KEWAL KRISHAN versus RAJESH KUMAR & ORS. ETC

Citation: [2021] 11 S.C.R. 588 · Decided: 22-11-2021 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
588
SUPREME COURT REPORTS
[2021] 11 S.C.R.
588
KEWAL KRISHAN
v.
RAJESH KUMAR & ORS. ETC.
(Civil Appeal Nos. 6989-6992 of 2021)
NOVEMBER 22, 2021
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Transfer of Property Act: s.54 – Case of plaintiff-appellant
was that he had executed a power of attorney in favour of his brother
– Acting on the basis of power of attorney, his brother executed two
sale deeds – The first sale deed was executed in favour of his sons
and the other in favour of his wife – Plaintiff filed two suits – One
was against his brother and his minor sons and the other was against
his brother and his wife – Defence of defendant-brother was that
he was in muscat and earning well and remitting money to his brother
to purchase properties in his name – However, while purchasing
the properties, plaintiff had got his name incorporated as joint
purchaser – Trial court accepted the case of defendant and
dismissed the suit – First appellate court partly allowed the appeal
holding that both the brothers were joint purchaser – High Court
upheld the view that both the brothers were joint owners of suit
properties and the suits for declaration of invalidty of the sale deeds
were barred by limitation and the sale considerations mentioned in
the sale deeds executed in 1981 of Rs.5500 and Rs.6875 were not
exhorbitant and the amounts were not out of reach of the sons and
wife of defendant-brother – On appeal, held: The modified decree
passed by High Court on the basis of the finding that the plaintiff
and defendant-brother were the joint owners of the suit properties
as the defendant-brother failed to establish his claim that he was
the sole owner of the suit properties – Defendants did not challenge
the impugned judgment and therefore, the finding that the plaintiff
and defendant-brother were the joint owners of the suit properties
has become final – Admittedly, there is no evidence adduced on
record by defendant-brother that his minor sons and his wife had
any source of income at the relevant time and that they paid him
consideration as mentioned in the sale deed – There is a categorical
finding recorded by trial court that defendant-brother by taking
[2021] 11 S.C.R. 588
A
B
C
D
E
F
G
H
589
advantage of the power of attorney, transferred the suit lands to
his own minor sons and his wife without any consideration – High
Court did not disturb the finding recorded by trial court regarding
the failure of the defendants to adduce evidence regarding the
payment of consideration under the sale deeds – High Court merely
observed that the sale consideration of Rs.5,500/- and Rs.6,875/-
was not exorbitant and was not out of reach of minor sons and wife
– High Court ignored that it was considering a case of sale deeds
of the year 1981 and that the purchasers under one of two sale
deeds were minor and it was not even pleaded that they had any
source of income – The same was the case with the sale deed executed
in favour of his wife – Thus, defendants-respondents failed to
adduce any evidence to prove that the minor sons and wife had any
source of income and that they had paid the consideration payable
under the sale deed.
Transfer of Property Act: s.54 – Sale without consideration –
A sale of an immovable property has to be for a price – The price
may be payable in future – It may be partly paid and the remaining
part can be made payable in future – The payment of price is an
essential part of a sale covered by s.54 of the TP Act – If a sale
deed in respect of an immovable property is executed without
payment of price and if it does not provide for the payment of price
at a future date, it is not a sale at all in the eyes of law – Therefore,
such a sale will be void – It will not effect the transfer of the
immovable property – It is the specific case made out in the plaints
as originally filed that the sale deeds are void as the same are without
consideration – It is pleaded that the same are sham as the purchasers
who were minor sons and wife had no earning capacity – No
evidence was adduced by defendant-brother about the payment of
the price mentioned in the sale deeds as well as the earning capacity
at the relevant time of his wife and minor sons – Hence, the sale
deeds will have to be held as void being executed without
consideration – Hence, the sale deeds did not affect in any manner
one half share of the appellant in the suit properties – In fact, such
a transaction made by defendant-brother of selling the suit propert

Excerpt shown. Read the full judgment & AI analysis in Lexace.