MOHAMMAD ASHFAQ MOHAMMAD SIDDIQU MOTIWALA AND ANOTHER v. SUPRAFULLA BHASKAR KULKARNI AND OTHERS

Sale is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in theproperties sold. No rights are left in the transferor. The price isfixed by the contract antecedent to the conveyance. Price isthe essence of a contract of sale. There is only one mode oftransfer by sale in regard to immovable property of the valueof Rs.100/- or more and that is by a registered instrument. It isnow well settled that payment of entire price is not a conditionprecedent for completion of the sale by passing price is not acondition precedent for completion of the sale by passing oftitle, as section 54 of Transfer of Property Act, 1882 ('Act' forshort) define 'sale' as a transfer of ownership in exchange fora price paid or promised or part paid and part promised. If theintention of parties was that title should pass on executionand registration, title would pass to the purchaser even if thesale price or part thereof is not paid.

In the event of non-payment of price (or balance price as the case may be)thereafter, the remedy of the vendor is only to sue for thebalance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part ofthe sale price where the ownership of the property haspassed to the buyer before payment of the entire price, undersection 55(4)(b) of the Act. Normally, ownership and title tothe property will pass to the purchaser on registration of thesale deed with effect from the date of execution of the saledeed. But this is not an invariable rule, as the true test ofpassing of property is the intention of parties. Thoughregistration is prima facie proof of an intention to transfer theproperty, it is not proof of operative transfer if payment ofconsideration (price) is a condition precedent for passing ofthe property. The answer to the question whether the partiesintended that transfer of the ownership should be merely byexecution and registration of the deed or whether theyintended the transfer of the property to take place, only afterreceipt of the entire consideration, would depend on theintention of the parties.

Such intention is primarily to begathered and determined from the recitals of the sale deed. 3 WP / 11886 / 2023 When the recitals are insufficient or ambiguous thesurrounding circumstances and conduct of parties can belooked into for ascertaining the intention, subject to thelimitations placed by section 92 of the Evidence Act. .....” 7. Per contra, Mr. Tribhuwan, learned counsel for respondent no. 5supports the order. 8. The original plaintiff – respondent filed suit against the petitionerfor declaration that the sale deed executed by late Bhaskar Kulkarni bearingno. 3671 of 2001 dated 27.12.2005 in favour of petitioner no. 1 is void andnot binding upon the respondents. The original plaintiff – respondent hadsought relief of declaration that his father Bhaskar Kulkarni had no right, authority and competence to sell the said suit land. Consequently, the saidsale deed was not binding upon the original plainitff – respondent to theextent of their 4/5th share.

9. Learned trial Court has recorded findings in paragraphs no. 20,21, which read as under :- “20. On considering requirement of Section 54 of the Transfer of Property Act, 1882, it is very clear, consideration amount can be paidor promised or part paid and part promised. In present case, admittedly, Bhaskar accepted part payment and intention of partieswas clear to transfer ownership in exchange of considerationamount. Therefore, only because, entire consideration amount wasnot paid, it is not acceptable sale deed executed by Bhaskar infavour of defendant No.1 is void or liable to be cancelled.21. After having gone through terms and conditions of sale deed(Exh.164), it is not possible to accept there was no any liability of Bhaskar to clear any objection, if taken in future pertaining toownership and possession of the suit property, making it clear afterexecution of sale deed terms embodied in agreement to sale can notbe relied upon to ascertain liability of the parties, sale deed beingfinal document.