the defendant.
Issue No.3 was also answered in favour of
the defendant and against the plaintiff. In
consequence of the findings on Issues
Nos.1, 2 and 3, Issue No.5 was answered in
favour of the defendant and against the
plaintiff. The result was that the suit was
ordered to be dismissed with costs by the
learned Trial Judge vide judgment and
decree dated 02.09.1994.

15. The plaintiff appealed the decree
to the District Judge of Jhansi vide Civil
Appeal No.134 of 1994. The appeal upon
assignment came up for hearing before the
Second Additional District Judge, Jhansi on
18.12.1997. The learned Judge allowed the
appeal, set aside the decree of the Trial
Court, which he reversed and decreed the
suit, ordering cancellation of the impugned
sale deed. An intimation of the cancellation
was directed to be sent to the Sub-Registrar
for necessary action.

16. Aggrieved, the defendant has
appealed to this Court under Section 100 of
the Code of Civil Procedure, 1908.

17. The appeal was entertained by this
Court vide order dated 19.03.1998. It was
not admitted to hearing, but notice pending
admission was issued and the lower court
records summoned. An interim injunction
was granted, directing parties to maintain
status quo with regard to possession,
condition and nature of the suit property.
Much later, when the appeal came up for
admission on 21.04.2022, it was admitted
to hearing on the following substantial
questions of law:

(1) Whether on a case that the price set
forth in a registered sale deed has not been
paid to the vendor by the vendee, a decree
for cancellation can be passed?

(2) Whether a case for cancellation,
not being made out on account of unpaid
price stated to be paid in the sale deed, but
proved not to be paid, entitles the Court to
pass a decree for recovery of the unpaid
price?
916 INDIAN LAW REPORTS ALLAHABAD SERIES

18.
The
appeal
was
heard
on
27.04.2022 and judgment reserved.

19. This Court felt that there was
some clarification required with regard to
the testimony of DW-3 that the Lower
Appellate Court had omitted to consider as
non-existent. The appeal was, therefore,
posted for further hearing and the following
substantial question of law considered
imperative was formulated vide order dated
24.11.2022:

(3) Whether the Appellate Court has set
aside the findings recorded by the Trial
Court upon consideration of the evidence
on record, while writing a judgment of
reversal?

20. The appeal was again heard on
24.11.2022 and judgment reserved.

21. Heard Mr. M.S. Pipersenia,
learned Counsel for the defendant and Mr.
A.D. Saundars, learned Counsel appearing
for the plaintiff.

22. It would be convenient to answer
Substantial Questions of Law Nos.1 and 2
together, as the proposition involved in the
first, if answered one way, would lead to
the other not requiring consideration at all.

23. Mr. M.S. Pipersenia, learned
Counsel for the defendant submits that the
effect of non-payment of consideration set
out in the sale deed does not render the
transaction void, but, if proven to be indeed
not paid to the vendor, would at best entitle
him to recovery of price - the whole if
unpaid, or a part thereof, that remains
unpaid. In support of his submission, Mr.
Pipersenia has placed reliance upon the
decisions
of
the Supreme
Court
in
Vidhyadhar v. Manikrao and another,
(1999) 3 SCC 573 and Dahiben v.
Arvindbhai Kalyanji Bhanusali (Gajra)
Dead through Legal Representatives and
others, (2020) 7 SCC 366. He has invited
the attention of the Court to the provisions
of Sections 54, 55 and 58 of the Transfer of
Property Act, 1882 (for short, 'the Act of
1882') to advance his submission that nonpayment of price, even if proved, does not
lead to avoidance of the conveyance. It
may entitle the plaintiff to sue for price and
recover it.

24. Mr. A.D. Saundars, learned
Counsel for the plaintiff, on the other hand,
says that the price set forth in the sale deed
constitutes
the
consideration
for
the
underlying contract, to which the sale deed
is a super-added conveyance. He submits
that if payment of price is postponed to a
future date, the sale deed would be valid,
but if it is shown in the deed to be paid in
presenti but not actually paid, the deed
would be void. In support of this
submission, Mr. Saundars placed reliance
upon the authority of the Supreme Court in
Kewal Krishan v. Rajesh Kumar, AIR
2022 SC 564.

25. This Court has keenly considered the
submissions advanced by learned Counsel on
both sides and perused the record.

26. For the purpose of answering the
first substantial question of law, this Court
assumes that the finding of fact returned by
the Lower Appellate Court to the effect that
out of the agreed sale consideration of
Rs.7000/-, Rs.1000/- alone was paid by the
defendant is correct. Section 54 of the Act
of 1882, which occurs in Chapter III
providing for sales of immovable property,
defines 'Sale' as follows:
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
917

"54. "Sale" defined.-"Sale" is a
transfer of ownership in exchange for a
price paid or promised or part-paid and
part-promised.

Sale how made.-Such transfer, in
the case of tangible immovable property of
the value of one hundred rupees and
upwards, or in the case of a reversion or
other intangible thing, can be made only by
a registered instrument.

In the case of tangible immovable
property of a value less than one hundred
rupees, such transfer may be made either
by a registered instrument or by delivery of
the property.

Delivery
of
tangible
immovable
property takes place when the seller places
the buyer, or such person as he directs, in
possession of the property.

Contract for sale.-A contract for the
sale of immovable property is a contract
that a sale of such property shall take place
on terms settled between the parties.

It does not, of itself, create any interest
in or charge on such property."

27. Section 55 of the Act of 1882 lays
down the rights and liabilities of the buyers
and the sellers. In that context, Section
55(4)(b) is relevant. Quoted meaningfully,
Section 55(4)(b) provides:

"55. Rights and liabilities of buyer and
seller.-In the absence of a contract to the
contrary, the buyer and the seller of
immovable
property
respectively
are
subject to the liabilities, and have the
rights, mentioned in the rules next
following, or such of them as are applicable
to the property sold:

(1) x x x

(2) x x x

(3) x x x

(4) The seller is entitled-

(a) x x x

(b) where the ownership of the
property has passed to the buyer before
payment of the whole of the purchasemoney, to a charge upon the property in the
hands of the buyer, any transferee without
consideration or any transferee with notice
of the non-payment, for the amount of the
purchase-money, or any part thereof
remaining unpaid, and for interest on such
amount or part from the date on which
possession has been delivered.

(5) x x x

(6) x x x"

28.

This
question
fell
for
consideration before the Supreme Court in
Vidhyadhar (supra). It arose out of a suit
for redemption of mortgage by conditional
sale or in the alternate, a decree for specific
performance of contract for repurchase.
The suit was decreed by the Trial Court and
the decree was upheld by the Lower
Appellate Court. The High Court, however,
set aside the decree. The issue in the case
appeared to be between the plaintiff and
defendant No.1 to the suit, the said
defendant contesting the suit with a case
that the document in his favour was not a
mortgage by conditional sale, but a sale and
since the amount of consideration had not
been tendered within time stipulated, the
plaintiff could not claim re-conveyance of
the property. On facts, the suit property,
that was land, appeared to have been
mortgaged
by
defendant
No.2
with
defendant No.1 for Rs.1500/-. Defendant
No.2 had transferred the property in favour
of the plaintiff for a sum of Rs.5000/- by a
registered sale deed, entitling the plaintiff
to exercise his equity of redemption against
defendant No.1. The suit for redemption
was decreed in favour of the plaintiff upon
payment in Court of the sum of Rs.1500/-
together with all interest accrued. The
decree carried all necessary directions, such
918 INDIAN LAW REPORTS ALLAHABAD SERIES
as the defendant being required to bring
into Court all documents in his possession
or power relating to the suit property and
delivering those documents to the plaintiff.
There were other directions for reconveyance of the suit property issued to
defendant No.1 and delivery of possession
etc. The decree aforesaid was affirmed in
appeal. In second appeal, the High Court
was, however, of opinion that out of the
sum of Rs.5000/-, for which the sale deed was
executed, a sum of Rs.500/- alone was paid by
the plaintiff, apparently to defendant No.2
before the Sub-Registrar and the rest was not
paid. The High Court also held that the
document that was executed by defendant No.2
in
favour
of
defendant
No.1
was
a
'kararkharedi'. It was executed for the sum of
Rs.1500/- by defendant No.2 in favour of
defendant No.1. But in fact, it was a sum of
Rs.800/-, that was paid before the SubRegistrar. The High Court, therefore, interfered
with the decree directing that the land in suit
shall be restored to defendant No.2, who shall
pay back a sum of Rs.800/- in installments to
defendant No.1 and a sum of Rs.500/- in
installments to the plaintiff. On appeal by
special leave carried by the plaintiff to their
Lordships of the Supreme Court, it was held:

"35. Even if the findings recorded by
the High Court that the plaintiff had paid
only Rs 500 to Defendant 2 as sale
consideration and the remaining amount of
Rs 4500 which was shown to have been
paid before the execution of the deed was,
in fact, not paid, the sale deed would not,
for that reason, become invalid on account
of the provisions contained in Section 54 of
the Transfer of Property Act, 1882 which
provide as under:

"54. 'Sale' is a transfer of ownership
in exchange for a price paid or promised or
part-paid and part-promised.

Such transfer, in the case of tangible
immovable property of the value of one
hundred rupees and upwards, or in the case
of a reversion or other intangible thing, can
be made only by a registered instrument.

In the case of tangible immovable
property, of a value less than one hundred
rupees, such transfer may be made either
by a registered instrument or by delivery of
the property.

Delivery
of
tangible
immovable
property takes place when the seller places
the buyer, or such person as he directs, in
possession of the property.

A contract for the sale of immovable
property is a contract that a sale of such
property shall take place on terms settled
between the parties.

It does not, of itself, create any interest
in or charge on such property."

36. The definition indicates that in
order to constitute a sale, there must be a
transfer of ownership from one person to
another, i.e., transfer of all rights and
interests in the properties which are possessed
by that person are transferred by him to
another person. The transferor cannot retain
any part of his interest or right in that
property or else it would not be a sale. The
definition further says that the transfer of
ownership has to be for a "price paid or
promised or part-paid and part-promised".
Price thus constitutes an essential ingredient
of the transaction of sale. The words "price
paid or promised or part-paid and partpromised" indicate that actual payment of the
whole of the price at the time of the execution
of sale deed is not a sine qua non to the
completion of the sale. Even if the whole of
the price is not paid but the document is
executed and thereafter registered, if the
property is of the value of more than Rs 100,
the sale would be complete.

37. There is a catena of decisions of
various High Courts in which it has been
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
919
held that even if the whole of the price is
not paid, the transaction of sale will take
effect and the title would pass under that
transaction. To cite only a few, in Gayatri
Prasad v. Board of Revenue [1973 All LJ
412] it was held that non-payment of a
portion of the sale price would not affect
validity of sale. It was observed that partpayment of consideration by the vendee
itself proved the intention to pay the
remaining amount of the sale price. To the
same effect is the decision of the Madhya
Pradesh High Court in Sukaloo v. Punau
[AIR 1961 MP 176 : ILR 1960 MP 614] .

38. The real test is the intention of the
parties. In order to constitute a "sale", the
parties
must
intend
to
transfer
the
ownership of the property and they must
also intend that the price would be paid
either in praesenti or in future. The
intention is to be gathered from the recital
in the sale deed, the conduct of the parties
and the evidence on record.

39. Applying these principles to the
instant case, it will be seen that Defendant
2 executed a sale deed in favour of the
plaintiff, presented it for registration,
admitted its execution before the SubRegistrar before whom the remaining part
of the sale consideration was paid and,
thereafter, the document was registered.
The additional circumstances are that when
the plaintiff instituted a suit on the basis of
his title based on the aforesaid sale deed,
Defendant 2, who was the vendor, admitted
in his written statement, the whole case set
out by the plaintiff and further admitted in
the witness-box that he had executed a sale
deed in favour of the plaintiff and had also
received the full amount of consideration.
These facts clearly establish that a
complete and formidable sale deed was
executed by Defendant 2 in favour of the
plaintiff and the title in the property passed
to the plaintiff. The findings recorded by
the High Court on this question cannot,
therefore, be upheld.

40. The judgment of the High Court
on this point is also erroneous for the
reason that it totally ignored the provisions
contained in Section 55(4)(b) of the
Transfer of Property Act which are set out
below:

"55. In the absence of a contract to the
contrary, the buyer and seller of immovable
property respectively are subject to the
liabilities, and have the rights, mentioned in
the rules next following, or such of them as
are applicable to the property sold:

(1)-(3)***

(4) The seller is entitled-

(a)***

(b) where the ownership of the
property has passed to the buyer before
payment of the whole of the purchase
money, to a charge upon the property in the
hands of the buyer, any transferee without
consideration or any transferee with notice
of the non-payment, for the amount of the
purchase money, or any part thereof
remaining unpaid, and for interest on such
amount or part from the date on which
possession has been delivered.

(5)-(6)***"

41.
Clause
(b)
extracted
above
provides that where the ownership of the
property is transferred to the buyer before
payment of the whole of the sale price, the
vendor is entitled to a charge on that
property for the amount of the sale price as
also for interest thereon from the date of
delivery of possession. Originally, there
was no provision with regard to the date
from which interest would be payable on
the amount of unpaid purchase money. The
Special Committee which suggested an
amendment in this section gave the
following reason:

"This clause is also silent as to the
date from which the interest on the unpaid
920 INDIAN LAW REPORTS ALLAHABAD SERIES
purchase money should run. It seems fair
that it should run from the date when the
buyer is put in possession."

It was on the recommendation of the
Special Committee that the words "from
the date on which possession has been
delivered" were inserted into this clause by
Section 17 of the Transfer of Property
(Amendment) Act, 1929 (20 of 1929).

42. This clause obviously applies to a
situation where the ownership in the
property has passed to the buyer before the
whole of the purchase money was paid to
the seller or the vendor. What is contained
in this clause is based on the English
doctrine of equitable lien as propounded by
Baron Rolfe in Goode v. Burton [(1847) 74
RR 633 : 1 Ex 189] . This clause confers
statutory
recognition
on
the
English
doctrine of equitable lien. As pointed out
by
the
Privy
Council
in Webb
v.
Macpherson [(1903) 30 IA 238] the
statutory charge under this paragraph is
inflexible. The charge does not entitle the
seller to retain possession of the property as
against the buyer but it positively gives him
a right to enforce the charge by suit. (See :
Venkataperumal
Naidu
v.
M.
Rathnasabhapathi Chettiar [AIR 1953 Mad
821] ; Shobhalal Shyamlal Kurmi v.
Sidhelal Halkelal Bania [AIR 1939 Nag
210 : ILR 1939 Nag 636] and Basalingaya
Revanshiddappa v. Chinnava Karibasappa
[AIR 1932 Bom 247 : 34 Bom LR 427] .)

43. In view of the above, the High
Court was wholly in error in coming to the
conclusion that there was no sale as only a
sum of Rs 500 was paid to Defendant 2 and
the balance amount of Rs 4500 was not
paid. Since the title in the property had
already passed, even if the balance amount
of sale price was not paid, the sale would
not become invalid. The property sold
would stand transferred to the buyer subject
to the statutory charge for the unpaid part
of the sale price."

29. The issue again fell for
consideration in Dahiben (supra) before
the Supreme Court, where their Lordships
taking
note
of
earlier
decision
in
Vidhyadhar held:

"29.8. In Vidhyadhar v. Manikrao
[Vidhyadhar v. Manikrao, (1999) 3 SCC
573] this Court held that the words "price
paid or promised or part-paid and partpromised" indicates that actual payment of
the whole of the price at the time of the
execution of the sale deed is not a sine qua
non for completion of the sale. Even if the
whole of the price is not paid, but the
document is executed, and thereafter
registered, the sale would be complete, and
the title would pass on to the transferee
under the transaction. The non-payment of
a part of the sale price would not affect the
validity of the sale. Once the title in the
property has already passed, even if the
balance sale consideration is not paid, the
sale could not be invalidated on this
ground. In order to constitute a "sale", the
parties
must
intend
to
transfer
the
ownership
of
the
property,
on
the
agreement to pay the price either in
praesenti, or in future. The intention is to be
gathered from the recitals of the sale deed,
the conduct of the parties, and the evidence
on record.

29.9. In view of the law laid down by
this Court, even if the averments of the
plaintiffs are taken to be true, that the entire
sale consideration had not in fact been paid,
it could not be a ground for cancellation of
the sale deed. The plaintiffs may have other
remedies in law for recovery of the balance
consideration, but could not be granted the
relief of cancellation of the registered sale
deed. We find that the suit filed by the
7 All. Munni Lal Vs. Mohd. Rafik Kidwai & Anr.
921
plaintiffs is vexatious, meritless, and does
not disclose a right to sue. The plaint is
liable to be rejected under Order 7 Rule
11(a)."

30. Following the line of reasoning in
Dahiben and referring to an old decision of
our Court in Baijnath Singh v. Paltu,
(1908) ILR 30, Allahbad 125, besides the
authority of the Bombay High Court in
Chandrashankar Manishankar v. Abhla
Mathura and others, AIR 1952 Bombay
56, the decision of the Madhya Pradesh
High Court in Sukaloo and another v.
Punau, AIR 1961 MP 176 and the decision
of the Supreme Court in Kaliaperumal v.
Rajagopal and another, (2009) 4 SCC
193, it was held by this Court in Raj Dutt
and others v. Nageshwar and others,
2019 (9) ADJ 252:

"38. In the case of 'Baijnath Singh v.
Paltu and others', (1908) ILR 30 Allahabad
125, Division Bench of this Court observed
that if the sale-deed recites that the sale
consideration was paid but it is found by
the Court that no sale consideration passed,
the non-payment of purchase money does
not prevent the passing of the ownership of
purchased property from the vendor to the
purchaser
and
the
purchaser,
notwithstanding such non-payment, can
maintain a suit for possession of the
property.

39. In another case 'Chandrashankar
Manishankar v. Abhla Mathur and others',
AIR (39) 1952 Bombay 56, it was held that
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. it was also held that 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 nonpayment of the consideration.