M.Kamalakannan v. M.Manikandan

"(i) For recovery of possession of the suitproperty situated at Door No.56 Beemanna Mudali Street,Alwarpet, Madras 600 018 and morefully described in theSchedule from the defendants, their agents henchmen andrelatives; and(ii) for costs."(extracted as such)(b) The written statement was filed by the defendants resistingthe suit.(c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff-Manikandan examined himself asP.W.2 along with P.W.1-Muthusamy and Exs.A1 and A11 were marked. Thethird defendant-Gopal examined himself as D.W.1.(e) Ultimately the trial Court decreed the suit, as againstwhich the defendants preferred appeal, for nothing but to bedismissed by the appellate Court confirming the judgment and decreeof the trial Court.3. Being aggrieved by and dissatisfied with the said judgmentsand decrees of both the Courts below, this Second Appeal has beenfiled on various grounds and also suggesting the followingsubstantial questions of law:"1. Whether ownership of the property sold underEx.A2 is passed on partial payment of sale considerationmade by the respondent2. Whether title to the property under Ex.A2 ispassed to the respondent on its execution and registrationwhen especially more than half of the total saleconsideration is unpaid?3. Whether in a bilateral instrument can one partyrescind his obligation on the failure of his adversary tocall upon him to fulfill the terms of the written andregistered instrument?4. Whether the time limit of 6 months fixed in Ex.A2for the payment of balance of sale consideration ofRs.65,000/- is a condition precedent to make the sale deedEx.A2 valid in the eyes of law?5. Whether title and ownership are passed in prasention execution and the registration of the sale deed, whenespecially the title is a claim of right to a property andownership is a right to own and possess the tangible https://hcservices.ecourts.gov.in/hcservices/ immovable property?6. Whether the court of 1st instance and 1st appellateCourt applied the well nigh maxim "JUS ALTERI NON HAPENDIor JUS PROHIBENDI (the right to exclude others from itsuse) so far as the contentious issues involved in thesubject matter of the suit?7. Whether the suit for recovery of possession by therespondent is maintainable in the absence of a declarationof title to the property sold?8. Whether the suit filed by the respondent is barredby limitation?9. Whether the extrinsic evidence is allowed to varythe terms of the written registered instrument undersection 92 of the Evidence Act?10. Whether the transfer or property sold under Ex.A2passes forthwith to the transferee when especiallydifferent intention is expressed and inferred by necessaryimplication as per the terms of the registered sale deedEx.A2?"(extracted as such)4. Heard both sides so as to find as to whether any substantialquestion of law is involved in this matter.5. I fumigate my mind with the principles as found enshrined inthe following decision:(2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOMETAX, DELHI]; certain excerpts from it would run thus:"19. It is manifest from a bare reading of thesection that an appeal to the High Court from adecision of the Tribunal lies only when asubstantial question of law is involved, and wherethe High Court comes to the conclusion that asubstantial question of law arises from the saidorder, it is mandatory that such question(s) mustbe formulated. The expression "substantialquestion of law" is not defined in the act.Nevertheless, it has acquired a definiteconnotation through various judicialpronouncements.23. A finding of fact may give rise to asubstantial question of law, inter alia, in theevent the findings are based on no evidence and/or https://hcservices.ecourts.gov.in/hcservices/ while arriving at the said finding, relevantadmissible evidence has not been taken intoconsideration or inadmissible evidence has beentaken into consideration or legal principles havenot been applied in appreciating the evidence, orwhen the evidence has been misread."6. A mere poring over and perusal of those excerpts includingthe whole judgment would reveal that perversity or illegality in thefindings of the Courts below or failing to apply the correct law ormis- reading or non-reading of the evidence would warrantinterference in Second Appeal.7. The gist and kernel of the arguments of the learned counselfor the appellants/defendants could succinctly and precisely be setout thus:(a) Both the Courts below fell into error in holding as thoughthere was a concluded contract of sale as per Ex.A2, the sale deeddated 27.04.1987.(b) The nomenclature in Ex.A2 would not be the decisive factorto assess the nature of the said document. (c) In Ex.A2, there is nothing to indicate and exemplify thatthe sale was completed strictly in accordance with Section 54 of theTransfer of Property Act. (d) Almost after eight long years from Ex.A2 dated 27.04.1987,the plaintiff did choose to file the suit after issuing the pre suitnotice. (e) In fact, the plaintiff abandoned his right, if any, in Ex.A2and only as an afterthought he did choose to file the suit; it is nota mere case of withholding a part of the sale consideration after thesale having been completed, but here payment of the remaining part ofthe sale consideration alone was agreed to constitute a sale betweenthe parties. (f) Subsequent to Ex.A2 for about eight years, the plaintiff didnot choose to come forward to pay the remaining part of the saleconsideration, so to say, Rs..65,000/- and get the sale concluded. (g) Both the Courts below were carried away by the fact thatEx.A2 refers to the term 'sale' and that it contains stereotypedclauses relating to sale. (h) Mere registration of Ex.A2 in no way passed on the title inthe property in favour of the plaintiff from the defendants. https://hcservices.ecourts.gov.in/hcservices/ (i) Both the Courts below failed to take into account the factthat subsequent to Ex.A2, the plaintiff toiled and moiled likeanything to get the tenants evicted so as to obtain possession fromthem. As such, the possession of the property contemplated underEx.A2 at no point of time was handed over by the defendants to theplaintiff and in such a case, Ex.A2 niggard of delivery of possessionin no way would enure to the benefit of the plaintiff to contend thatunder Ex.A2 there was a concluded contract of sale.Accordingly, the learned counsel for appellants/defendants citingprecedents, would pray for setting aside the judgments and decrees ofboth the Courts below and for the dismissal of the original suit.8. In a bid to torpedo and pulverise the arguments as put forthand set forth on the side of the appellants/defendants, the learnedcounsel for the respondent/plaintiff would advance his arguments,which could pithily and precisely be set out thus:(a) Under Ex.A2, there was a concluded contract of sale. (b) Simply because a sum of Rs.65,000/- was allowed to beretained by the plaintiff, who is the buyer, that it does not meanthat there was no concluded contract of sale under Ex.A2. (c) The recitals in Ex.A2 would exemplify and demonstrate theintention of the parties. Both the Courts below referring to therelevant clauses in Ex.A2 and other attending circumstances as stoodexemplified from the oral and documentary evidence decided the lis,warranting no interference in the Second Appeal. (d) If at all any substantial question of law is involved inthis Second Appeal, the High Court could interfere, as otherwise, asagainst concurrent finding of facts, no Second Appeal could beentertained. (e) The plaintiff in commensurate with his averments in theplaint expressed his willingness to deposit the said sum ofRs.65,000/- which remained unpaid. However, the Court below did notpermit him to deposit the said amount. The plaintiff got his feetsur-bated by frequenting the place of the defendants and demandingthem to hand over possession, which evoked no positive response. Assuch mere delay of seven or eight years in filing the suit would notbe detrimental to the claim of the plaintiff as per Article 65 of theLimitation Act. The suit has been filed within twelve years fromEx.A2.Accordingly, the learned counsel for the respondent/plaintiffwould pray for dismissing the Second Appeal. https://hcservices.ecourts.gov.in/hcservices/

9. Indubitable and indisputable, or atleast the undeniablefacts could tersely and briefly be set out thus:The plaintiff and the defendants entered into a sale transactionwhich they got embodied in the form of Ex.A2 dated 27.04.1987.Obviously and axiomatically, Ex.A2 would convey and portray that itis a sale deed. At this juncture, I would like to extract certainclauses from Ex.A2 :"NOW THIS DEED OF SALE WITNESSETH that inconsideration of the above and the payment ofRs.1,15,000/- in the manner following:-Rs.15,000/- already received as aforementionedRs.35,000/- paid at the time of the Registrationof these presents,Rs.65,000/- agreed to be received by the Vendors when delivering Vacant possession of the entire premises to the purchaser and after dischargingall the liabilities and monies borrowed by the VENDORS, within 6 months from this date. ...........THE VENDORS do hereby covenant with the PURCHASERthat the Purchaser shall at all time hereafter peacefullyand quietly possess and enjoy the said property andreceive the rents and profits therefrom without anylet,hindrance or claim or demand whatsoever from the VENDORSor any other person or persons..........THE VENDORS do hereby declare and covenant with thePURCHASER that the said property is not subject to anymortgage, charge, lien, attachment, lispendens, orencumbrance in favour of any person and the Vendorsdeclare that there is no defect of any kind in theirtitle to the property hereby conveyed and covenant thatthe Vendors will indemnify the Purchaser against alllosses or any such defects in the title of the Vendors tothe property hereby conveyed or by reason of any of therepresentations contained in this Deed proving incorrectthat the vendors and all persons equitably claimingthrough or under them shall and will from time to timeand at all times hereafter do, execute and register orcause to be done executed and registered for further andmore perfectly assuring the said property and every partthereof into the PURCHASER by way of absolute sale as bythe PURCHASER shall be required at his cost. The VENDORSdo hereby assure the purchaser that they have paid all https://hcservices.ecourts.gov.in/hcservices/ public charges and taxes, and other outgoing upto datepayable to any public body or government in respect ofthe said property and that if any remain unpaid, thePurchaser may pay the same recover the same from theVendors with costs.The VENDORS have handed over the title deeds, to thepurchaser and been put the Purchaser in possession of theproperty making the tenants attorn to him."10. Unarguably and unassailably, the plaintiff paid to thedefendants a sum of Rs.15,000/- and another sum of Rs.35,000/- asfound contemplated in sheet No.6 of Ex.A2. It is also an undeniablefact that the remaining sale consideration of Rs.65,000/- ascontemplated in sheet No.6 of Ex.A2 so far was not paid by theplaintiff to the defendants. According to the learned counsel forthe defendants, such non payment of Rs.65,000/- would come in the wayof holding that there was a concluded sale as per Ex.A2. 11. Whereas, the learned counsel for the plaintiff would submitthat the retention of Rs.65,000/- as contemplated under sheet No.6 ofEx.A2 in no way would cut at the validity of the sale as foundembodied in Ex.A2. 12. The core question arises as to whether both the Courts belowassessed Ex.A2 as per law. I would like to refer to the decisionscited on both sides.13. The learned counsel for the appellants/defendants relied onthe following decisions:(i) The decision of this Court reported in 2002(3) CTC 225[Rajagopal and another v. Kaliaperumal]; certain excerpts from itwould run thus:"11. Much relying on the following two decisions, thelearned counsel for the appellants would urge that thetitle of the appellants in respect of the suit property hasnot passed to the respondent/plaintiff despite theexecution and registration. In the said decision reportedin Ananda Chandra Pradhan v. Nilakantha Tripathy andothers, AIR 1972 Ori. 99 it has been held as follows:"Transfer of Property Act (1882), Section54-Transfer of ownership-the passing of title onexecution of a sale deed depends on the intentionof the parties with which they have executed thesale deed. Such intention has to be gatheredprimarily from the recitals in the sale deed andif they are ambiguous, from the surrounding https://hcservices.ecourts.gov.in/hcservices/ circumstances and the conduct of the parties.Where according to the recitals in the saledeed prior receipt of consideration moneyactuated the vendor to execute the sale deed andit was found by a concurrent finding that therewas no payment of consideration, title could notbe said to have passed merely on the execution ofthe sale deed." ........ 12. In the instant case, in view of the facts andcircumstances, this Court is of the considered view thatthe title of the appellants despite the execution andregistration of the document has neither passed to therespondent nor can he seek for declaration of title to thesuit property merely on the basis of execution andregistration of Ex.A1, sale deed, when the balance of saleconsideration as found under Ex.A1 was neither paid beforethe registration nor was tendered at the time ofregistration nor has the respondent/plaintiff any intentionto pay the balance of sale consideration........."(ii) The precedent of the Hon'ble Apex Court reported in (2009)4 SCC 193 [Kaliaperumal v. Rajagopal and another]; an excerpt from itwould run thus:"22. There is yet another circumstance to show thattitle was intended to pass only after payment of fullprice. Though the sale deed recites that the purchaser isentitled to hold, possess and enjoy the scheduledproperties from the date of sale, neither the possessionof the properties nor the title deeds were delivered tothe purchaser either on the date of sale or thereafter.It is admitted that possession of the suit propertiespurported to have been sold under the sale deed was neverdelivered to the appellant and continued to be with therespondents. In fact the appellant, therefore sought adecree for possession of the suit properties from therespondents with mesne profits. If really the intentionof the parties was that the title to the properties shouldpass to the appellant on execution of the deed and itsregistration, the possession of the suit properties wouldhave been delivered to the appellant."14. The learned counsel for the respondent/plaintiff relied onthe following decision:(i) The decision of the High Court of Orissa reported in AIR1996 ORISSA 86 [Basanti Mohanty v. Brahmanand Das and others];certain excerpts from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "6. Section 54 of the Transfer of Property Act, 1882(in short, the 'Act') is a part of Chapter III dealing withsale of immovable property. 'Sale' is defined as being atransfer of ownership for a price. In a sale there is anabsolute transfer of all rights in the property sold. Norights are left in the transferor. The essential elementsof a sale are (i) the parties; (ii) the subject-matter;(iii) the transfer or conveyance; and (iv) the price orconsideration. The word 'price' is used in its ordinarysense as meaning money only. It is used in the same senseas in Section 77 of the Indian Contract Act, 1872 (inshort, the 'Contract Act'). As has been observed by theSupreme Court in Commissioner of Income-tax v. Motor andGeneral Stores (P) Ltd., AIR 1967 SC 200 (sic), though'price' is not defined in the Act, it is used in the samesense as in the Sale of Goods Act, 1930 (in short, the'Sale Act'), and means the money consideration for the saleof goods The presence of a money consideration is anessential element in a transaction of sale. Price is theessence of a contract for sale, and unless price is fixed,there is no enforceable contract because if no price isnamed law does not imply, as in the case of a sale ofgoods, a contract to buy at a reasonable price. In allsales it is evident that price is an essential ingredientand that where it is neither ascertained nor renderedascertainable the contract is void for incompleteness, andincapable of enforcement. If the consideration is notmoney, but some other valuable consideration, it may be anexchange or barter, but not a sale. The payment of priceis not necessarily a sine qua non to the completion of thesale. If the intention is that property should pass onregistration, the sale is complete as soon as the deed isregistered, whether the price has been paid or not, and thepurchaser is entitled to sue for possession although he hasnot paid the price. This is clear from the words of thesection, 'price paid or promised or part paid or partpromised'. If the price is not paid the seller cannot onthat account set aside the conveyance. We can only sue forthe price, and he will have a charge on the property forthe unpaid purchase-money. This is a non-possessory chargein terms of Section 5(4)(b) of the Act. 7 .........Intention of the parties as to whethertitle to a particular property would pass only on paymentof the consideration amount or it will pass independent ofpayment of the consideration amount has to be inferred fromthe recitals of the document itself. When the recitals ofthe document are clear and unambiguous on the point ofpassing of title and payment of consideration, the sole https://hcservices.ecourts.gov.in/hcservices/ criterion to gather intention of the parties is to dependon the recitals of the document itself. Where there isambiguity and uncertainty as to the terms of the agreementbetween the parties concerning their intention, conduct ofthe parties, surrounding circumstances attending the caseand evidence adduced on both sides have to be taken intoconsideration........"15. Absolutely there is no quarrel over the proposition of lawas found exemplified and highlighted supra relating to sale. Section54 of the Transfer of Property Act has been interpreted in thejudgment reported in AIR 1996 ORISSA 86 referred to supra. It istherefore crystal clear that for the purpose of holding that there isa concluded contract of sale, it is not necessary that there shouldhave been full payment of the sale consideration by the buyer to theseller. On the other hand, if the buyer could from the recitals inthe sale deed itself point out that he was permitted to retain a partof the sale consideration so as to compel certain performance ofobligations by the seller, then such retention of the part of thesale consideration would not cut at the validity of the sale. Infact the judment of the Orissa High Court referred to supra wouldreiterate the said law point only.16. I would also like to refer to Section 55(5)(b) of theTransfer of Property Act, wherein it could readily be seen that thelaw itself permits the parties to have an arrangement, in which, thebuyer could retain out of the purchase money certain amount, so as tocompel certain obligations to be performed by the seller in respectof the suit property. In this case, the above excerpt from Ex.A2,would exemplify and demonstrate, display and convey that the sellerhimself undertook that he would get his tenants evicted from theproperty concerned within six months and hand over possession of itto the plaintiff and and thereafter receive the remaining part of thesale consideration of Rs.65,000/- from the plaintiff as contained insheet No.6 of Ex.A2.17. I would like to point out that the tenor of the said clauseis to the effect that the seller agreed to receive from the buyer theremaining part of the sale consideration on the seller performing hispart of the obligation, so to say, getting the tenants evicted fromthe premises within a period of six months and handing overpossession of it to the plaintiff. It is pellucidly and palpablyclear that there was a period of lull, so to say for about seven oreight years during which period neither of the parties gave anynotice to the other and now on the plaintiff's side it is beingargued as though the plaintiff was orally making request to thedefendants to perform their obligations under Ex.A2, so as to enablethe plaintiff to pay the remaining part of the sale consideration. https://hcservices.ecourts.gov.in/hcservices/

18. Whereas, on the side of the defendants, it is being arguedthat virtually the plaintiff abandoned his right under Ex.A2 and thatwas why he kept quiet without paying the remaining part of the saleconsideration As has been pointed out by the learned counsel for theplaintiff, the recitals in Ex.A2 should necessarily be consideredfor understanding the real purport of Ex.A2. I hark back to thefollowing maxim:Verba generalia restringuntur ad habilitatem rei velpersonam: General words must be interpreted to suit thesubject matter or the personThe words in a document should be interpreted reasonably and thatshould not be misinterpreted so as to pave the way for some absurdconclusions. The clauses extracted supra from Ex.A2 would connoteand denote that the defendants virtually sold the property in favourof the plaintiff. Relating to payment of consideration is concerned,Ex.A2 contemplated three modes of payments and out of which two modesturned out to be fait accompli and the third mode, namely payment ofRs.65,000/- by the plaintiff to the defendants alone is now inquestion. Both parties entered into Ex.A2 in the cold light of theday and they were in the know of things. It is not as though thedocument is vitiated by any misunderstanding. 19. I recollect the maxims:(i) Non videntur qui errant consentire : They whoerr are not considered as consenting.(ii) Ubi jus ibi remedium : Where there is a rightthere is a remedy.Accordingly if viewed, it is clear from Ex.A2 that the defendantsintended that Ex.A2 should be a sale deed in stricto sensu and thereis no clause which could be equated to a clause incorporatingcontract to the contrary under Section 55 of the Transfer of PropertyAct. As correctly pointed out by the learned counsel for theappellants/defendants, the parties are entitled to have differentclauses in variance with the clauses as found set out under Section55 of the Transfer of Property Act. If there are no clauses in acontract to the contrary, then the clauses as contained in Section 55of the Transfer of Property Act would automatically apply propriovigor. According to the learned counsel for theappellants/defendants, the clauses as contained in sheet No.6 ofEx.A2 should be taken as contract to the contrary as per Section 55of the Act and accordingly, Ex.A2 should be interpreted.20. Whereas, the learned counsel for the plaintiff would submitmeaningfully and acceptably that the entire reading of the documentEx.A2 would unambiguously and unequivocally highlight and spotlight https://hcservices.ecourts.gov.in/hcservices/ the fact that the defendants divested themselves of all their rightsover the suit property and accordingly, the property in the saidimmovable got transferred from the defendants to the plaintiff as perEx.A2. The recitals in Ex.A2 cannot simply be pooh-poohed orbelittled, discarded or despised as the ones emerged out ofmisunderstanding and as already pointed out by me supra, therespective meanings attached to those words and clauses should beassigned while interpreting Ex.A2. In fact, the last paragraph justabove the schedule in Ex.A2 would connote that under Ex.A2 thedefendants "handed over the title deeds, to the purchaser and beenput the purchaser in possession of the property making the tenantsattorn to him." (extracted as such) It is therefore clear thatnotional possession of the suit property was given by the defendantsto the plaintiff. Only for handing over corporeal possession, so tosay the physical possession of the house, the seller wanted sixmonths' time; Whereupon, the buyer was enjoined to pay the saidremaining sale consideration of Rs.65,000/-. It is therefore crystalclear that the animus found embedded in Ex.A2 would demonstrate anddisplay that the sellers and buyer wanted Ex.A2 to be a sale deed instricto sensu and there is no clause which could be interpreted tothe effect that it is not a concluded contract of sale. Both theCourts below in my considered opinion, au fait with law and aucourant with facts analysed the evidence and decided the liswarranting no interference in the Second Appeal. 21. The learned counsel for the appellants/defendants would alsotry to usher in Section 37 of the Indian Contract Act and accordingto him, when there is failure on one of the parties to a contract toperform his obligation, then it should be taken that there was noconcluded contract. There could be no quarrel over with such aproposition. There should be consensus ad idem in order toconstitute a contract. Here under Ex.A2 there is nothing to indicateand connote there was no consensus ad idem between the parties. Withtheir wide open eyes the parties entered into Ex.A2, whereby theseller allowed the buyer to retain a part of the sale considerationso as to compel the seller to perform certain obligations of evictingthe tenants within a period of six months. Even by phantasmagoricalthoughts or by any wild imagination it could be held that suchretention of the money so as to compel the seller to perform certainobligations, should be taken as a factor which would cut at the veryroot of the validity of the sale. 22. The relevant clause in Ex.A2 relating to payment ofRs.65,000/- would impose a condition that the defendants should getevicted the tenants and hand over possession of the suit property tothe plaintiff, as sine quo non for them to claim the said sum fromthe plaintiff. Pellucidly and palpably, it is clear that thedefendants did not come forward to hand over possession of the suitproperty as undertaken by them and in such a case they cannot try tocapitalise their own fault. https://hcservices.ecourts.gov.in/hcservices/

23. My mind is reminiscent and redolent of the following maxims:(1) Nul prendra advantage de son tort demesne : Noone shall take advantage of his own wrong(2) Nullus commodum capere potest de injuria suapropria : No one can gain advantage by his own wrong.24. A fortiori, the defendants who are at fault cannot raisetheir accusative finger as against the plaintiff for having filed thesuit seven or eight years after Ex.A2. Within the period oflimitation as contemplated under Article 65 of the Limitation Act1963, the plaintiff filed the suit which cannot be found fault with.25. Hence I am of the considered view, that in this case thereis no question of law much less substantial question of law isinvolved in the matter and I could see no perversity or illegality inthe findings of both the Courts below. 26. However, while disposing of this Second Appeal, this Courtwhich is having supervisory jurisdiction also under Article 227 ofthe Constitution coupled with Section 100 of CPC. No doubt, here thedefendants have not filed any counter claim or any separate suit forrecovery of the sum of Rs.65,000/- in view of their unsuccessfulcontention all along that there was no concluded contract of saleunder Ex.A2.27. Whereas, the plaintiff even in the plaint averred that hewas ready and willing to deposit the said sum of Rs.65,000/-, but thesame ended in fiasco, because the Court did not permit him to do so.The learned counsel for the plaintiff without mincing words hassubmitted that even now the plaintiff is ready and willing to depositthe said sum in Court. Hence in the interest of doing substantialjustice, the plaintiff is hereby directed to deposit the said sum ofRs.65,000/- within a period of one month from this date in the trialCourt, so as to enable the defendants to receive it before executingthe decree of the trial court as confirmed by the appellate Court andthis Court for delivery of possession.Accordingly, this Second Appeal is disposed of. No costs.Consequently, connected miscellaneous petition is closed Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The V Additional City Civil Judge, Chennai.2. The XVII Assistant City Civil Judge, Chennai.1 cc to Mr.P.Valliappan, Advocate, Sr.No.35585 S.A.No.576 of 2011kv(co)pmk.24.6.2011