M.R Sharma, J.:— The property in dispute belongs to one Labhu Singh, he was unmarried and died in the year, 1960. Before his death, on November 9, 1959, he made a will (Exhibit P. 3) in favour of the appellant who is his sister's daughter, bequeathing all his movable and immovable property in her favour. Earlier, on May 26, 1958, vide sale deed (Exhibit D.1) he had purported to transfer a part of his property in favour of Sunder Singh who is now dead. Sunder Singh further sold this property to Tara Singh, respondent on July 21, 1961, vide sale deed (Exhibit D. 2). In the sale deed (Exhibit D. 1) executed by Labhu Singh deceased on May 26, 1958, consideration of Rs. 5000/- is mentioned to have been paid like this:—
Rs. 1500/- by cheque.
Rs. 2400/- left with Sunder Singh for redeeming the earlier mortgage.
Rs. 1100/- received by Labhu Singh earlier at home.
2. On December 7, 1965, Ind Kaur, appellant filed a suit for declaration to the effect that she was in lawful possession of the property in dispute and that Tara Singh, respondent be restrained from interfering with her possession. Tara Singh, respondent of course set up a plea that he purchased this property from one Sunder Singh, who in turn had purchased the same from Labhu Singh deceased.
3. On behalf of Ind Kaur, appellant, it was asserted that the sale deed (Exhibit D. 1) alleged to have been executed by Labhu Singh deceased in favour of Sunder Singh was a sham transaction inasmuch it was without any consideration. On the pleas raised by the parties, the learned trial Court framed the following issues:—
1. Whether Labhu Singh deceased made a valid will in favour of the plaintiff in respect of the land in suit?
2. Whether the plaintiff is entitled to the land even otherwise by inheritance?
3. Whether Labhu Singh deceased sold the land in suit to Sunder Singh, defendant No. 1, for consideration?
4. Whether defendant No. 2 Tara Singh is a bona fide purchaser for consideration without notice from Sunder Singh, defendant No. 1?
5. Whether the plaintiff is not entitled to sue without claiming a relief for cancellation of the sale deed?
6. Whether the plaintiff is in possession of the land in suit?
7. Relief.
4. All the issues except issue No. 2 were decided by the learned trial Court in favour of the appellant. The respondent went in appeal and the learned lower appellate Court held that even if no consideration was proved to have been paid by Sunder Singh deceased to Labhu Singh deceased, yet as laid down in section 54 of the Transfer of Property Act, the title in property could pass even if a part of the price was paid or promised to be paid. On this finding, the appeal was allowed and the suit filed by the appellant was dismissed. She has come up in appeal before me.
5. Now some of the facts of the case are admitted. It is conceded that Rs. 1500/- were paid by Sunder Singh to Labhu Singh deceased by cheque and that cheque was dishonored. Ultimately, Sunder Singh was prosecuted under section 420 of the Indian Penal Code and convicted and sentenced to undergo rigorous imprisonment for 2 years. He was also ordered to pay a fine of Rs. 1500/-. The Court's below have given a finding that Rs. 1100/- alleged to have been paid to Labhu Singh deceased at home were not at all paid by Sunder Singh. It is also conceded that Ind Kaur appellant, redeemed this land by paying a sum of Rs. 2400/- to the mortgagee and on the date of the suit she was in possession of it. Apparently, Sunder Singh did not pass any consideration to Labhu Singh deceased in respect of sale deed (Exhibit D.1) executed on May 26, 1958. The question to be considered is whether in this situation, it was open to the lower appellate Court to ignore this document as being void or not. The transaction of sale is in the nature of a contract and it is settled law that once it is found that a contract is without consideration it has to be declared as void. In the circumstances, it must be held that title to the property did not pass in favour of Sunder Singh under the aforementioned sale deed and the appellant was entitled to get the relief claimed.
6. The learned counsel for the respondent has, however, submitted that since Sunder Singh died and his legal representatives have not been brought on record within limitation, the appeal should have been held to have abated. He has further argued that it was Incumbent upon the appellant to seek a declaration against the sale deed executed by Labhu Singh deceased in favour of Sunder Singh and that the time for such a suit had run out.
7. There is no merit in the first plea raised by the learned counsel for the respondent. Sunder Singh having sold the property was not at all a necessary party to the suit. Since Tara Singh respondent claimed title to this property, a decree could be passed in favour of the appellant effectively against Tara Singh, respondent, even if Sunder Singh had not been impleaded as a party. It is settled law that if an unnecessary party dies, the suit does not abate.
8. It is no doubt true that section 54 of the Transfer of Property Act defines sale to be a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised but from this definition it does not follow as a matter of course that even if a transferee deceives a transferor and leads him to execute a document on the basis of a false statement, the document should be held to constitute a valid transfer of the title of property to the transferee who it himself a wrong doer. If such a situation is allowed to prevail, the transferees of property would be encouraged to give out false issuance in the hope of getting the property transferred in their names. In paragraph No. 6 of the plaint, it has been asserted that Tara Singh, respondent, was making attempts to dispossess the appellant about a week before the institution of the suit. Since a cloud has been east upon her rights, it was open to the plaintiff to file the instant suit for declaration on December 7, 1965. Whether the suit is held to be governed by article 59 or article 113 of the Limitation Act or not, it was clearly within time. In Niamat Singh v. Darbari Singh etc. . 1956 58 PLR 461. a Division Bench of this Court held that under article 120 of the Limitation Act, time begins to run not from the date on which an adverse entry is made in the revenue papers but from the date on which there is a fresh denial of the plaintiffs rights. In Dalim Kumar Sain v. Smt. Nandarani Dasi . AIR 1970 Cal. 292., it was held that in a suit for declaration that trust deed was void, the incidental prayer for cancellation of instrument had to be ignored. It was also held that the case fell under article 120 of the Limitation Act. This is precisely what the appellant has done in the instant case. She has filed a suit for declaration to the effect that she was the owner of the property in dispute and for injunction against Tara Singh, respondent, within a prayer that he should be restrained from interfering with her possession. Since no right has come to be vested in Sunder Singh under the sale deed (Exhibit D.1) dated May 26, 1958, he could not confer any title upon Tara Singh respondent.
9. The learned counsel for the respondent relied upon Mussammat Bhagan v. Allah Ditta . 1911 P.R 55., Ghanshyam Das v. Musammat Hardei . 32 1916 Indian Cases, 380., Sukaloo v. Punau . 1961 M.P 176., and Ghanshyam Rath v. Udayanath Naik . AIR 1949 Orissa, 14., for the proposition that, whether title was intended to be passed under the sale deed (Exhibit D.1) or not had to be gathered from the language of the document itself. He argued that once the sale deed was registered the title had come to vest in Sunder Singh and the appellant could, if she so desired, file a suit for recovery of money from him I am not impressed with this argument either. When in a contract of sale a part of the consideration money is paid by cheque, the transferee gives out a representation that the cheque would be encashed on presentation to the bank.
10. The transferor executes a document on the assurance that money would be paid to him as represented. It would, therefore, be proper to assume that in such circumstances the intention of the parties was that title to property should not pass till the consideration money represented to be paid under the document his paid.
11. For the reasons mentioned above, I allow this appeal, set aside the judgment and decree of the lower appellate Court and affirm the same passed by the trial Court and decree the suit of the appellant. She will also be entitled to have her costs throughout.
12. Appeal allowed.