NDLI: Kewal Krishan Vs. Rajesh Kumar & Ors. Etc

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Transfer of Property Act: s.54
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Transfer of Property Act, 1882 (4 of 1882)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Transfer of Property Act: s.54 – Case of plaintiff-appellant was that he had executed a power of attorney in favour of his brother – Acting on the basis of power of attorney, his brother executed two sale deeds – The first sale deed was executed in favour of his sons and the other in favour of his wife – Plaintiff filed two suits – One was against his brother and his minor sons and the other was against his brother and his wife – Defence of defendant-brother was that he was in muscat and earning well and remitting money to his brother to purchase properties in his name – However, while purchasing the properties, plaintiff had got his name incorporated as joint purchaser – Trial court accepted the case of defendant and dismissed the suit – First appellate court partly allowed the appeal holding that both the brothers were joint purchaser – High Court upheld the view that both the brothers were joint owners of suit properties and the suits for declaration of invalidty of the sale deeds were barred by limitation and the sale considerations mentioned in the sale deeds executed in 1981 of Rs.5500 and Rs.6875 were not exhorbitant and the amounts were not out of reach of the sons and wife of defendant-brother – On appeal, held: The modified decree passed by High Court on the basis of the finding that the plaintiff and defendant-brother were the joint owners of the suit properties as the defendant-brother failed to establish his claim that he was the sole owner of the suit properties – Defendants did not challenge the impugned judgment and therefore, the finding that the plaintiff and defendant-brother were the joint owners of the suit properties has become final – Admittedly, there is no evidence adduced on record by defendant-brother that his minor sons and his wife had any source of income at the relevant time and that they paid him consideration as mentioned in the sale deed – There is a categorical finding recorded by trial court that defendant-brother by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration – High Court did not disturb the finding recorded by trial court regarding the failure of the defendants to adduce evidence regarding the payment of consideration under the sale deeds – High Court merely observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was not exorbitant and was not out of reach of minor sons and wife – High Court ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor and it was not even pleaded that they had any source of income – The same was the case with the sale deed executed in favour of his wife – Thus, defendants-respondents failed to adduce any evidence to prove that the minor sons and wife had any source of income and that they had paid the consideration payable under the sale deed. Transfer of Property Act: s.54 – Sale without consideration – A sale of an immovable property has to be for a price – The price may be payable in future – It may be partly paid and the remaining part can be made payable in future – The payment of price is an essential part of a sale covered by s.54 of the 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 the payment of price at a future date, it is not a sale at all in the eyes of law – Therefore, such a sale will be void – It will not effect the transfer of the immovable property – 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 had no earning capacity – No evidence was adduced by defendant-brother about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons – Hence, the sale deeds will have to be held as void being executed without consideration – Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties – In fact, such a transaction made by defendant-brother of selling the suit properties on the basis of the power of attorney to his own wife and minor sons is a sham transaction – It was not necessary for the plaintiff to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint – The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void – A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings – Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all – As no title was transferred under the said sale deeds, the plaintiff continues to have undivided half share in the suit properties – Decree passed by trial court that the plaintiff is entitled to joint possession of the suit properties along with his defendant-brother is restored.
Judge	Hon'ble Mr. Justice Abhay.S. Oka
Neutral Citation	2021 INSC 765
Petitioner	Kewal Krishan
Respondent	Rajesh Kumar & Ors. Etc
SCR	[2021] 11 S.C.R. 588
Judgement Date	2021-01-22
Case Number	6989-6992

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