IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.576 of 2011 and M.P.No.1 of 2011 1. M.Kamalakannan 2. M.Gopal 3. M.Raghuraman M.Venkata Raman (deceased) 5. M.Vijaya Raghavan .. Appellants/Defendants vs. M.Manikandan .. Respondent/Plaintiff This Second Appeal is filed under Sec.100 of C.P.C. focussed as against the judgment and decree dated 12.11.2010 in A.S.No.628 of 2008 on the file of the V Additional City Civil Judge, Chennai confirming the judgment and decree dated 10.11.2008 in O.S.No.7479 of 1994 on the file of the XVII Assistant City Civil Judge, Chennai. For appellants : Mr.K.S.Sankhar Murali For respondent : Mr.P.Valliappan JUDGMENT This Second appeal is focussed by the original defendants, animadverting upon the judgment and decree dated 12.11.2010 passed in A.S.No.628 of 2008 by the V Additional City Civil Judge, Chennai, confirming the judgment and decree of the XVII Assistant City Civil Judge, Chennai in O.S.No.7479 of 1994. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the facts giving rise to the filing of this Second Appeal as stood exposited from the records would run thus: (a) The respondent/plaintiff filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "(i) For recovery of possession of the suit property situated at Door No.56 Beemanna Mudali Street, Alwarpet, Madras 600 018 and morefully described in the Schedule from the defendants, their agents henchmen and relatives; and (ii) for costs." (extracted as such) (b) The written statement was filed by the defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff-Manikandan examined himself as P.W.2 along with P.W.1-Muthusamy and Exs.A1 and A11 were marked. The third defendant-Gopal examined himself as D.W.1. (e) Ultimately the trial Court decreed the suit, as against which the defendants preferred appeal, for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 3. Being aggrieved by and dissatisfied with the said judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds and also suggesting the following substantial questions of law: "1. Whether ownership of the property sold under Ex.A2 is passed on partial payment of sale consideration made by the respondent 2. Whether title to the property under Ex.A2 is passed to the respondent on its execution and registration when especially more than half of the total sale consideration is unpaid? 3. Whether in a bilateral instrument can one party rescind his obligation on the failure of his adversary to call upon him to fulfill the terms of the written and registered instrument? 4. Whether the time limit of 6 months fixed in Ex.A2 for the payment of balance of sale consideration of Rs.65,000/- is a condition precedent to make the sale deed Ex.A2 valid in the eyes of law? 5. Whether title and ownership are passed in prasenti on execution and the registration of the sale deed, when especially the title is a claim of right to a property and ownership 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 appellate Court applied the well nigh maxim "JUS ALTERI NON HAPENDI or JUS PROHIBENDI (the right to exclude others from its use) so far as the contentious issues involved in the subject matter of the suit? 7. Whether the suit for recovery of possession by the respondent is maintainable in the absence of a declaration of title to the property sold? 8. Whether the suit filed by the respondent is barred by limitation? 9. Whether the extrinsic evidence is allowed to vary the terms of the written registered instrument under section 92 of the Evidence Act? 10. Whether the transfer or property sold under Ex.A2 passes forthwith to the transferee when especially different intention is expressed and inferred by necessary implication as per the terms of the registered sale deed Ex.A2?" (extracted as such) 4. Heard both sides so as to find as to whether any substantial question of law is involved in this matter. 5. I fumigate my mind with the principles as found enshrined in the following decision: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or https://hcservices.ecourts.gov.in/hcservices/ while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." 6. A mere poring over and perusal of those excerpts including the whole judgment would reveal that perversity or illegality in the findings of the Courts below or failing to apply the correct law or mis- reading or non-reading of the evidence would warrant interference in Second Appeal. 7. The gist and kernel of the arguments of the learned counsel for the appellants/defendants could succinctly and precisely be set out thus: (a) Both the Courts below fell into error in holding as though there was a concluded contract of sale as per Ex.A2, the sale deed dated 27.04.1987. (b) The nomenclature in Ex.A2 would not be the decisive factor to assess the nature of the said document. (c) In Ex.A2, there is nothing to indicate and exemplify that the sale was completed strictly in accordance with Section 54 of the Transfer 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 suit notice. (e) In fact, the plaintiff abandoned his right, if any, in Ex.A2 and only as an afterthought he did choose to file the suit; it is not a mere case of withholding a part of the sale consideration after the sale having been completed, but here payment of the remaining part of the sale consideration alone was agreed to constitute a sale between the parties. (f) Subsequent to Ex.A2 for about eight years, the plaintiff did not choose to come forward to pay the remaining part of the sale consideration, so to say, Rs..65,000/- and get the sale concluded. (g) Both the Courts below were carried away by the fact that Ex.A2 refers to the term 'sale' and that it contains stereotyped clauses relating to sale. (h) Mere registration of Ex.A2 in no way passed on the title in the 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 fact that subsequent to Ex.A2, the plaintiff toiled and moiled like anything to get the tenants evicted so as to obtain possession from them. As such, the possession of the property contemplated under Ex.A2 at no point of time was handed over by the defendants to the plaintiff and in such a case, Ex.A2 niggard of delivery of possession in no way would enure to the benefit of the plaintiff to contend that under Ex.A2 there was a concluded contract of sale. Accordingly, the learned counsel for appellants/defendants citing precedents, would pray for setting aside the judgments and decrees of both the Courts below and for the dismissal of the original suit. 8. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel 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 be retained by the plaintiff, who is the buyer, that it does not mean that there was no concluded contract of sale under Ex.A2. (c) The recitals in Ex.A2 would exemplify and demonstrate the intention of the parties. Both the Courts below referring to the relevant clauses in Ex.A2 and other attending circumstances as stood exemplified 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 in this Second Appeal, the High Court could interfere, as otherwise, as against concurrent finding of facts, no Second Appeal could be entertained. (e) The plaintiff in commensurate with his averments in the plaint expressed his willingness to deposit the said sum of Rs.65,000/- which remained unpaid. However, the Court below did not permit him to deposit the said amount. The plaintiff got his feet sur-bated by frequenting the place of the defendants and demanding them to hand over possession, which evoked no positive response. As such mere delay of seven or eight years in filing the suit would not be detrimental to the claim of the plaintiff as per Article 65 of the Limitation Act. The suit has been filed within twelve years from Ex.A2. Accordingly, the learned counsel for the respondent/plaintiff would pray for dismissing the Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ 9. Indubitable and indisputable, or atleast the undeniable facts could tersely and briefly be set out thus: The plaintiff and the defendants entered into a sale transaction which they got embodied in the form of Ex.A2 dated 27.04.1987. Obviously and axiomatically, Ex.A2 would convey and portray that it is a sale deed. At this juncture, I would like to extract certain clauses from Ex.A2 : "NOW THIS DEED OF SALE WITNESSETH that in consideration of the above and the payment of Rs.1,15,000/- in the manner following:- Rs.15,000/- already received as aforementioned Rs.35,000/- paid at the time of the Registration of 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 discharging all the liabilities and monies borrowed by the VENDORS, within 6 months from this date. ........... THE VENDORS do hereby covenant with the PURCHASER that the Purchaser shall at all time hereafter peacefully and quietly possess and enjoy the said property and receive the rents and profits therefrom without anylet, hindrance or claim or demand whatsoever from the VENDORS or any other person or persons. ......... THE VENDORS do hereby declare and covenant with the PURCHASER that the said property is not subject to any mortgage, charge, lien, attachment, lispendens, or encumbrance in favour of any person and the Vendors declare that there is no defect of any kind in their title to the property hereby conveyed and covenant that the Vendors will indemnify the Purchaser against all losses or any such defects in the title of the Vendors to the property hereby conveyed or by reason of any of the representations contained in this Deed proving incorrect that the vendors and all persons equitably claiming through or under them shall and will from time to time and at all times hereafter do, execute and register or cause to be done executed and registered for further and more perfectly assuring the said property and every part thereof into the PURCHASER by way of absolute sale as by the PURCHASER shall be required at his cost. The VENDORS do hereby assure the purchaser that they have paid all https://hcservices.ecourts.gov.in/hcservices/ public charges and taxes, and other outgoing upto date payable to any public body or government in respect of the said property and that if any remain unpaid, the Purchaser may pay the same recover the same from the Vendors with costs. The VENDORS have handed over the title deeds, to the purchaser and been put the Purchaser in possession of the property making the tenants attorn to him." 10. Unarguably and unassailably, the plaintiff paid to the defendants a sum of Rs.15,000/- and another sum of Rs.35,000/- as found contemplated in sheet No.6 of Ex.A2. It is also an undeniable fact that the remaining sale consideration of Rs.65,000/- as contemplated in sheet No.6 of Ex.A2 so far was not paid by the plaintiff to the defendants. According to the learned counsel for the defendants, such non payment of Rs.65,000/- would come in the way of holding that there was a concluded sale as per Ex.A2. 11. Whereas, the learned counsel for the plaintiff would submit that the retention of Rs.65,000/- as contemplated under sheet No.6 of Ex.A2 in no way would cut at the validity of the sale as found embodied in Ex.A2. 12. The core question arises as to whether both the Courts below assessed Ex.A2 as per law. I would like to refer to the decisions cited on both sides. 13. The learned counsel for the appellants/defendants relied on the following decisions: (i) The decision of this Court reported in 2002(3) CTC 225 [Rajagopal and another v. Kaliaperumal]; certain excerpts from it would run thus: "11. Much relying on the following two decisions, the learned counsel for the appellants would urge that the title of the appellants in respect of the suit property has not passed to the respondent/plaintiff despite the execution and registration. In the said decision reported in Ananda Chandra Pradhan v. Nilakantha Tripathy and others, AIR 1972 Ori. 99 it has been held as follows: "Transfer of Property Act (1882), Section 54-Transfer of ownership-the passing of title on execution of a sale deed depends on the intention of the parties with which they have executed the sale deed. Such intention has to be gathered primarily from the recitals in the sale deed and if 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 sale deed prior receipt of consideration money actuated the vendor to execute the sale deed and it was found by a concurrent finding that there was no payment of consideration, title could not be said to have passed merely on the execution of the sale deed." ........ 12. In the instant case, in view of the facts and circumstances, this Court is of the considered view that the title of the appellants despite the execution and registration of the document has neither passed to the respondent nor can he seek for declaration of title to the suit property merely on the basis of execution and registration of Ex.A1, sale deed, when the balance of sale consideration as found under Ex.A1 was neither paid before the registration nor was tendered at the time of registration nor has the respondent/plaintiff any intention to 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 it would run thus: "22. There is yet another circumstance to show that title was intended to pass only after payment of full price. Though the sale deed recites that the purchaser is entitled to hold, possess and enjoy the scheduled properties from the date of sale, neither the possession of the properties nor the title deeds were delivered to the purchaser either on the date of sale or thereafter. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact the appellant, therefore sought a decree for possession of the suit properties from the respondents with mesne profits. If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant." 14. The learned counsel for the respondent/plaintiff relied on the following decision: (i) The decision of the High Court of Orissa reported in AIR 1996 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 with sale of immovable property. 'Sale' is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the property sold. No rights are left in the transferor. The essential elements of a sale are (i) the parties; (ii) the subject-matter; (iii) the transfer or conveyance; and (iv) the price or consideration. The word 'price' is used in its ordinary sense as meaning money only. It is used in the same sense as in Section 77 of the Indian Contract Act, 1872 (in short, the 'Contract Act'). As has been observed by the Supreme Court in Commissioner of Income-tax v. Motor and General Stores (P) Ltd., AIR 1967 SC 200 (sic), though 'price' is not defined in the Act, it is used in the same sense as in the Sale of Goods Act, 1930 (in short, the 'Sale Act'), and means the money consideration for the sale of goods The presence of a money consideration is an essential element in a transaction of sale. Price is the essence of a contract for sale, and unless price is fixed, there is no enforceable contract because if no price is named law does not imply, as in the case of a sale of goods, a contract to buy at a reasonable price. In all sales it is evident that price is an essential ingredient and that where it is neither ascertained nor rendered ascertainable the contract is void for incompleteness, and incapable of enforcement. If the consideration is not money, but some other valuable consideration, it may be an exchange or barter, but not a sale. The payment of price is not necessarily a sine qua non to the completion of the sale. If the intention is that property should pass on registration, the sale is complete as soon as the deed is registered, whether the price has been paid or not, and the purchaser is entitled to sue for possession although he has not paid the price. This is clear from the words of the section, 'price paid or promised or part paid or part promised'. If the price is not paid the seller cannot on that account set aside the conveyance. We can only sue for the price, and he will have a charge on the property for the unpaid purchase-money. This is a non-possessory charge in terms of Section 5(4)(b) of the Act. 7 .........Intention of the parties as to whether title to a particular property would pass only on payment of the consideration amount or it will pass independent of payment of the consideration amount has to be inferred from the recitals of the document itself. When the recitals of the document are clear and unambiguous on the point of passing of title and payment of consideration, the sole https://hcservices.ecourts.gov.in/hcservices/ criterion to gather intention of the parties is to depend on the recitals of the document itself. Where there is ambiguity and uncertainty as to the terms of the agreement between the parties concerning their intention, conduct of the parties, surrounding circumstances attending the case and evidence adduced on both sides have to be taken into consideration........" 15. Absolutely there is no quarrel over the proposition of law as found exemplified and highlighted supra relating to sale. Section 54 of the Transfer of Property Act has been interpreted in the judgment reported in AIR 1996 ORISSA 86 referred to supra. It is therefore crystal clear that for the purpose of holding that there is a concluded contract of sale, it is not necessary that there should have been full payment of the sale consideration by the buyer to the seller. On the other hand, if the buyer could from the recitals in the sale deed itself point out that he was permitted to retain a part of the sale consideration so as to compel certain performance of obligations by the seller, then such retention of the part of the sale consideration would not cut at the validity of the sale. In fact the judment of the Orissa High Court referred to supra would reiterate the said law point only. 16. I would also like to refer to Section 55(5)(b) of the Transfer of Property Act, wherein it could readily be seen that the law itself permits the parties to have an arrangement, in which, the buyer could retain out of the purchase money certain amount, so as to compel certain obligations to be performed by the seller in respect of the suit property. In this case, the above excerpt from Ex.A2, would exemplify and demonstrate, display and convey that the seller himself undertook that he would get his tenants evicted from the property concerned within six months and hand over possession of it to the plaintiff and and thereafter receive the remaining part of the sale consideration of Rs.65,000/- from the plaintiff as contained in sheet No.6 of Ex.A2. 17. I would like to point out that the tenor of the said clause is to the effect that the seller agreed to receive from the buyer the remaining part of the sale consideration on the seller performing his part of the obligation, so to say, getting the tenants evicted from the premises within a period of six months and handing over possession of it to the plaintiff. It is pellucidly and palpably clear that there was a period of lull, so to say for about seven or eight years during which period neither of the parties gave any notice to the other and now on the plaintiff's side it is being argued as though the plaintiff was orally making request to the defendants to perform their obligations under Ex.A2, so as to enable the 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 argued that virtually the plaintiff abandoned his right under Ex.A2 and that was why he kept quiet without paying the remaining part of the sale consideration As has been pointed out by the learned counsel for the plaintiff, the recitals in Ex.A2 should necessarily be considered for understanding the real purport of Ex.A2. I hark back to the following maxim: Verba generalia restringuntur ad habilitatem rei vel personam: General words must be interpreted to suit the subject matter or the person The words in a document should be interpreted reasonably and that should not be misinterpreted so as to pave the way for some absurd conclusions. The clauses extracted supra from Ex.A2 would connote and denote that the defendants virtually sold the property in favour of the plaintiff. Relating to payment of consideration is concerned, Ex.A2 contemplated three modes of payments and out of which two modes turned out to be fait accompli and the third mode, namely payment of Rs.65,000/- by the plaintiff to the defendants alone is now in question. Both parties entered into Ex.A2 in the cold light of the day and they were in the know of things. It is not as though the document is vitiated by any misunderstanding. 19. I recollect the maxims: (i) Non videntur qui errant consentire : They who err are not considered as consenting. (ii) Ubi jus ibi remedium : Where there is a right there is a remedy. Accordingly if viewed, it is clear from Ex.A2 that the defendants intended that Ex.A2 should be a sale deed in stricto sensu and there is no clause which could be equated to