Contract of sale

No party is debarred under Art.102 of Qanun-e-Shahadat, 1984, from producing oral evidence to prove that price or a part there from has not actually been paid for payment of price or part thereof is not term of a contract but is only a recital of a fact in an instrument

Party cannot be allowed under Art.102 of Qanun-e-Shahadat, 1984, to lead oral agreement or statement to contradict, vary, add or subtract terms of agreement which was reduced into writing but since recital of a fact in a document showing payment of price or part thereof is not term of contract and a party may be allowed to prove that acknowledgment of sale price and subsequent endorsement on sale deed was incorrect and the vendee had not indeed paid the price to him.

Since a contract of sale does not create any right and or an interest in immovable property, therefore, suit for declaration on the basis thereof is not maintainable under S.42, the Specific Relief Act. 1877.

In absence of proof that sale consideration was received by the vendor, there was no sale in the eyes of law.

Plaintiff approached Civil Court through declaratory suit aiming cancellation of registered sale deed as well as its implementing mutation asserting that the suit area was mortgaged to defendants for a term of five years but they managed registration of sale deed within just ten days of the attestation of mortgage mutation and that he was an illiterate and advanced age seriously ill person

Validity

Illiteracy, advanced age and serious illness of the plaintiff was not disputed

Burden to prove the contents of document, in addition to proof of execution and ingredients of the transaction couched therein, was on the defendants, being beneficiaries

In order to prove that a transaction was sale, the passing of price or its promise had to be contemplated and in absence thereof, mere registration of document to that effect did not operate to pass title to the beneficiary

Marginal witnesses of the sale deed and Deed Writer admitted that the consideration was not paid before them

High Court observed that in the absence of proof that sale consideration was received by the vendor, there was no sale in the eyes of law

Revision petition was dismissed, in circumstances.

Ingredients for contract of sale were "offer", "acceptance" and "consideration".

Section 54 of Transfer of Property Act, 1882 had provided that a contract for sale of immovable property was a contract exhibiting that sale of such property would take place on terms settled between the parties

It would not, by itself, create any interest in or charge on such property.

S. 27-Contract of sale-Specific performance-Sale allegedly having to be made by all three vendors, having separate shares in relevant Khasra numbers-Price nevertheless alleged to be paid or promised to be paid to all vendors in lump sum-Not known in circumstances as to in what proportion or to which extent each vendor had to receive or share same - Contract against one of vendors having fallen through due to such vendor being not a signatory of agreement although alleged to have received advance money alongwith others, contract as such remains one individual contract - Transaction resultantly must stand or fall as a whole-Price of contract being not capable of befurcation, contract, held, not capable of specific performance.

Expressio unius est exclusio alterius (the mention of one is the exclusion of another) -Contract of sale- P' Damages on account of re-sale (on breach of contract) although A, not specifically provided yet at same time no express exclusion of same mentioned in contract-Maxim, held, not applicable.

Contract of sale-Rescission-Time essence of contract-Failure of promisor to perform his part of contract within given time Contract becomes voidable-Party rescinding contract in exercise of option granted by S. 64

Express or immediate communication of rescission not compulsory.