Chandrashankar Manishankar v. Abhla Mathur

Dixit, J.:— [His Lordship after setting out the facts proceeded:] In dealing with the first point the lower Court thought that the plaintiff's suit was champertous and with all respect to the learned Judge, I am not clear as to what this issue means. I can understand an agreement which is alleged to be champertous, and if by the issue it is meant that the plaintiff has merely bought a litigation, the point is an understandable one. However that may be, the plaintiff has to prove his title which means that the plaintiff must prove his vendor's title. That again means that Jinia is an heir to Chhatia's property. The sale deed executed in his favour is produced as Exh. 24. The consideration mentioned in the sale deed is a sum of Rs. 699 and the document recites that the vendor had received on the date of the document the sum of Rs. 699. The vendor Jinia states in the sale deed that he had become the legal heir of his brother Chhatia. The document after describing the property refers to a mortgage executed by Chhatia while alive in respect of two of his fields viz. survey No. 267 and survey No. 268. The document recites that “the vendor shall redeem the mortgage. But if be does not redeem it, the purchaser is entitled to redeem the property.” The document also recites that after the death of Jibai, Chhatia's nephew Mathur had taken possession of the property. Mr. N.C Shah for defendants Nos. 1 and 2 contends that the plaintiff, not having paid the amount of the consideration, cannot file this suit upon the basis of this document. The contention is that the document is void and no suit can be founded upon such a document. Now, the recital as regards the payment of consideration as recited in the sale-deed is untrue. On the date of the document the sum of Rs. 699 was not in fact paid to Jinia. This will be clear by reference to a receipt which is Exh. 87. That receipt was executed by Jinia himself in favour of the plaintiff and it recites that a registered sale-deed was executed on 24th October 1943, for Rs. 699 and that the purchaser was to pay the vendor the amount of the consideration on getting possession. A reference to the receipt shows that a sum of Rs. 25 was paid to Jinia on the date of the document, viz. 26th November 1944, and for the remaining amount of Rs. 674 which the vendor was to receive, the purchaser was to give the vendor survey No. 355 which was one of the properties sold by Jinia to the plaintiff in October 1943. This receipt, Exh. 87, is a counterpart of Exh. 53, Exh. 53 having been executed by the plaintiff in favour of Jinia. The learned Judge upon a consideration of the evidence in the case came to the conclusion that in point of fact no consideration was received by the vendor Jinia, and holding as he did in that sense, he came to the conclusion that the document was void, that the plaintiff had given false evidence and that it must result in non-suiting the plaintiff. There is no doubt upon the evidence in the case that on the date of the document, viz. 24th October 1943, the plaintiff did not give Jinia the sum of Rs. 699 as recited in the document, The receipt, Exh. 87, shows that Jinia received a sum of Rs. 25 on 26th November 1944. This was long after the suit was filed. In fact that receipt was passed after the issues were settled in the suit. It is to be noted that the vendor Jinia has not himself raised the dispute as regards the alleged invalid nature of the transaction. But it is contended on behalf of defendants 1 and 2 that the document in the absence of payment of consideration is of no effect. A reference to the sale-deed shows that the consideration was partly in the payment of Rs. 699 and partly in the agreement by the purchaser to pay off the mortgage debt incurred by Chhatia in the year 1918. In a case like this the question is one of intention. If according to the tenor of the document, the consideration was not actually paid, but the document shows that there was an intention to pay, then in that case the document is not rendered invalid on account of the non-payment of the consideration. If, on the other hand, the intention was not to pay any consideration, then the document is of no effect. This principle is laid down in a case reported in Basalingava v. Chinnava, 34 Bom. L.R 427. A part of the headnote in that case runs as follows:

“There is a distinction between a sale where the consideration is intended to be paid and is not paid, and where the consideration is not intended by both parties to be paid at all. In the former case the title passes to the purchaser, and in the latter case though the vendor is tricked into going through the form of execution and registration of the document, the sale deed is void as a colourable transaction.”

2. It seems to us, therefore, that in this case it cannot be said that there was no intention to pay the amount of the consideration, and in view of this circumstance it seems to us that the title had passed to the purchaser. It may be that the recital in the document stating payment of the consideration is not true. But that does not invalidate the document. To support a sale it is not necessary that the whole of the price should be paid. The price may be paid or promised wholly or in part. This view is also supported by the decision of their Lordships of the Privy Council in Lal Achal Ram v. Raja Kazim Husain Khan, 32 Ind. App. 113. In our opinion, therefore, the lower Court was wrong in holding that the plaintiff had no right to bring this suit on the strength of the document executed in his favour on 24th October 1943.

3. [The rest of the judgment is not material to the report.]

4. The result of the above discussion is that the plaintiff has a right to sue upon the basis of the document executed in his favour by Jinia who is the reversionary heir of Chhatia, that the plaintiff's suit is not barred by limitation and that the will, Exh. 48, dated 8th September 1921, does not stand in the way of the plaintiff's vendor Jinia.

5. Then there remains the question as regards defendants 3, 4, 5 and 6. They are alienees from Mathur. But since we take the view that the plaintiff's vendor had no cause of action until 1935 when Bai Jibai died, the possession of the alienees cannot affect the right of Jinia and the defendants, therefore, would have no right to the property. Defendants 5 and 6 claim survey No. 267 under an oral sale from Mathur, but if Mathur had no title, they cannot get any title.

6. The result of the above discussion is that this appeal will be partially allowed and the decree of the lower Court modified. There will be a decree in favour of the plaintiff. The plaintiff shall recover from the defendants possession of survey Nos. 267, 268 and 361. There will be an inquiry into mesne profits, past and future, as claimed in the plaint, under O. 20, R. 12, Civil P.C

7. As the plaintiff succeeds in part and fails in part, the plaintiff is not entitled to the full costs of this appeal as well as of the suit. We accordingly direct that the plaintiff shall recover from the defendants one-half of the costs in the trial Court as well as in this Court. The defendants shall bear their own costs.

K.S

Appeal partly allowed.