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1996 Supreme(All) 1055
HIGH COURT OF ALLAHABAD
R.H. Zaidi, J.
Shyam Sunder Agarwal – Appellants
Versus
Prescribed Authority - Respondents
C.M.W.P, No. 44703 of 1993
Decided on : Sep 20, 1996
Advocate appeared:
V.K. Barman
The requirement of six months' notice under Section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 applies only to cases of purchase of a building, and not to cases of devolution or gift.
Headnote:
U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 - SECTION 21(1)(A) - SALE DEED - INTERPRETATION - SIX MONTHS' NOTICE - NOT REQUIRED FOR RELEASE APPLICATION - TRANSACTION NOT A SALE - NO MONETARY CONSIDERATION PAID.
Fact of the Case:
Petitioner challenged the validity of an order rejecting their application to dismiss a release application filed by respondents under Section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, on the ground that six months' notice was not given before filing the release application. The petitioner claimed that the document relied upon by the respondents was a sale deed and not a gift deed, and therefore, six months' notice was mandatory.
Finding of the Court:
The court held that the document in question was not a sale deed as it lacked monetary consideration, a necessary element for a sale transaction. The court also found that the transaction was not a purchase, as defined under Section 21(1)(a) of the Act, and therefore, the requirement of six months' notice did not apply.
Issues: 1. Whether the document in question was a sale deed or a gift deed. 2. Whether six months' notice was required before filing the release application under Section 21(1)(a) of the Act.
Ratio Decidendi: 1. The court relied on the definition of 'sale' under Section 54 of the Transfer of Property Act and Section 2(10) of the Sales of Goods Act to establish that monetary consideration is an essential element of a sale transaction. 2. The court interpreted the term 'purchase' under Section 21(1)(a) of the Act to mean a transaction involving the acquisition of property through payment of money. Since the transaction in question did not involve monetary consideration, it was not considered a purchase.
Final Decision: The court dismissed the petition, upholding the validity of the order rejecting the petitioner's application to dismiss the release application. The court directed the release application to be decided within two months from the date of the order.
R. H. Zaidi, J.
1. BY means of this petition, under Article 226 of the Constitution of India, petitioner challenges the validity of the order dated 5.11.1993, whereby the application filed by the petitioner for dismissing the release application on the ground that before filing the said application six months' notice was not given, has been rejected by the Prescribed Authority.
2. IT appears that respondent Nos. 2 and 3 have filed the release application under Section 21 (1) (a) of U. P. Act No. XIII of 1972, for short 'the Act', pleading that they were the landlords of the building in question. Respondent No. 2 claims his right on the basis of a document dated 28.8.86, which was alleged to be a will executed by Smt. Somwati Devi in his favour.
Petitioner filed an application 29/C asserting that the document dated 28.8.86 was nothing, but is a sale deed executed by Smt. Somwati Devi in favour of respondent No. 2. Therefore, after execution of the said sale-deed, it was obligatory upon the respondent No. 2 to give six months' notice, which was not given before filing the release application. The release application was, therefore, not maintainable and was liable to be dismissed.
3. ON the other hand, respondent No. 2 objected to the said application and asserted that the document dated 28.8.1986 was nothing, but a will/deed or at the best a gift deed and that it was, therefore, not necessary to give six months' notice before filing release application.
4. THE Prescribed Authority after taking the view that the document in question could not be said to be a sale-deed inasmuch as there was nothing on record to show that monetary consideration was paid for the property in dispute, which was necessary for execution of a sale-deed, dismissed the application filed by the petitioner vide its order dated 5.11.1993. Petitioners, thereafter filed the present petition challenging the said order.
I have heard learned counsel for the parties. Learned counsel for the petitioner submitted that the document in question dated 28.8.86 was a sale-deed and not a gift deed and that the view taken to the contrary by the Prescribed Authority was apparently erroneous and illegal. On the other hand, learned counsel for the respondent Nos. 2 and 3 has supported the validity of the order passed by the Prescribed Authority.
5. I have considered the arguments which by the learned counsel for the parties and perused the record.
6. A copy of the document in question is on the record. The said document, on the face of it is deceased as 'Tamleeknama". In the said document, it has been stated as under : In the concluding paragraph, it has further been stated as under : (sic) Word 'Tamleek" is a word of Urdu Language : In " " (FIROZUL-LUGHAAT), IX Edition the meanings of the word "(Tamleek)" and "(Tamleeknama)" have been given as under : (sic) meaning thereby "Tamleeknama" is a document by which the existing owner gives away the proprietary right (title) in respect of specified property to the other person ; it is a document conferring the title other than a will.
Under Section 54 of the Transfer of Property Act, sale' has been defined as under :
"54. 'Sale defined.-'Sale' Is a transfer of ownership in exchange of the price paid or promised or part paid and part promised."
7. FROM the reading aforesaid of section, it is evident that no transaction of sale can be made without payment of price. "Price" means monetary consideration. Thus the payment of money consideration is necessary ingredient of sale.
8. SECTION 2 (10) of the Sales of Goods Act defines the 'price' as under: "2 (10). Price means money consideration in a sale of goods."
The Apex Court of the country in Commissioner Income Tax v. M/s. Motor General Stores, AIR 1968 SC 200, while considering the question, whether particular transaction was sale or exchange, was pleased to rule as under :
"In absence of any definition in the Transfer of Property Act 'price' used in Section 54 of Transfer of P
