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ALLAHABAD HIGH COURT
Ved Prakash Vaish, J.
Raj Dutt and Ors. —Appellants
versus
Nageshwar and Ors. —Respondents
Second Appeal Nos.50 and 51 of 2002
Decided on 2.8.2019
(A) Agreement to Sell—Suit for cancellation of sale-deed—Non-payment of sale consideration—Seller is entitled where ownership of the property has passed to buyer before payment of whole purchase money to a charge upon property in hands of buyer—Mere fact that a sale deed recites payment of consideration which is not true cannot render the document invalid—To support a sale, it is not necessary that whole of the price should be paid—Price may be paid or promised wholly or in part—If according to tenor of document consideration was not actually paid, but document shows that there was an intention to pay, then in that case document is not rendered invalid on account of non-payment of consideration—On other hand, if intention was not to pay any consideration or document is without any consideration, document is of no effect—There is distinction between a sale where consideration is intended to be paid and is not paid and where consideration is not intended to be paid at all by both parties. [Section 55(4)(b) of Transfer of Property Act, 1882] (Paras 37 and 43)
(B) Civil Procedure Code, 1908—Order XLI Rule 31—Adjudication of appeal—Appellate court is final court of facts—First appellate court shall state points of determination, decision thereon and reasons for decision—Mere omission to frame points of determination does not vitiate judgment if first appellate court record its reason based on evidence—Object behind Rule 31 of Order XLI of C.P.C. appears to focus on contention of parties and appellate court in understanding in adjudicating rival claims—Appellate Court must record reasons for decisions and is to focus attention of Court to rival contentions of parties which arise for determinations and also to offer litigating parties an opportunity of knowing and understanding grounds upon which decision is founded in a view to enable them to know basis of decision and if they think proper and so advised to avail remedy of second appeal conferred by Section 100 CPC. (Paras 26 and 32)
Result: Appeals dismissed.
JUDGMENT
Ved Prakash Vaish, J.—Heard Sri U.S. Sahai, learned counsel for the appellants and Sri Q.M. Haque, learned counsel for the respondents.
2. By this common judgment, I will decide two appeals bearing Second Appeal No.50 of 2002 and Second Appeal No.51 of 2002 as both the appeals are against common judgment dated 28.11.2001, both the appeals are between the same parties and involve similar question of law.
3. The brief facts of Second Appeal No.50 of 2002 are that the appellants (plaintiffs in the original suit) filed a suit bearing Original Suit No.488 of 1990 for cancellation of the sale deed dated 02.02.1990 executed by Smt. Arti Devi in favour of the respondents/defendants which was registered on 21.03.1990. The case of the appellants/plaintiffs was that Sri Ram Bharose was owner of agricultural land in Gata No.124/0-50 and Gata No.130-sa/0-50 situated at Village Nurpur, Pargana Pahadpur, Tehsil Karnailganj, Gonda. The genealogical tree of the family of appellant is as under:—
Rambharose
A
A A A
Shubhkaran] Satyanarayan] Madhav Prasad Ð (saint)
A
A A A
Rampher Rajdutt plaintiff No.1 Mathura Prasad
(Died issueless) _ _ A
A A A
Santdayal Laxminarayan Om Prakash plaintiff No.1 plaintiff No.3 plaintiff No.4
4. It was stated that after the death of Sri Ram Bharose, his three sons, namely, Sri Shubhkaran, Sri Satyanarayan and Sri Madhav Prasad became owners of 1/3rd share each; after the death of Sri Shubhkaran, his son, Sri Rampher became owner of 1/3rd share, who died issueless about nine months before filing of the suit; Sri Rampher had become saint and was residing at Maniram Chhavani, Ayodhya; after the death of Sri Rampher, the appellants/plaintiffs became his legal heirs and came into possession of the property owned by Sri Rampher. It was alleged that after the death of Sri Rampher, defendants got executed a sale deed by producing some lady stated to be widow of Sri Rampher on 02.02.1990, which was registered on 21.03.1990 in respect of 1/3 part of Gata No.124/0-50 and 2-2/3 decimal of Gata No.130-sa/0-50 situated at Village Nurpur, Pargana Pahadpur, Tehsil Karnailganj, Gonda.; the respondents/defendants moved an application for mutation in Tehsil, thus, the appellants/plaintiffs came to know about the sale deed. Hence, the appellants/plaintiffs filed a suit bearing Original Suit No.488 of 1990 for cancellation of the sale deed dated 02.02.1990 which was registered on 21.03.1990.
5. The respondents/defendants contested the suit by filing written statement and denied the allegations made in the plaint. The respondents stated that Sri Rampher was neither saint nor unmarried; it was stated that he was married with Smt. Arti Devi, who is alive; after the death of Sri Rampher, his wife Smt. Arti Devi is the legal heir and became owner of the land owned by Sri Rampher; Smt. Arti Devi, widow of Sri Rampher was bhoomidhar and in possession of the land in question and she was competent to execute the sale deed. It was stated that Smt. Arti Devi executed sale deed dated 02.02.1990 which was registered on 21.03.1990 and after execution of the said sale deed, the defendants are bhoomidhar and in possession of the same. The respondents also stated that after the death of Sri Rampher, the land in question has not been mutated in the name of appellants/plaintiffs in the revenue record, therefore, suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. It was stated that the appellants/plaintiffs are not in possession of the land in question and, therefore, the suit is liable to be dismissed. It was also stated that Sri Madhav Prasad son of Sri Ram Bharose has been shown to be saint whereas he had two daughters, namely, Ramsawari and Vimla Devi, who are alive and are in occupation of property of Sri Madhav Prasad; suit is bad for non-joinder of said two daughters of Sri Madhav Prasad; suit is undervalued and the suit is liable to be dismissed.
6. On pleadings of the parti
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