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Judgment
This appeal under Section 96 of the C.P.C has been filed to challenge the judgment dated 26.08.1995 passed by III A.D.J, Chhindwara in Civil
Suit No. 31A/88 wherein the suit for declaration, possession and mense profit has been dismissed.
The respondents failed to mark appearance despite service as mentioned in the order dated 13.09.2017 and despite warning on 18.09.2017,
none appeared on behalf of the respondents.
It is not disputed that the respondent/defendant Nos. 1 and 2 are the nephews (sons of brother Shankar) of the original plaintiff (father of the
appellants). Respondent Nos. 3, 4 are the daughter and son of late Sabooti Bai who was the sister of the original plaintiff- late Tara. Hence, are
the nephew and niece of original plaintiff- Tara. The sole owner of the disputed property agricultural land and house belonged to plaintiff- Tara.
Tara executed a sale/gift deed on 25.03.1957 in favour of defendant No. 1 and his father Shankar and transferred the properties with the condition
that they will maintain Tara till his death. A condition was also imposed that if Shankar and defendant/respondent No. 1 failed to maintain Tara, he
will have the right to re-possess and regain the property. On the basis of allegations that Shankar and defendant/respondent No. 1 failed to
maintain Tara, Civil Suit No. 9/60 was filed before the Civil Court, Chhindwara wherein the decree was passed in favour of Tara. Subsequent
thereto, the said property was again transferred to Sabooti Bai, the ancestor of respondent/defendant No. 3, 4 wherein same conditions were
imposed. An agreement Ex. P/4 was also executed and the possession was given to her. Sabooti Bai passed away on 03.10.1966. The appellant
was then mutated in the name of respondent/defendant Nos. 3, 4. Respondent Nos. 3, 4 transferred the said property to respondent Nos. 1, 2 on
31.10.1967 and handed over the possession of the disputed property. Respondent Nos. 1, 2 continued their possession. Respondent Nos. 1, 2
executed an agreement on 31.10.1967 with undertaking to maintain Tara till his life.
Tara alleging that he has not been maintained by respondent Nos. 1, 2 filed a complaint before the Nyay Panchayat, Chaniyakala, which was
registered as Complaint No. 6/75. On the basis of an agreement dated 15.05.75 marked as Ex. P/6, award was pronounced in which the Nyay
Panchayat directed the respondent Nos. 1, 2 to maintain Tara in future and also ordered to provide the agricultural yield and a definite amount,
every year till Tara remains alive. It was also ordered to perform the after death rituals etc and bear the expenses of the cremation and after death
rituals. After this award, respondent Nos. 1, 2 provided some of the portion of the agricultural yield and the maintenance amount for some time.
During the life time of Tara, he filed civil suit alleging that the respondent Nos. 1, 2 failed to maintain him. Respondent Nos. 3, 4 without any
consideration transferred the suit property in favour of the respondent Nos. 1, 2. Therefore, he sought the relief of declaring the sale deed dated
31.10.1967 executed by respondent Nos. 3, 4 in favour of respondent Nos. 1, 2 as null and void, for possession of the suit property and for
mesne profit. This civil suit was decreed by 1st A.D.J, Chhindwara in favour of Tara, the original plaintiff on the ground that the suit property
belong to Tara and respondent Nos. 3, 4 had no right to execute the sale deed. The sale deed dated 11.08.1965 and 31.10.1967 were declared
null and void. Subsequent thereto, the respondent Nos. 1, 2 filed First Appeal No. 181/1981 before the High Court wherein it was held that the
judgment impugned was set aside and the case was remitted back to the Court below to decide it afresh after permitting the parties all
opportunities to file documents and to adduce evidence in support of the agreement respectively pleaded by them. The document filed there in the
appeal were taken on record and the application filed by the appellants (respondents in the present case) under Order 41 Rule 27 of the C.P.C
was also allowed. It was observed that the entire case of plaintiff is based on that agreement, which was executed by the appellants (respondents
in the present case) was earlier not filed. Therefore, the same was allowed.
Subsequent thereto, the Civil Suit No. 31A/1988 was restored to its original number and the learned trial Court pronounced the judgment on
26.08.1995 and dismissed the civil suit.
The documents of the Panchayat was taken on record and, subsequently, evidence was led. No doubt Tara had again executed a compromise
letter before the Nyay Panchayat but after the compromise, respondent Nos. 1, 2 provided maintenance for some time and then again stopped
maintaining Tara, which was a condition precedent. After the death of Tara, the present appellants have been brought on record as the LRs on the
basis of a ""will."" The contention that after the death of Tara, the suit does not survive, does not hold good.
It is an admitted fact that the suit property was sold to the defendant Nos. 1, 2 conditionally and it was regained in Civil Suit No. 9A/60.
However, the property was again transferred to respondent Nos. 3, 4 by agreement dated 11.08.1965 and also the document Ex. P/4 with the
condition that the respondent Nos. 3, 4 will maintain Tara, the sole owner of the suit property.
Without the consent of Tara, the sole owner of the suit property, the said property was alienated to respondent/defendant Nos. 1, 2 by (Ex.
P/3) sale deed dated 31.10.1967. Respondent Nos. 3, 4 had alienated the suit property without the consent of Tara whereas Tara had a vested
interest property for it was a conditional sale.
As regarding the proceeding before the Nyay Panchayat, Chaniyakala, it would be appropriate to say that the Nyay Panchayat had no
authority to decide a suit valued more than Rs.100/-, even if it is presumed that Tara had entered into compromise before the Nyay Panchayat but
the respondents failed to honour this compromise. Therefore, the respondents now cannot claim that Tara had waived is rights while entering into
the compromise. It is not disputed that Tara had bequeathed the suit property in the name of the appellants by executing a will. Hence, the
appellants have right to pursue the proceeding.
It is an admitted fact that the transfer of the property was made without any consideration in both the sale deeds i.e. on 11.08.1965 and
31.10.1967.
Section 54 of the Transfer of Property Act deals with ""sale."" Sale is a transfer of ownership in exchange for a price paid or promised or part
paid or part promised. In the present case, one has to consider whether there was a price paid or promised by the transferee. ""Price"" has a well
definite meaning. It means money but not necessarily money handed over in current coins at the time but includes money which might be already
due or might be payable in future.
A transfer not made in exchange for a money consideration, a transfer made in pursuance of a compromise of a family dispute would not be a
sale and might be altogether outside the provisions of the Act. There being, in view of, no price paid or promised in this case, the transaction was
not a sale.
It would not be exaggerated to say that the order of the Nyay Panchayat, Chaniyakala was void ab initio. It would be appropriate to mention
here that a release of once right does not amount to a ""sale,"" so there can be no ""sale,"" once immovable property by a transaction known as
Razinama."" The real intention of the parties has to be considered. The sale was executed and registered though the sale deed recites payment of
sale price but in fact, it was not paid. The respondents have admitted that no consideration was paid.
The Court has to examine as to the intention of the parties on the basis of the evidence produced. The contesting respondents did not lead any
evidence to show that there was intention of the defendant to pay the sale price or the title should pass in the property till the sale price is paid.
The law is well settled that a registered document which is otherwise void ab initio need not be set aside. Such deed do not strip the right of the
party who is the real owner.
In these circumstances, when it is admitted that the consideration is not paid and the alleged maintenance of Tara was not performed which
was a condition for the sale, the original plaintiff Tara, therefore, entitled to declare the sale deed dated 31.10.1967 as null and void. He was
entitled to receive the possession of the suit property. No issue has been framed with regard to the mesne profit and no evidence has been led in
this regard. Therefore, no relief could have been granted in this regard.
The appeal is allowed. The judgment dated 26.08.1995 passed by III A.D.J, Chhindwara in Civil Suit No. 31A/88 is set aside. Following
relief is granted in favour of the appellants.:-
(i) The sale deed dated 31.10.1967 is declared null and void.
(ii) The appellants are entitled to the possession of the suit property.
(iii) The expenses and advocate fee of the appellants, will be borne by the respondents.
Decree be drawn accordingly.