1

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

FA No. 139 of 2004

Smt.Anjana Khakha W/o Vijay Khakha Aged About 35 Years Cast - Uraon,

Resident Of Kunkuri Police Station And Tahsil Kunkuri District - Jashpur

... Appellant

versus

1- Saihin Xalxo (Died and Deleted) Through Lrs. Nil

1.1 - (A) Lalita Xalxo Wd/o Shri Saihun Xalxo Aged About 50 Years R/o Village

Karamdeeh, Tahsil And District - Simdega, Jharkhand

1.2 - (B) Ashin Xalxo D/o Shri Saihun Xalxo Aged About 27 Years R/o Village

Karamdeeh Tahsil And District -Simdega, Jharkhand

1.3 - (C) Anjan Xalxo S/o Shri Saihun Xalxo Aged About 24 Years R/o Village

Karamdeeh Tahsil And District -Simdega, Jharkhand

1.4 - (D) Aadam Xalxo S/o Shri Saihun Xalxo Aged About 22 Years R/o Village

Karamdeeh Tahsil And District -Simdega, Jharkhand

2 - Prabhudas Xalxo S/o Powel Xalxo Aged About 40 Years Caste Uraon,

Resident Of Village Karamdeeh Tahsil Simdega Jharkhand

3 - Deepshikha Xaxa Aged About 44 Years D/o Peska Xaxa (Adopted

Daughter Of Manohar Xalxo), W/o Akash Xaxo, R/o - Bethesada Compound,

G.E.L. Graveyard, G.E.L. Church, Ranchi, G.P.O. Jharkhand, 834001. Presently

Residing At Village - Kunkuri (Opposite Girls School - Tapkra Road) Tahsil And

P.S. - Kunkuri, District - Jashpur, C.G.

... Respondent(s)

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For Appellant : Mr. Manoj Paranjpe, Senior Advocate

assisted by Ms. Shivangi Agrawal & Ms.

Pranoti Das, Advocates

For Respondent(s) No.3 : Mr. Hemant Gupta, Advocate

Date of Hearing : 04.12.2025

Date of Judgment : 07.01.2026

Hon’ble Shri Justice Rakesh Mohan Pandey

C A V Judgment

1.This appeal has been preferred by the defendant/appellant assailing

the validity and propriety of the judgment and decree dated 06.05.2004

passed by the II

nd

Additional District Judge (F.T.C.) in Civil Suit No. 5A of

2003, whereby the suit filed by the plaintiffs was decreed.

2.The original plaintiff, namely Manohar Xalxo filed a suit against the sole

defendant to declare the sale deed dated 25.05.2000 as null and void

on the ground that the sale deed was executed in favour of the

defendant, as a compromise was made that the defendant had agreed

to take care of the original plaintiff till his death. The suit property is the

land bearing Survey Nos. 476/13 and 476/14, and the house situated

over it. The property is situated at Village Kunkuri, P.H.No.7, District

Jashpur.

3.The original plaintiff was issue-less, and the defendant was brought up

in his custody, and her marriage was performed by the original plaintiff.

It is pleaded that the defendant allured the original plaintiff and

therefore the sale deed was executed. The plaintiff pleaded that he

remained in possession of the property till the finalization of the suit.

Allegations of fraud were also made. The plaintiff pleaded that the

witnesses to the sale deed were Dilip Jain, son of Jagmohan Jain, and

Philmon Khakha. Dilip Jain was a tenant of the plaintiff and he wanted

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to purchase the suit house and at his instance, the defendant

purchased the property.

4.The defendant filed a written statement and denied the averments

made in the plaint. It was pleaded that the registered sale deed was

executed on 25.05.2000 in the presence of witnesses after payment of

the consideration of 80,000. She pleaded that possession was handed

₹

over to her, and after the death of the original plaintiff, he was no

longer the owner of the property. She further pleaded that she was

employed and used to take care of the original plaintiff and his wife,

and used to visit them frequently. It was also stated that the original

plaintiff was issue-less and a registered sale deed was executed in

favour of the defendant in the presence of two witnesses.

5.The trial court framed issues, parties adduced evidence, and thereafter

the judgment and decree were passed.

6.The original plaintiff Manohar Xalxo died on 15.01.2002, and one Paval

Xalxo moved an application for his impleadment as the plaintiff, being

the legal representative of the original plaintiff. He pleaded that the late

Manohar Xalxo had adopted one Deepshikha on 20.06.1982, and an

adoption deed was executed on 31.03.1997. During the pendency of

the suit, Paval Xalxo also died. Saihun Xalxo and Prabhudas Xalxo were

impleaded as the legal representatives of Paval Xalxo.

7.An application was moved by Deepshikha under Order I Rule 10 CPC

stating that she was adopted by late Manohar Xalxo on 20.06.1982 and

a registered adoption deed was executed on 21.03.1997. It was also

pleaded that she was staying at her matrimonial home; therefore, she

could not move the application earlier for impleadment. It was pleaded

that she be impleaded as a defendant by the appellant herein in Civil

Suit No. 5A/2003 as a legal representative of the late Manohar Xalxo.

The said application was allowed vide order dated 19.11.2025.

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8.Despite the service of notice, there is no representation on behalf of

the legal representatives of Saihun Xalxo and Prabhudas Xalxo. This

appeal is being contested by the newly added respondent, Deepshikha.

9.The plaintiff exhibited:-

Exhibit P-1: certified copy of the sale deed dated 25.05.2000;

Exhibits P-2 & P-3: maps of the suit property; &

Exhibits P-4, P-5 & P-6: revenue records of 2000–2002

10.No documents were produced by the defendants.

11.The plaintiff examined: Saihun Xalxo (PW-1), Jyoti Prakash Minz (PW-2),

Jeevan Das (PW-3) and Elias Ekka (PW-4); whereas the defendant

examined herself as DW-1, Philmon Khakha as DW-2, and Dilip Jain as

DW-3.

12.The learned trial Court held that the defendant was not residing in the

suit house on rent; rather, she was residing along with the original

plaintiff Manohar Xalxo. It was further held that the defendant failed to

prove the fact that she was staying separately from Manohar Xalxo,

since she was about 13 years old; therefore, the trial court held that the

original plaintiff managed the expenses of the defendant. It was also

held that the expenses of the defendant’s marriage were borne by the

plaintiff.

13.The trial court held that there was no financial need for the original

plaintiff to execute the alleged sale deed dated 25.05.2000 in favour of

the defendant. The defendant failed to prove possession over the

property. The valuation of the suit property is mentioned as 2,14,000,

₹

and there was no reason for the original plaintiff to sell it for only

80,000. The defendant failed to establish that the consideration

₹

amount of 80,000 was paid by her, and no document was produced to

₹

prove this fact.

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14.Mr. Manoj Paranjpe, learned Senior Advocate appearing for

defendant/appellant, would argue that the trial court has decreed the

suit filed by the plaintiff on the ground that the sale deed dated

25.05.2000 was a sham sale deed executed on account of love and

affection by the original plaintiff in favour of the defendant, and the

sale consideration was never passed to the original plaintiff. He would

contend that if the sale consideration was not passed to the original

plaintiff, the plaintiff should have filed a suit for recovery. He would

further contend that intention is to be gathered from the recital of the

sale deed to conclude whether the sale deed was an outright sale or a

sham sale.

15.It is further argued that attesting witnesses, namely Dilip Jain and

Philmon Khakha, have proved the due execution of the sale deed;

therefore, the findings recorded by the learned trial court regarding the

execution of the sale deed are not sustainable. In this regard, reliance

has been placed upon the judgment passed by the High Court of

Chhattisgarh in Mohammad Ashif Memon v. Noor Begum & Anr.,

2024 SCC OnLine CHH 4863.

16.Mr. Paranjpe would also argue that a document affecting sale must

contain a stipulation to the effect that the sale deed was executed out

of love and affection, with an obligation that the defendant would take

care of the original plaintiff till his death; otherwise, such a sale deed

would become inoperative. He would contend that in the absence of

any such recital, it cannot be presumed that the sale deed was a sham

sale. He has placed reliance on the judgment passed in Jaswant Singh

(Dead) through Lrs v. Tijiya Bai (Dead) through Lrs passed in

Second Appeal No. 350/2003.

17.He would also contend that the registered sale deed executed by the

original plaintiff in favour of the defendant is presumed to be genuine

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if the same is registered. He would contend that the burden is on the

plaintiff to prove the contrary. In this regard, he has placed reliance on

the matter of Rattan Singh and others v. Nirmal Gill and others,

(2021) 15 SCC 300. He would also submit that the trial court wrongly

shifted the burden of proof on the defendant. He would contend that

the plaintiff(s) cannot take the benefit of the weakness of the

defendant. It is also argued that even if the defendant enjoyed the

acting confidence of the original plaintiff, thereafter, the sale deed was

executed in her favour; in such a situation, the plaintiff failed to prove

the misuse of trust. The learned trial Court was under an obligation to

read the contents of the sale deed in its entirety, as the intention of the

parties can be gathered from the language used therein. In this regard,

he has placed reliance on the matter of Prakash (dead) by Lrs v. G.

Aradhya& Ors., 2023 LiveLaw (SC) 685.

18.On the other hand, Mr. Hemant Gupta, learned counsel for the plaintiff,

would oppose the submissions made by Mr. Paranjpe and argue that

the sale deed was executed by the original plaintiff in favour of the

defendant out of love and affection on the condition that she would

maintain him till his death. He submitted that the defendant failed to

honour her promise and therefore the suit was filed by the original

plaintiff seeking a declaration that the sale deed dated 25.05.2000 was

void.

19.He argued that the defendant could not adduce evidence to establish

that she had sufficient funds to purchase the property. An application

under Order XI Rule 12 read with Section 151 CPC was moved by the

plaintiff to direct the defendant to produce documents to establish the

withdrawal of 80,000 from her bank account, but she failed to do so. It

₹

is argued that since the defendant failed to prove the payment of the

sale consideration, the sale deed is null and void. It is also submitted

that the plaintiff exhibited only the certified copy of the sale deed as

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Exhibit P-1 and did not possess the original sale deed; if it was

executed in favour of the defendant, she should have been in

possession of the original sale deed. He would further contend that the

trial court recorded categorical findings that the sale deed was

executed out of love and affection without payment of the

consideration.

20.Mr. Gupta submitted that Deepshikha is the adopted daughter of the

late Manohar Xalxo; therefore, she has the right to the property. He

would also contend that Dilip and Philmon are friends and relatives,

respectively, of the defendant, and thus, they are interested witnesses.

Reliance is placed on the matter of Kewal Krishan v. Rajesh Kumar

and other, 2022 AIR SC 564, wherein the Hon’ble Supreme Court held

that if a sale deed in respect of a memorable property is executed

without payment of price and if it does not provide for the payment of

price at a future, it is not a sale at all in the eyes of law. It is of no legal

effect; therefore, such a sale will be void. It will not affect the transfer of

the immovable property.

21.Reliance is also placed on Shanti Devi v. Jagan Devi, 2025 AIR SC

4342, and it is contended that in the absence of sale consideration, the

sale deed is void.

22.I have heard learned counsel for the parties and perused the record

with utmost circumspection.

23.The question for determination is whether the sale deed executed by

the original plaintiff, late Manohar Lal Xalxo was an outright sale deed,

or whether the sale consideration was not tendered?

24.The original plaintiff in the plaint pleaded that he was the owner of the

suit property; the defendant was like his daughter and took care of him;

he executed a registered sale deed on 25.05.2000 in her favour; and an

assurance was given by the defendant that she would not mutate her

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name in the revenue records during his lifetime. It was pleaded that

Dilip Jain instigated the defendant and extended threats on 24.02.2001.

The plaintiff in the entire plaint did not plead that the sale

consideration was not tendered. In para-6 of the plaint, he admitted

that the sale deed was registered on 25.05.2000, but stated that the

sale consideration was not tendered. In para-10, he pleaded that Dilip

Jain extended a threat to him on 24.10.2001, which is the date of

execution of the sale deed.

25.Saihul Xalxo (PW/1) admitted the fact that Manohar Xalxo died, issue

less. He further admitted that a registered sale deed was executed in

favour of the defendant on 25.05.2000. In cross-examination, he

admitted that the suit property was self-acquired property of Manohar

Xalxo. He admitted that the defendant was employed. PW-2 and PW-4

stated that the sale deed was executed out of love and affection, but

had no personal knowledge of payment or non-payment of the

consideration.

26.Jyoti Prakash Minz (PW/2) stated that there was an assurance on the

part of the defendant to maintain and take care of the original plaintiff,

and thereafter, a registered sale deed was executed. In cross-

examination, it has been admitted that Dilip Jain has constructed a

separate house.

27.Jeevan Das (PW-3), the document writer, stated that according to the

original plaintiff, the sale deed was executed on account of love and

affection, but Exhibit P-1 does not bear his signature as a deed writer.

28.DW-1 (defendant) stated that 80,000 was paid to the original plaintiff

₹

and possession was handed over. In cross-examination, she stated that

she was staying in the plaintiff’s house on rent and admitted that

Manohar was shown as her guardian in the service records. She stated

9

that the consideration was withdrawn from Punjab National Bank, but

no document was produced.

29.DW-3 Dilip stated that he was present at the time of the transaction of

80,000 to the plaintiff, and the sale deed was executed in his presence.

₹

He stated that late Manohar Xalxo was an old aged person; therefore,

he executed the sale deed on 25.05.2000 for a sale consideration of

Rs.80,000/-.

30.Philmon Xaxa stated that a registered sale deed was executed by the

original plaintiff in favour of the defendant. Manohar Xalxo was

issueless, and the defendant is his daughter-in-law. He further stated

that the sale consideration was passed in his presence.

31.Exhibit P-1 reflects that 80,000 was paid, as recited in Clause 2. Dilip

₹

Jain and Philmon were witnesses to the sale deed, and they proved the

due execution of the sale deed; the original plaintiff did not dispute the

execution of the sale deed.

32.The Hon’ble Supreme Court, in the matter of Rattan Singh (supra),

held that a registered document carries a presumption of genuineness.

Even if the burden had shifted to the defendant, the same stood

discharged through the testimony of the attesting witnesses. The

relevant paragraph No. 33 is reproduced herein below:-

“33. To appreciate the findings arrived at by the Courts

below, we must first see on whom the onus of proof lies.

The record reveals that the disputed documents are

registered. We are, therefore, guided by the settled legal

principle that a document is presumed to be genuine if

the same is registered, as held by this Court in Prem Singh

and Ors. v. Birbal and Ors. (2006) 5 SCC 353. The relevant

portion of the said decision reads as below:

“27. There is a presumption that a registered

document is validly executed. A registered

document, therefore, prima facie would be valid

in law. The onus of proof, thus, would be on a

person who leads evidence to rebut the

10

presumption. In the instant case, Respondent 1

has not been able to rebut the said

presumption.” (emphasis supplied) In view

thereof, in the present cases, the initial onus was

on the plaintiff, who had challenged the stated

registered document.”

33.With regard to proving the execution of the sale deed, the initial

burden to prove would lie upon the plaintiff, as it was a case where the

original plaintiff executed sale deed on account of love and affection.

34.If, for the sake of argument, the burden was shifted upon the

defendant, the same was duly discharged by examining witnesses to

the sale deed.

35.Para- 41 of Rattan Singh (supra), is reproduced as under:-

“41. The trial Court had justly placed the initial

burden of proof upon the plaintiff as it was her case

that the subject documents were forged or product

of fraud and moreso because the documents bore

her signature. The first appellate Court did not

elaborate on that aspect. Even assuming that the

burden had shifted upon the defendants, the witness

identifying signatures of the dead attesting witness

was examined by the defendants. Therefore, the

documents stood proved and the burden was duly

discharged by the defendants.”

36.Mr. Gupta tried to establish the fact that consideration was not

tendered by the defendant to the original plaintiff, but if that were so,

the plaintiff should have filed a suit for recovery. Further, in the

registered sale deed, there is no recital that it was executed out of love

and affection or without payment of the sale consideration.

37.In the absence of such a recital, it cannot be held that it was not an

outright sale.

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38.In the matter of Mohammad Ashif Memon (supra), the Division

Bench of the High Court of Chhattisgarh, in para 5, 6 & 16, held as

under:-

“5. (i) Learned counsel appearing for the

appellant/defendant would submit that the evidence of the

parties would show that apart from the sale consideration,

which is shown in the sale deed, considerable amount was

paid in cash by the seller to the purchaser and in respect of

the sale deed the dispute arose with respect to certain

demarcation as such the cheques were not honoured.

However, after filing of the suit he was ready and willing to

pay the entire amount. Learned counsel would place

reliance upon the decision rendered by the Supreme Court

in the matter of Dahiben v Arvindbhai Kalyanji Bhanusali

(Gajra)(2020) 7 SCC 366 and Kewal Kishan v Rajesh

Kumar 2021 SCC OnLine SC 1097 to submit that sale once

has been made and possession delivered, the intention of

the parties would be governed by the provisions of Section

54 of the Transfer of Property Act, 1882 (for short ‘the TP

Act’). Therefore, the only course would be left out to ask for

the amount.

(ii) Learned counsel would also submit that in this case, the

defendant-purchaser has categorically admitted that he is

ready and willing to pay the amount and, as such, the sale

deed cannot be declared as a nullity. Referring to the

statement of DW-1 Mohammad Arif Memon, learned

counsel would submit that categorical statement was made

that during levelling of land hefty amount was incurred by

the purchaser and after that demarcation would be carried

out and the amount would be paid. On those conditions

the sale deed was executed. He would submit that the said

statement remained unrebutted. Learned counsel would

refer to the suggestion made by the plaintiff to the

defendant wherein at para 30 it was suggested that

possession has been handed over would go to show that

the registry has been completed. Learned counsel would

submit that the trial Court has completely misdirected itself

to interpret Section 54 of the TP Act to hold that the sale

would be void as the cheques, which were paid for payment

got bounced. Therefore, the impugned judgment and

decree is liable to be set aside.

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6. (A) Learned counsel appearing for the respondent

No.1/plaintiff, ex adverso, would submit that albeit the sale

deed was registered by Ex.P/1 the recital of the same

engrafts that in case the cheques are dishonoured the sale

deed would be cancelled, therefore, if the cheques which

were tendered dishonoured which automatically would

cancel the sale deed as per the intention of the parties.

Learned counsel would place reliance upon the decision

rendered by the Supreme Court in the matter of

Kaliaperumal v Rajgopal and Another (2009) 4 SCC 193 to

submit that the recital in the sale deed would be relevant to

know the nature of the transaction. He would further

submit that the learned trial Court has rightly held that as

per the document Ex.D/11C the possession of the land is

with the seller, therefore, the sale deed though was

executed cannot be given effect.

(B) Learned counsel would also place reliance upon the

decision rendered by the Supreme Court in the matter of

Vidyadhar v Manikrao and Another (1999) 3 SCC 573 to

submit that when the possession was not handed over the

sale deed cannot be said to have been executed. Referring

to Ex.D/2 & Ex.D/6 learned counsel would submit that when

the notice was issued to the purchaser to place the

documents for expenses incurred he could not file the

same. It would go show that nothing was done by the

purchaser and false statement was made. He would submit

that the statement of purchaser in other proceeding would

show that he was apprehensive of the fact that part of land

would be acquired as such he did not deliberately pay

the amount of sale consideration and it was after exchange

of notice the seller filed the civil suit for cancellation of the

sale deed. Learned counsel would submit that the

impugned judgment and decree is well merited, which do

not call for any interference of this Court.

16. The decision rendered by the Supreme Court in the

matter of Vidyadhar (supra), relied by the plaintiff, was

considered by the Supreme Court in the matter of Dahiben

(supra) wherein it was held that the intention is to be

gathered from the recitals of the sale deed, the conduct of

the parties, and the evidence on record. Para 29.8 of the

aforesaid judgment is relevant and the same is quoted

below :

29.8 In Vidhyadhar v. Manikrao [Vidhyadhar v.

Manikrao, this Court held that the words “price

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paid or promised or part-paid and part-promised”

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.

(emphasis added)

Thus, the contention of the plaintiff that only

recitals of payment must be considered for

gathering interest of parties is not correct.”

39.In the matter of Shanti Devi (supra), the Hon’ble Supreme Court held

that since the sale deeds were executed without consideration, those

sale deeds did not affect, in any manner, the share of the appellant

therein. In the said case, the attesting witnesses to the execution of the

sale deeds were not examined. There was no witness to substantiate

the fact that there was a part payment of the sale consideration at the

time of execution of the sale deeds. The relevant paragraph No. 38 is

reproduced herein below:-

“38.Concurrent findings of both the First

Appellate Court and the High Court indicated that

the husband of the defendant i.e., one Bagdawat,

who had allegedly given the remaining sale

consideration of Rs.6,000/- during the time of

execution of the sale deed, had not stepped into

the witness box. Furthermore, one of the attesting

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witnesses to the execution of the sale deed i.e.,

the Sarpanch had also died before his deposition

could be recorded. One Budhu, who was the

second attesting witness, was the brother of the

defendant and both the Courts had doubted his

testimony as being partial to the defendant. All in

all, there was no witness who could substantiate

the case of the defendant that there was part-

payment of the sale consideration, i.e.,

Rs. 6,000/- during the time of execution of the

sale deed. Furthermore, no evidence was adduced

by the defendant to prove that even the initial

amount of Rs. 9,000/- which was purportedly paid

before the execution of the sale deed was actually

received by the plaintiff. Therefore, the averment

of the plaintiff in the plaint, that she had not

received the sale consideration, had not been

otherwise proven as false. In such circumstances

as well, i.e., in the absence of the sale

consideration being tendered, the sale deed

would be void and the plaintiff would not be

required to seek its cancellation. Therefore Article

59 of the Limitation Act, 1963 could not be said to

be applicable to the present facts.”

40.In the present case, the original plaintiff has not pleaded that the sale

consideration was not tendered to him. This issue has been raised for

the first time before this Court, and any submission beyond the

pleadings cannot be entertained. Even evidence beyond the pleadings

is not admissible; thus, the judgment cited by Mr. Gupta does not help

the case of the plaintiff in any manner.

41.It is a well-settled principle of law that if a sale deed does not contain a

stipulation converting the sale into a mortgage or conditional sale, no

contrary interpretation can be imposed.

42.The Coordinate Bench in the matter of Jaswant Singh (supra), in para-

10 & 16 held as under:-

15

“10. The effect of this proviso is that no document of

sale can be treated as mortgage unless the document

effecting the sale itself contains a recital to that effect.

The whole object is to exclude or shut out the oral

evidence to be adduced in the case when such a

condition is contained in a separate document. Thus, if

the document effecting a sale does not contain a

stipulation regarding the conversion of the sale into a

mortgage and such a stipulation is contained in a

separate document, in such a case, it is not at all open in

law to enquire into the nature of the transaction and to

take extrinsic evidence for holding that the document

which purports to be an absolute sale is in reality, a

mortgage.

16. Reverting to the facts of the present case in light of

the proviso to Section 58(c) of the Transfer of Property

Act, 1882 and in light of the principles rendered by Their

Lordships of the Supreme Court in Chunchun Jha (supra)

followed in Srinivasaiah (supra), examining Ex.D-1, it is

quite vivid that the document in question purports to be

an absolute sale, as it does not contain any stipulation

for treating the sale as mortgage. The agreement of re-

conveyance is neither embodied in a separate

document; it is said to be agreed orally and it is not

recorded in the document as such. In absence of

embodiment of such a clause in Ex.D-1, the transaction

cannot be regarded as mortgage, as no oral evidence is

admissible to contradict Ex.D-1, which is an outright sale

transferring title by the plaintiffs in favour of defendant

No.1. Therefore, the transaction in question, in absence

of embodiment as contained in the proviso to Section

58(c) of the Transfer of Property Act, 1882, cannot be

regarded as mortgage and it is held to be an outright

sale. Both the Courts below are absolutely unjustified in

holding the sale deed dated 31-12-1969 (Ex.D-1) as

mortgage in absence of incorporation in the said

document Ex.D-1 that it is a mortgage as provided in the

said proviso. As such, the finding recorded by the two

Courts below in this regard is contrary to facts and law

available on record.”

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43. The Hon’ble Supreme Court, in the matter of Prakash (dead) by LRs

v. G. Aradhya & Ors., reported in 2023 LiveLaw (SC) 685, held that

for proper appreciation of a document, its contents must be read in its

entirety, and its true nature is to be gathered from the language used

therein. The relevant paragraph No. 25 is reproduced herein below:—

“25. Similar argument, where two separate documents

were executed, came up for consideration before this

Court in Bishwanath Prasad Singh’s case (supra). One was

the Sale Deed and the second was the agreement for

sale. Both were executed on the same date. It was opined

therein that to appreciate a document its contents are to

be read in entirety and the intention of the parties is to

be gathered from the language used therein. Para 16 of

the aforesaid judgment is referred to for ready reference:

“16. A deed as is well known must be construed

having regard to the language used therein. We

have noticed hereinbefore that by reason of the

said deed of sale, the right, title and interest of the

respondents herein was conveyed absolutely in

favour of the appellant. The sale deed does not

recite any other transaction of advance of any sum

by the appellant to the respondents which was

entered into by and between the parties. In fact,

the recitals made in the sale deed categorically

show that the respondents expressed their

intention to convey the property to the appellant

herein as they had incurred debts by taking loans

from various other creditors.”

25.1. Further, in the aforesaid judgment, this

Court while interpreting the terms of the

agreement executed along with the Sale Deed and

opined that the same cannot be treated to be a

mortgage as the expression used therein were

‘vendor’, ‘vendee’, ‘sold’ and ‘consideration’. Fixed

period was granted for execution of the Sale

Deed.

25.2. The scope of Section 58(c) of the 1882 Act4

was considered in detail in paras 27 to 33 thereof

which are extracted below:

“27. A bare perusal of the said provision clearly

shows that a mortgage by conditional sale must

17

be evidenced by one document whereas a sale

with a condition of retransfer may be evidenced

by more than one document. A sale with a

condition of retransfer, is not mortgage. It is not a

partial transfer. By reason of such a transfer all

rights have been transferred reserving only a

personal right to the purchaser (sic seller), and

such a personal right would be lost, unless the

same is exercised within the stipulated time.”

44. In the matter of Kewal Krishan (supra), cited by Mr. Gupta, it has

been held that no evidence was adduced to establish the existence of

any source of income to make payment of the consideration

mentioned in the sale deed and in the absence of any such source of

income, the sale deed would be void. The relevant paragraphs Nos. 14

and 15 are reproduced herein below:—

“14. Admittedly, there is no evidence adduced on

record by Sudarshan Kumar that his minor sons had

any source of income at the relevant time and that

they paid him consideration as mentioned in the sale

deed. Similarly, no evidence was adduced to show that

Sudarshan Kumar’s wife had any source of income and

that she paid consideration mentioned in the sale

deed. An issue was specifically framed by the Trial

Court on the validity of the sale deeds. There is a

specific finding recorded by the District Court that

there was no evidence adduced to show that

Sudarshan Kumar’s wife and minor children paid

consideration as shown in the sale deeds. In fact,

before the District Court, it was pleaded that

Sudarshan Kumar’s wife had brought some money

from her parents. The District Court in paragraph 11 of

the judgment held that no evidence was adduced to

prove the said contention. Therefore, there is a

categorical finding recorded in the same paragraph by

the District Court that Sudarshan Kumar, by taking

advantage of the power of attorney, transferred the

suit lands to his own minor sons and his wife without

any consideration. The High Court has not disturbed

the finding recorded by the District Court regarding

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the failure of the respondents to adduce evidence

regarding the payment of consideration under the sale

deeds dated 10th April 1981. The High Court in

paragraph 29 merely observed that the sale

consideration of Rs.5,500/- and Rs.6,875/- was not

exorbitant and was not out of reach of Sudarshan

Kumar’s sons and wife. Perhaps, the High Court has

ignored that it was considering a case of sale deeds of

the year 1981 and that the purchasers under one of

two sale deeds were minor sons of Sudarshan Kumar

and it was not even pleaded that they had any source

of income. The same is the case with the sale deed

executed by Sudarshan Kumar in favour of his wife.

Thus, undisputed factual position is that the

respondents failed to adduce any evidence to prove

that the minor sons had any source of income and that

they had paid the consideration payable under the sale

deed. They did not adduce any evidence to show that

Sudarshan Kumar’s wife was earning anything and that

she had actually paid the consideration as mentioned

in the sale deed.

15. Section 54 of the Transfer of Property Act, 1882 (for

short “the TP Act”) reads thus:

“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 immoveable 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 immoveable 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 immoveable 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

immoveable property is a contract that a sale

19

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.”

Hence, a sale of an immovable property has to be for a

price. The price may be payable in future. It may be

partly paid and the remaining part can be made

payable in future. The payment of price is an essential

part of a sale covered by section 54 of the TP Act. If a

sale deed in respect of an immovable property is

executed without payment of price and if it does not

provide for the payment of price at a future date, it is

not a sale at all in the eyes of law. It is of no legal

effect. Therefore, such a sale will be void. It will not

effect the transfer of the immovable property.”

45.In the present case, the original plaintiff executed a sale deed in favour

of the defendant, and in the said document there is no whisper that

consideration was not tendered by the defendant; therefore, the facts

of the present case are entirely different from the facts of the cited

case. According to pleadings made in the plaint, it is not a case of

plaintiff that consideration was not tendered by the defendant.

46.Taking into consideration the above-discussed facts and law, the

question for determination is answered in favour of the appellant.

Resultantly, the appeal is allowed, and the judgment and decree

passed by the learned trial court is hereby set aside.

47.Decree be drawn accordingly.

Sd/-

Rakesh Mohan Pandey

JUDGE

Nadim