Sale-Deed

2018 CLC 608 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 147Transfer of Property Act (IV of 1882), S.44Specific Relief Act (I of 1877), Ss.42 & 39Suit for declarationSale-deedCo-sharerPrivate and family partitionScopeKhewatScope

Contention of plaintiff was that he was owner in possession of suit land on the basis of private partition and impugned sale deed was executed beyond fractional share of defendant

Suit was dismissed concurrently

Validity

If a co-sharer was in possession of a particular survey number then he could alienate that land validly to another person provided it did not exceed his overall share in the Khewat

Co-sharer could not transfer the land from a particular Khewat beyond his share in the relevant Khewat

Plaintiff and defendant were real brothers and co-sharers in the suit land

Impugned sale deed was executed in excess of share of the vendor/defendant which was not sustainable and was liable to be set aside to that extent

Both the Courts below had failed to appreciate the evidence in its true perspective

Impugned judgments and decrees were result of mis-reading and non-reading of evidence

Khewat being a different entity, its share could not be amalgamated and converted into the other Khewat

Vendor was not competent to transfer the land beyond his share in the relevant Khewat

One could not be allowed to transfer the land of other share co-sharers, whether they were in possession or not

Co-sharer would be deemed to be in possession of every inch of joint land

Findings recorded by the Courts below were not maintainable in the eye of law

Private and family partition would be recognized only when same was affirmed by a Revenue Officer

Nothing was on record that family partition took place and was affirmed by the Revenue Officer

No party could claim any exclusive right on the basis of such possession due to family partition

Family arrangement for the purpose of cultivation would be considered for the convenience of co-sharer

Any such arrangement did not oust and exclude the ownership of other co-sharers from the relevant Khewat

Co-owner could only be excluded from a particular survey number by way of regular partition or private partition affirmed by the Revenue Officer

Co-sharer even in exclusive possession of a specific property could not be permitted to alienate or transfer such property which might change its joint character or otherwise damage the right of other co-owners

Co-sharer could alienate only his share not beyond that

Impugned judgments and decrees were also set aside

Sale deed executed in excess of share of vendor/defendant was also set aside

Second appeal was allowed in circumstances.

2015 CLC 994 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Transfer of Property Act (IV of 1882), S.54Qanun-e-Shahadat (10 of 1984), Art.103Registration Act (XVI of 1908), S.60Suit for declarationSale-deedExpression 'in exchange of a price'SaleIngredientsVendor an old and sick person alleging fraud or deceitUndue influenceEffectNo consideration amount was paid by the vendees to the vendor

Sale-deed was invalid for want of consideration and same was result of deceit and undue influence practised on the vendor

Possession of suit land was never delivered to the vendees by the vendor

If any of the ingredients of sale was missing, transaction would not fall within the definition of "sale"

Expression 'in exchange for a price' used in S.54 of Transfer of Property Act, 1882 was very significant

Price was an essential ingredient in a sale and no transaction of sale could be said to be completed in the eye of law unless price was fixed or paid or part paid and part promised

Any fact might be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law

False acknowledgment of receipt of price by a recital in a deed did not estop the seller from giving evidence as against the buyer that he had not received payment

Where a sale was effected through registered sale-deed wherein amount of consideration was mentioned, same could not be construed to be a "sale without consideration"

Party who had acknowledged the receipt of consideration in the sale-deed could show that he did not receive the same

Where vendor had admitted that he had executed sale-deed but alleged that same was under influence and without consideration, evidence to prove the same would be admissible

Rule of extrinsic evidence did not apply in such cases rather evidence to show the true nature of transaction was admissible

Vendor, in the present case, was suffering from high blood pressure and cardiac diseases and he was not having any independent advice at the time of alleged transaction of sale-deed

When there was allegation of fraud or deceit by an old man who had no independent advice and had been deprived of his valuable property by a document, onus would automatically shift upon the beneficiary to prove its contents

Court was not divested of powers to scrutinize the reasons and justifications for the impugned transaction of sale

Element of undue influence was not restricted to an illiterate Parda Nasheen lady rather it could prevail even on men in the particular circumstances of a case

Sale-deed in favour of defendants was got executed without consideration and under undue influence

Presumption of correctness was attached to the certificate endorsed on the sale-deed by the Registration Officer only for the purpose of proving that document had been duly registered

Presumption of correctness with regard to receipt of consideration by the vendor could only arise out of the admission made by him/her which could be contradicted by independent evidence

Vendees had failed to establish the payment of consideration amount and valid acknowledgement of its receipt in the sale-deed

Impugned sale was a sham and void transaction as not proved in accordance with law

Issues in civil cases had to be resolved on preponderance of evidence

Trial Court had failed to appreciate the evidence in its true perspective

Impugned judgment and decree passed by the Trial Court were based on misreading and non-reading of evidence, against law and fact, untenable and were liable to be set aside

Judgment and decree were set aside and suit was decreed

Appeal was accepted in circumstances.

2012 CLC 1871 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Void deedProof

When basic sale-deed was void, the subsequent sale-deed would also be void as when the basic document was not proved, and declared null and void; the whole structure, whatsoever, built upon it would automatically collapse.

2010 MLD 117 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.42 & 54Suit for declaration and permanent injunctionSale-deedRegistrationPresumption of truthScope

Plaintiffs filed suit for declaration and permanent injunction to the effect that the predecessor-in-interest of the defendants had sold disputed land to the plaintiffs and executed registered sale deed in their favour and that plaintiffs further purchased the additional land from the predecessor­in-interest of the defendant and had paid Rs.15,000 through cheque as consideration of the same

Defendants contested suit on the ground that in the alleged document there was a note to the effect that predecessor-in-interest of the defendants owned the entire property which was mentioned to have been sold to the plaintiffs, this according to the defendants was a forged addition and designed to deprive defendants to inherit the disputed property as legal heirs

Defendants further challenged the jurisdiction to entertain matter of demarcation

Trial Court decreed suit of the plaintiffs

Appeal filed against judgment and decree of Trial Court was also dismissed by Appellate Court

Validity

Disputed property was admittedly a residential property where plaintiffs had constructed a residential house and was occupying the same and it was nowhere alleged that same was agricultural land

Alleged note in the registered sale deed was in the same hand-writing and in the same sequence and it was a registered document which had a presumption of authenticity attached to it and that presumption was not rebutted by the defendants

Documentary evidence produced by plaintiffs was found more reliable, credible and plausible as compared to the evidence produced by defendants which mainly consisted of oral assertions unsubstantiated by documentary evidence

Defendants had failed to show that lower courts below had misread .or failed to read any piece of evidence or acted illegally or with material irregularity

Revision petition was dismissed.