Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | legitimate plea Second appeal |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Civil Procedure Code, 1908 : Order 8 - Defendant can raise any legitimate plea available to him under the law to defeat the suit of the plaintiff. Order 16 Rules 1(3) & 1-A - Rule 1-A not in derogation of Rule 1(3) - Witnesses - A party may bring witnesses even without applying for court summons - But leave of the court has to be procured before proceeding to examine such witnesses. Section 100 - Second appeal - Scope of power of the High Court under. Transfer of Property Act, 1882: Section 54: Sale of immovable property - Non payment or part-payment of sale consideration - Plea that sale deed was fictitious, collusive, void, not intended to be acted upon - Held, can be raised also by a defendant who was a stranger to the sale deed - It would depend upon the pleadings of the parties to the suit, nature of the deed, evidence led by the parties and other circumstances. Consideration - "Price paid or promised or part paid and part-promised" - Held, actual payment of full price at the time of execution of sale deed is not a sine qua non for completion of sale - Real test is the intention of parties. Section 55(4)(b) - Doctrine of Equitable lien - If ownership of the property is transferred to the buyer before the payment of the entire sale price - Held, vendor is entitled to a charge on that property for the amount of sale price as also interest thereon - Such charge provides the vendor the right to enforce the charge by way of filing a suit but does not entitle the seller to retain the property as against the buyer. Section 58(c), proviso - Mortgage by conditional sale - Determination of whether the transaction is an out and out sale or mortgage - Document styled as 'Kararkharedi' executed by Defendant No. 2 in favour of defendant No. 1 for a sum of Rs. 1500 with the stipulation that if the entire amount is returned to Defendant No. 1 before a specified date, the property to be re-conveyed to Defendant 2 - Held, deed must be treated as a mortgage by conditional sale. Evidence Act, 1872 - Section 114 Explanation (g) - Presumption of adverse inference - If a party to the suit abstains from entering the witness box, an adverse inference would arise against him. Deeds and documents - Interpretation of - The real test is the intention of the parties under the deed or documents -The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record. Words and phrase - Words ''price paid or promised or part paid and part-promised'' - Meaning of - In the context of Section 54 of the Act. |
Judge | Hon'ble Mr. Justice S. Saghir Ahmad |
Neutral Citation | 1999 INSC 112 |
Petitioner | Vidyadhar |
Respondent | Manikrao And Anr. |
SCR | [1999] 1 S.C.R. 1168 |
Judgement Date | 1999-03-17 |
Case Number | 1534 |
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