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HIGH COURT OF BOMBAY
RAJADHYAKSHA, DIXIT, JJ.
Chandrashankar Manishankar
Versus
Abhla Mathur
First Appeal No. 297 of 1948
Decided On : 09-03-1951
SALE OF PROPERTY - CONSIDERATION - PART PAYMENT - INTENTION TO PAY - VALIDITY OF SALE - LIMITATION ACT (IX OF 1908), ART. 144 - ADVERSE POSSESSION - ALIENATION BY PERSON WITHOUT TITLE.
Fact of the Case:
Chhatia died childless in 1921, leaving a widow, Jibai. He had executed a will giving survey Nos. 39 and 355 to Jibai for maintenance and survey Nos. 267, 268, and 361 to his nephew, Mathur. Jibai remarried in 1922 and died in 1935. Mathur sold survey Nos. 39 and 355 to Jibai in 1922 to pay off debts. In 1925, Mathur mortgaged four lands, including those he inherited from Chhatia, to Pitambar. In 1926, Mathur mortgaged survey Nos. 268 and 39 to Girdharlal. In 1930, Mathur sold survey Nos. 268 and 361 to Maganlal, Pitambar's son. In 1937, Mathur sold survey No. 39 and the wada to Ratanlal, Girdharlal's son. Mathur died in 1939. Jinia, Chhatia's brother, sold the suit property to Chandrashankar (plaintiff) in 1943. The plaintiff filed a suit for possession of the suit property in 1943, impleading Mathur's sons, Maganlal, Ratanlal, and two others who claimed survey No. 267 under an oral sale from Mathur. The trial court dismissed the plaintiff's suit, holding that the sale deed executed in his favor was void due to non-payment of consideration.
Finding of the Court:
The High Court held that the sale deed executed in favor of the plaintiff was not void due to non-payment of consideration. The court found that there was an intention to pay the consideration, even though the full amount was not paid on the date of the document. The court also held that the plaintiff's suit was not barred by limitation, as the cause of action arose in 1935 when Jibai died. The court further held that the defendants, who were alienees from Mathur, had no right to the property since Mathur had no title.
Issues: 1. Whether the sale deed executed in favor of the plaintiff was void due to non-payment of consideration? 2. Whether the plaintiff's suit was barred by limitation? 3. Whether the defendants, who were alienees from Mathur, had any right to the property?
Ratio Decidendi: 1. The court held that the sale deed was not void due to non-payment of consideration because there was an intention to pay the consideration, even though the full amount was not paid on the date of the document. The court relied on the principle that a sale is not rendered invalid if the consideration was intended to be paid but was not actually paid, as opposed to cases where there was no intention to pay any consideration at all. 2. The court held that the plaintiff's suit was not barred by limitation because the cause of action arose in 1935 when Jibai died. The court applied Article 144 of the Limitation Act, which provides a 12-year limitation period for suits for possession of immovable property. 3. The court held that the defendants, who were alienees from Mathur, had no right to the property because Mathur had no title. The court found that the plaintiff's vendor, Jinia, was the reversionary heir of Chhatia and had a right to the property upon Jibai's death.
Final Decision: The High Court partially allowed the plaintiff's appeal and modified the decree of the lower court. The court granted the plaintiff possession of survey Nos. 267, 268, and 361 and ordered an inquiry into mesne profits. The court directed the plaintiff to recover one-half of the costs in the trial court and the High Court from the defendants.
facts :- The property in suit which consisted of (1) a house survey No. 39, and a wada, (2) survey No. 267, (3) survey No. 268, (4) Survey No. 355 and (5) survey No. 361 originally belonged to one Chhatia who was one of the four or five sons of Butal. One Jinia was the full brother of Chhatia, while Harji and Devla were his step-brothers. In the year 1921 Chhatia died childless, leaving him surviving a widow by name Jibai. Prior to his death, Ghhatia executed a writing called a will on 8th September 1921. Under this will Chhatia purported to give survey No. 39 and survey No. 355 to his wife Jibai for maintenance and he gave survey Nos. 267, 268 and 361 to Mathur who was his nephew, being the son of Harji, his stepbrother. In about the middle of 1922 Bai Jibai contracted re-marriage called natra marriage and she died in 1935.
On 10th April 1922, Jibai sold to Mathur, the nephew of Chhatia, survey No. 39 and survey No. 355, the object of the sale being to pay off the debts mentioned in the sale deeds. Then in the year 1925 Mathur mortgaged four lands and the three lands which he had got under Chhatias will to one Pitambar in order to secure Rs. 2,999. On 13th May 1926, Mathur mortgaged survey No. 268 and survey No. 39 to one Girdharlal in order to secure Rs. 499. On 1st April 1930, Mathur executed in favour of one Maganlal, the son of Pitambar, a sale-deed conveying to Maganlal survey No. 268 and survey No. 861, and, lastly, on 9th December 1937, Mathur executed a sale deed in favour of Ratanlal, the son of Girdharlal, the house, survey No. 39, and the wada. Mathur died in or about the year 1939.
Jinia, claiming to be the heir of Chhatia, sold the suit property to Chandrashankar (plaintiff) by a sale-deed dated 24th October 1943, for Rs. 699. The plaintiff filed the present suit on 1st November 1943, for possession of the suit property. To this suit he impleaded as defendants, the sons of Mathur (defendants 1 and 2), Maganlal (defendant 3) who was a purchaser under the sale-deed of the year 1930, Ratanlal (defendant 4) who was a purchaser under the sale deed of the year 1937 and two other persons as defendants 5 and 6 who claimed under an oral sale from Mathur survey No. 267.
The plaintiffs claim was opposed by the defendants. The trial Judge raised as many as eighteen issues upon the pleadings of the parties, and upon the oral and documentary evidence adduced before him dismissed the plaintiffs suit.
The plaintiff appealed to the High Court.
. Dixit, J:- [His Lordship after setting out the facts proceeded :] In dealing with the first point the lower Court thought that the plaintiffs suit was champertous and with all respect to the learned Judge, I am not clear as to what this issue means. I can understand an agreement which is alleged to be champertous, and if by the issue it is meant that the plaintiff has merely bought a litigation, the point is an understandable one. However that may be, the plaintiff has to prove his title which means that the plaintiff must prove his vendors title. That again means that Jinia is an heir to Chhatias property. The sale deed executed in his favour is produced as Exh. 24. The consideration mentioned in the sale deed is a sum of Rs. 699 and the document recites that the vendor had received on the date of the document the sum of Rs. 699. The vendor Jinia states in the sale deed that he had become the legal heir of his brother Chhatia. The document after describing the property refers to a mortgage executed by Chhatia while alive in respect of two of his fields viz. survey No. 267 and survey No. 268. The document recites that "the vendor shall redeem the mortgage. But if he does not redeem it, the purchaser is entitled to redeem the property." The document also recites that after the death of Jibai, Chhatias nephew Mathur had taken possession of the property. Mr. N.C. Shah for defendants Nos. 1 and 2 contends that the plaintiff, not having paid the amount of the consideration, cannot file thi
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