IMPORTANT POINT
Agreement to sell – When a sale deed is registered, even upon part payment of sale price, title would pass to transferee – Non-payment of remaining part of sale price would not invalidate it and remedy would be to recover balance sale consideration, but not cancellation of sale deed.

JUDGMENT

K. VINOD CHANDRAN, J.

Concurrent findings of the Trial Court and the Appellate Court were reversed by the High Court in a second appeal. The legal heirs of the original sole defendant are before us, and the respondents are the legal heirs of the original plaintiffs, a son and his mother. The plaintiffs filed a suit for declaration of two sale deeds, both dated 10.03.1975, as void and inoperative, to cancel these deeds and declare the plaintiffs as the absolute owners of the properties covered by the sale deeds. They further prayed for a permanent injunction against the sole original defendant, restraining him from interfering with the ownership and possession of the plaintiffs.

2. The plaint averments were that the two sale deeds were executed in the wake of debts accrued in the name of the plaintiffs in various financial institutions and the government departments. The original defendant came with a helping hand and agreed to find a purchaser for the property. A purchaser was brought, who left at the last minute, when the original defendant agreed to purchase their lands. The entire consideration was not available with the defendant, in which circumstances, he persuaded the plaintiffs to execute the sale deeds with respect to both the properties, handing over only part of the consideration. The total consideration for each of the properties fixed was Rs.7,000/-(Rupees Seven thousand), out of which Rs.2,500/- (Rupees Two thousand and five hundred) was handed over, as evident from the sale deeds itself. As per the clear recitals in the sale deeds, the defendant had retained Rs.4,500/- (Rupees Four thousand and five hundred) each, so as to settle the dues remaining against the plaintiffs in the various institutions.

3. The defendant failed to satisfy the dues and hence when the plaintiffs repeatedly approached him, he executed an agreement with respect to one of the properties promising to handover the remaining Rs.4,500/- and with respect to the other property, another agreement was executed, taking upon himself the responsibility to repay all the loans. The sale deeds were produced as Exhibit Nos.66 and 67 and the agreements were produced as Exhibit Nos.60 and 63 before the Trial Court, and in this appeal as additional documents along with translations.

4. The Trial Court after evaluating the evidence, found that the agreements related to a concluded sale and, though, there was only part payment of the sale consideration, even as per the agreement, there is no condition incorporated in the sale deed that refusal to pay the balance sale consideration would result in the cancellation of the sale deed. The further agreements only reaffirmed the obligation of the defendant to pay the balance consideration as per the sale deed i.e. Rs.4,500/- each, totaling Rs.9,000/-. A further contention taken by the plaintiffs that the property had other co-owners, members of the plaintiffs’ family, was rejected finding that so long as the first plaintiff was alive, there was no question of any of his sons taking a share in his property.

5. On possession, it was found, based on the evidence led, that the proceedings under the Criminal Procedure Code, 1973 specifically under Section 145, resulted in the Sub Divisional Magistrate (SDM) taking over possession and later handing it over to the plaintiffs. The Trial Court found that the defendant has to pay the balance consideration with interest from 10.03.1975 to perfect his title. The plaintiffs’ suit was dismissed with the finding that the plaintiffs were not entitled to; cancellation of the sale deeds, declaration of ownership or the injunction as prayed for. Insofar as the possession, the Trial Court refused to interfere, since it found that there was no claim for specific performance or reconveyance. We would rather justify the refusal to interfere in the possession to be, by reason of a counter claim not having been raised. Be that as it may, the Trial Court dismissed the suit, and the Firs