Smt. Basanti vs Ram Krishan and Others

Sibghat Ullah Khan, J.—At the time of hearing No. one appeared on behalf of Respondent hence only the arguments of Sri Santosh Kumar, learned Counsel for the Appellant were heard. This second appeal was admitted on 27.4.1979 on substantial question of law as stated in ground No. 1 which is quoted below:

Because the house in dispute being valued less than Rupees hundred and sold for Rs. 90/-the sale deed was not required to be registered and the courts below have manifestly erred in law in holding that the sale deed was not valid as the same was not registered.

This is Plaintiff''s second appeal who instituted O.S. No. 35 of 1970 against three persons Nathu Singh, Tejpal (husband of the Plaintiff) and Pirthi. In execution of a decree obtained by Nathu Singh against Tej Pal, house in dispute belonging to Tej Pal was auctioned and purchased by Prithi, Respondent No. 3. Auction took place on 28.10.1969. First application under Order XXI Rule 90 CPC was filed for setting aside the auction sale. The application was beyond time by one day and was rejected on the said ground and there after the sale was confirmed. Thereafter, the suit giving rise to the instant Second appeal was filed. The suit was dismissed on 15.1.1973 by IV Additional Munsif Meerut. Against the said judgment and decree civil appeal No. 134 of 1973 was filed which was dismissed on 13.3.1978 by I Additional Civil Judge Meerut hence this Second Appeal.

The case of the Plaintiff was that the house in dispute had been sold to her by her father in law, Pirthi for Rs. 90/-through unregistered sale deed dated 11.2.1958. In the said sale deed it was mentioned that Pirthi, the executant had five sons and had divided his property in 5 portions four had been given to his four sons and that the 5th son Tej Pal was having very bad habits, hence, Pirthi was residing in the house in dispute along with wife and children of Tej Pal and as Pirthi did not want to give the property to Tej Pal and he executed the sale deed in favour of Smt. Basanti wife of Tej Pal. In the sale deed it was mentioned that the property was being sold through the sale deed and was given in ownership and possession of Smt. Basanti the Plaintiff. It was an out and out sale through the said deed. It is not the case of the Plaintiff that sale had earlier taken place through delivery of possession. In her cross examination Plaintiff admitted that even at the time of sale in 1958 value of the sold property was more than Rs. 100/-.

u/s 54 of the Transfer of Property Act it is provided as under:

In the case of tangible immovable property of avalue less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property." (In U.P. since 1.1.1977 said part of Section 54 of T.P. Act has been deleted).

It is correct that in case sale of immovable property of less than Rs. 100/-has taken place through the delivery of possession then subsequent execution of unregistered sale deed will not render the said sale bad in law. However, if sale takes place through the sale deed then it shall be registered. In the instant case sale took place through the sale deed, hence, it was necessary to be registered.

Courts below have held that the judgment debtor, Tej Pal husband of the Plaintiff had earlier filed application for setting aside the action sale and he No. where stated that the property had been sold by his father to his wife. It was admitted that both husband and wife were residing together. The courts below also found that the stamp on which sale deed was written was shown to have been purchased from another Tehsil by the Plaintiff while the Plaintiff stated in her examination that she did not purchase the stamp. She also could not give any explanation as to why stamp was purchased from another Tehsil. Courts below found that father of Tej Pal had No. right to disinherit Tej Pal or sell the share of Tej Pal and in fact the sale deed of 1958 had been prepared just to deprive auction purchaser of the property in dispute and the deed was forged and antedated.

I fully agree with these findings. In any case the said findings are findings of fact. After holding that the deed was manufactured forged and antedated it is not very essential to decide as to whether it is admissible even though it was not registered. However, even this point has to be decided against the Appellant as from the reading of the sale deed it is quite clear that sale was purported to be made through the deed itself. There was No. case that the sale was made only by delivery of possession.

Accordingly, the decree passed by the courts below is confirmed. Second appeal is dismissed.