2021 Supreme(SC) 704

SUPREME COURT OF INDIA
(From the High Court of Punjab & Haryana at Chandigarh)
AJAY RASTOGI, ABHAY S. OKA, JJ.
KEWAL KRISHAN - APPELLANT
VERSUS
RAJESH KUMAR & ORS. ETC. - RESPONDENTS
CIVIL APPEAL NOS. 6989-6992 OF 2021 [ARISING OUT OF SLP (C) NOS. 2033-2036 OF 2016]
Decided On : 22-11-2021

IMPORTANT POINTS
(1) Sale of an immovable property has to be for a price – Price may be payable in future – It may be partly paid and remaining part can be made payable in future.
(2) A document which is void need not be challenged by claiming declaration as such plea can be set up and proved even in collateral proceedings. Issue of bar of limitation of prayers for declaration incorporated by way of amendment does not arise at all.

Headnote:

(A) Transfer of Property Act, 1882 – Section 54 – Agreement to sell – Sale of an immovable property has to be for a price – Price may be payable in future – It may be partly paid and remaining part can be made payable in future – Payment of price is an essential part of a sale covered by Section 54 of 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 payment of price at a future date, it is not a sale at all in eyes of law – It is of no legal effect – Such a sale will be void – It will not effect transfer of immovable property. (Para 15)

(B) Agreement to sell – Execution of Sale-Deeds by Power of Attorney Holder – Suits seeking decree of injunction, possession and invalidation of sale-deeds – There is no evidence adduced on record by Power of Attorney Holder (Elder brother of appellant) that his minor sons had any source of income at the relevant time and that they paid him consideration as mentioned in sale deed – Similarly, no evidence was adduced to show that Power of Attorney Holder’s wife had any source of income and that she paid consideration mentioned in the sale deed – There is specific finding recorded by District Court that there was no evidence adduced to show that Power of Attorney Holder’s wife and minor children paid consideration as shown in sale deeds – There is a categorical finding recorded by District Court that Power of Attorney Holder, by taking advantage of power of attorney, transferred suit lands to his own minor sons and his wife without any consideration – High Court has not disturbed finding recorded by District Court regarding failure of respondents to adduce evidence regarding payment of consideration under sale deeds – Sale deeds will have to be held as void being executed without consideration – Sale deeds did not affect in any manner one half share of appellant in suit properties – Such a transaction made by Power of Attorney Holder of selling suit properties on the basis of power of attorney of appellant to his own wife and minor sons is a sham transaction – Sale deeds will not confer any right, title and interest on Power of Attorney Holder’s wife and children as sale deeds will have to be ignored being void – It was not necessary for appellant to specifically claim a declaration as regards sale deeds by way of amendment to plaint – A document which is void need not be challenged by claiming declaration as said plea can be set up and proved even in collateral proceedings – Issue of bar of limitation of prayers for declaration incorporated by way of amendment does not arise at all – Impugned Judgment of High Court set aside and common judgment and order passed by Additional District Judge restored.[Specific Relief Act, 1963 – Section 31] (Paras 14, 16, 17 and 18)

Facts of the case:

High Court held that appellant and his elder brother were the joint owners of the suit properties. The High Court held that the power of attorney was valid. High Court further held that the suits for declaration of invalidity of sale deeds were barred by limitation as the said prayers were belatedly incorporated on 23rd November 1985. The High Court held 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 sons of elder brother of appellant and his wife. 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 impugned Judgment and order, it directed elder brother of appellant to pay 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.

Findings of Court:

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 elder brother of appellant had no earning capacity. No evidence was adduced by elder brother of appellant about payment of the price mentioned in sale deeds as well as the earning capacity at the relevant time of his wife and minor sons.

Result : Appeals allowed.