caselaws.org

Supreme Court of India
Kewal Krishan vs Rajesh Kumar on 22 November, 2021Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6989-6992 OF 2021
[Arising out of SLP (C) Nos. 2033-2036 of 2016]

KEWAL KRISHAN …… APPELLANT

v.

RAJESH KUMAR & ORS. ETC. …… RESPONDENTS

J U D G M E N T

ABHAY S. OKA, J.

Leave granted.

FACTUAL ASPECTS

1. The appellant Kewal Krishan and his elder brother (one of the

respondents) Sudarshan Kumar acquired the properties which are the

subject matter of these appeals (for short “the suit properties”) under
Signature Not Verified

Digitally signed by

the sale deeds dated 12th August 1976 and 19th October 1976.
NEETU KHAJURIA
Date: 2021.11.22
17:01:28 IST
Reason:
2

2. The appellant Kewal Krishan executed a power of attorney in

favour of Sudarshan Kumar on 28th March 1980. Acting on the basis of

the said power of attorney, two sale deeds were executed by

Sudarshan Kumar on 10th April 1981. The first sale deed was executed

by him by which he purported to sell a part of the suit properties to his

minor sons. The sale consideration was shown as Rs.5,500/-. The

other sale deed was executed by Sudarshan Kumar in favour of his

wife in respect of remaining part of the suit properties. The

consideration shown in the sale deed was of Rs.6,875/-. The

respondents are Sudarshan Kumar, his wife and his sons.

3. Two separate suits were instituted by the appellant on 10 th May

1983. One was against Sudarshan Kumar and his two sons and the

other one was against Sudarshan Kumar and his wife. Both the suits,

as originally filed, were for injunction restraining the defendants from

interfering with the possession of the appellant and from alienating the

share of the appellant in the suit properties. In the alternative, a prayer

was made for passing a decree for possession. On 23 rd November,

1985, the plaint in both the suits was amended by incorporating the

relief of declaration that the power of attorney and sale deeds were null

and void. A prayer was also incorporated for a money decree for the
3

share of the appellant in the compensation awarded in respect of a

tube well on the suit properties.

4. Sudarshan Kumar contested the suit along with other

respondents. It is the case of Sudarshan Kumar that he was employed

in Muscat and was earning a large income. It is the further case of

Sudarshan Kumar that at the relevant time, the appellant was

unemployed. From time to time, he remitted amounts to the appellant

from his own earnings. Sudarshan Kumar had negotiated for

purchasing the suit properties. According to his case, the suit

properties were to be purchased only in his name. His contention is

that while getting the sale deeds executed on 12 th August 1976 and

19th October 1976, the appellant got his name incorporated as a

purchaser along with Sudarshan Kumar. According to the case of

Sudarshan Kumar, the appellant was a benamidar. In short, the

contention of Sudarshan Kumar is that he is the sole owner of the suit

properties. His further contention is that by writing a letter to him on

15th April 1980, the appellant accepted his sole ownership and that is

how the appellant voluntarily executed the power of attorney dated 23 rd

March 1980 which was duly registered under the Indian Registration

Act, 1908 under which Sudarshan Kumar was appointed as his
4

attorney in respect of the suit properties. Therefore, the contention of

Sudarshan Kumar is that the sale deeds are legal and valid. Apart

from these contentions on merits, it was contended by Sudarshan

Kumar that the prayers for declaration incorporated subsequently by

way of amendment in relation to the two sale deeds and the power of

attorney were barred by limitation. It was contended that even the

prayer made for grant of his share in the compensation in respect of

tube well was barred.

5. The Trial Court dismissed the suits filed by the appellant. The

Trial Court held that the suit lands were intended to be purchased only

by Sudarshan Kumar and that is how the original sale deeds were in

possession of Sudarshan Kumar. The Trial Court accepted the

contention that he was the exclusive owner and the appellant was the

benamidar. The Trial Court upheld the contention of Sudarshan Kumar

regarding legality and validity of the power of attorney and both the

sale deeds which were the subject matter of challenge. Trial Court

held that as Sudarshan Kumar was the only owner of the suit

properties, the appellant was disentitled to any relief. The Trial Court

also held that the prayer for grant of a share in compensation in
5

respect of the tube well was barred by provisions of Rule 2 of Order II

of the Code of Civil Procedure, 1908.

6. Being aggrieved by the judgment of the Trial Court, the

appellant preferred two appeals before the District Court. The appeals

were partly allowed. The District Court held that Sudarshan Kumar did

not step into witness box and except for the bald statement made by

the attorney of Sudarshan Kumar in his evidence, nothing was placed

on record to show that the entire sale consideration for acquiring suit

properties was paid by him. The District Court held that as the case

of Sudarshan Kumar was that the money was transmitted from a

foreign country to the appellant, it was easily possible for Sudarshan

Kumar to adduce documentary evidence to show that money was

transferred to the appellant as alleged in his written statement.

Therefore, the District Court accepted that both the appellant and

Sudarshan Kumar were the joint owners of the suit properties. The

District Court also held that the sons of Sudarshan Kumar and the wife

of Sudarshan Kumar had a notice that the appellant had one half

share in the suit properties as there was a recital to that effect in the

sale deeds executed by Sudarshan Kumar. It was further held that
6

Sudarshan Kumar, his sons and his wife failed to adduce any evidence

to show that the price was paid as mentioned in the impugned sale

deeds. The District Court observed that while executing the sale deed

in favour of his wife, Sudarshan Kumar described his wife as the

daughter of one Mehar Chand and that she has not been described as

his wife. The District Court held that the sale deeds dated 10 th April

1981 were without consideration. Therefore, the District Court decreed

the suit by granting joint possession by setting aside the sale deeds

dated 10th April 1981. However, the prayer for compensation in respect

of the tube well was rejected.

7. The respondents filed separate second appeals before the High

Court which have been allowed by the impugned Judgment and order.

The High Court upheld the finding of the District Court that Sudarshan

Kumar failed to adduce evidence to prove that he remitted money from

foreign country to the appellant. Therefore, the High Court held that the

appellant and Sudarshan Kumar were the joint owners of the suit

properties. The High Court held that the power of attorney was valid.

The High Court further held that the suits for declaration of invalidity of

the sale deeds were barred by limitation as the said prayers were

belatedly incorporated on 23rd November 1985. The High Court held
7

that the sale consideration mentioned in the sale deeds executed on

10th April 1981 of Rs.5,500/- and Rs.6,875/- respectively was not

exorbitant and, therefore, the amounts were not out of reach of the

sons of Sudarshan Kumar and wife of Sudarshan Kumar. As the High

Court held the appellant to be the owner of half share in the suit

properties and as the power of attorney was held to be valid, by the

impugned Judgment and order, it directed Sudarshan Kumar to pay

the share of the appellant in the consideration shown under the sale

deeds dated 10th April 1981 with 12% interest from the date of

execution of the sale deeds. The said Judgment and order has been

impugned in these appeals.

SUBMISSIONS OF THE APPELLANT

8. Shri Neeraj Kumar Jain, the learned Senior Counsel appearing

for the appellant submitted that even the High Court accepted that

there was no evidence adduced to show that the purchasers under the

sale deeds dated 10th April 1981 had paid consideration to Sudarshan

Kumar. He submitted that finding of the High Court that the

consideration amounts were not out of reach of the purchasers is
8

without any basis as it was not the case of the Sudarshan Kumar that

his wife and minor sons had any source of income at the relevant time.

9. The learned Senior Counsel further submitted that even in the

unamended plaints, there were specific assertions made that the sale

deeds were null and void as the same were without consideration. He

pointed out that the unamended plaints contained a specific contention

that the transactions of sale were sham transactions. It was

specifically pleaded that the market value of the suit properties was

more than Rs.30,000/- and there was no occasion to sell the suit

properties at the price shown in the sale deeds. He pointed out that it

was pleaded in the unamended plaints that the minor sons of

Sudarshan Kumar and his wife had no source of earning. He submitted

that as the sale deeds were without consideration, the same were void.

He pointed out that the suit for injunction was based on the title

pleaded by the appellant as a joint owner of the suit properties and

therefore, the appellant continues to be the owner of his share in the

suit properties as the sale deeds are void and sham. He urged that it

was not necessary to amend the plaint and to seek a specific

declaration regarding the invalidity of the power of attorney and sale

deeds. He pointed out that the High Court has committed a manifest
9

error while recording a finding on bar of limitation. He invited our

attention to paragraph 28 of the impugned Judgment which proceeds

on the footing that the appellant had challenged the legality and

validity of sale deeds dated 12 th March 1976 and 19th October 1976.

He urged that the specific challenge was two sale deeds dated 10 th

April 1981. He submitted that the High Court has erroneously

disturbed the decree passed by the District Court.

SUBMISSIONS OF THE RESPONDENTS

10. The learned Senior Counsel Shri Surjeet Singh representing

the respondents invited our attention to the letter dated 5 th April 1980

(Exhibit D3) addressed by the appellant to Sudarshan Kumar. He

pointed out that in the said letter, the appellant accepted that the suit

lands were purchased out of the amounts remitted by Sudarshan

Kumar and in fact, the appellant agreed to transfer the suit properties

in the name of Sudarshan Kumar. He would, therefore, submit that the

appellant has no right, title and interest in the suit properties. He

submitted that in the suits filed in May 1983, the appellant did not pray

for any declaration regarding the sale deeds and the power of attorney.

He pointed out that only in November 1985, the plaint was amended to
10

incorporate the prayers for declaration as regards the power of

attorney dated 28th March 1980 and the sale deeds dated 10 th April

1981. He would, therefore, submit that the prayers for declaration

were barred by limitation. The learned Senior Counsel submitted that

without getting a declaration regarding the invalidity or nullity of sale

deeds, the appellant cannot get any relief. He submitted that the

appellant did not discharge initial burden on him by stepping in to

witness box. He would, therefore, submit that no interference is called

for with the impugned Judgment and order.

11. After the judgment in these appeals was reserved on 11 th

November 2021, the respondents have filed written submissions on

16th November 2021 contending that the issue whether the purchasers

under the sale deeds were the bona fide purchasers was redundant.

He urged that the contention that the constituted attorney of

Sudarshan Kumar was not a competent witness was not raised by the

appellant.

CONSIDERATION OF SUBMISSIONS AND REASONS

12. We have given our careful consideration to the submissions.

The case made out by the respondents in their written statement was
11

that Sudarshan Kumar, who was employed abroad, remitted large

amounts to the appellant, his younger brother, who was unemployed at

that time. The case of the respondents was that Sudarshan Kumar

paid the entire consideration for acquiring the suit properties under the

sale deeds of 1976. The contention of the respondents is that instead

of purchasing suit properties only in the name of Sudarshan Kumar,

the appellant incorporated his name in the sale deeds along with

Sudarshan Kumar. It is an admitted position that the said Sudarshan

Kumar did not step into the witness box. Moreover, there is a finding

recorded by the District Court that no evidence was adduced by

Sudarshan Kumar to prove that certain amounts were transmitted by

him from a foreign country to the appellant. This finding has not been

disturbed by the High Court. The modified decree passed by the High

Court by the impugned Judgment and order proceeds on the basis of

the finding that the appellant and Sudarshan Kumar were the joint

owners of the suit properties as Sudarshan Kumar failed to establish

his claim that he was the sole owner of the suit properties. The

respondents have not chosen to challenge the impugned Judgment

and order and therefore, the finding that the appellant and Sudarshan

Kumar were the joint owners of the suit properties has become final.
12

Hence, reliance placed by the respondents on the letter at Exhibit D3

will not help them.

13. A copy of the unamended plaint in one of the two suits is placed

on record along with the counter affidavit. In paragraph 3 of the

unamended plaint, there is a specific pleading that both the sale deeds

of 10th April 1981 were null and void as the same were without

consideration. In the plaint, it is specifically pleaded that suit

properties which were worth more than Rs.30,000/- were shown to

have been sold at a throwaway price. The prayer for injunction was

made in the unamended plaint on the basis of the title claimed by the

appellant as a joint owner of the suit properties along with Sudarshan

Kumar.

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
13

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 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
14

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.
15

Contract for sale.—A contract for the sale
of immoveable 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.”

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.

16. Now, coming back to the case in hand, both the sale deeds

record that the consideration has been paid. That is the specific case

of the respondents. It is the specific case made out in the plaints as

originally filed that the sale deeds are void as the same are without

consideration. It is pleaded that the same are sham as the purchasers

who were minor sons and wife of Sudarshan Kumar had no earning

capacity. No evidence was adduced by Sudarshan Kumar about the
16

payment of the price mentioned in the sale deeds as well as the

earning capacity at the relevant time of his wife and minor sons.

Hence, the sale deeds will have to be held as void being executed

without consideration. Hence, the sale deeds did not affect in any

manner one half share of the appellant in the suit properties. In fact,

such a transaction made by Sudarshan Kumar of selling the suit

properties on the basis of the power of attorney of the appellant to his

own wife and minor sons is a sham transaction. Thus, the sale deeds

of 10th April 1981 will not confer any right, title and interest on

Sudarshan Kumar’s wife and children as the sale deeds will have to be

ignored being void. It was not necessary for the appellant to

specifically claim a declaration as regards the sale deeds by way of

amendment to the plaint. The reason being that there were specific

pleadings in the plaints as originally filed that the sale deeds were void.

A document which is void need not be challenged by claiming a

declaration as the said plea can be set up and proved even in

collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration

incorporated by way of an amendment does not arise at all. The
17

additional submissions made by the respondents on 16 th November

2021 have no relevance at all.

17. As no title was transferred under the said sale deeds, the

appellant continues to have undivided half share in the suit properties.

That is how the District Court passed the decree holding that the

appellant is entitled to joint possession of the suit properties along with

Sudarshan Kumar. Therefore, for the reasons recorded above, by

setting aside the impugned Judgment and order of the High Court, the

decree passed by the District Court deserves to be restored.

18. Accordingly, the appeals are allowed. The impugned Judgment

of the High Court is set aside and common judgment and order dated

21st May, 1988 passed by the Additional District Judge, Ropar, Punjab

in Civil Appeal bearing No.31/256/23.07.1986 and Civil Appeal bearing

No.34/257 /23.07.1986 is hereby restored.

19. There will be no order as to costs.

…………..…………………J
(AJAY RASTOGI)

…………..…………………J
(ABHAY S. OKA)
New Delhi;
November 22, 2021.

Comments

Leave a Reply

Sign In

Register

Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.