VIDYADHAR versus MANIKRAO AND ANR.

Citation: [1999] 1 S.C.R. 1168 · Decided: 17-03-1999 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Cited by 9 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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A 
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VIDYADHAR 
"' 
v. 
MANIKRAO AND ANR. 
l 
MARCH 17, 1999 
B 
[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] 
cl 
Civil Procedure Code, 1908 : 
Order 8--Def endant can raise any legi.timate plea available to him 
c under the law to defeat the suit of the plaintiff. 
Order 16 Rules 1(3) & I-A-Rule 1-A not in derogation of Rule 
1 (3 )-Witnesses-A party may bring witnesses even without applying for court 
summons-But leave of the court has to be procured before proceeding to 
examine such witnesses. 
D 
r 
Section 100--:-Second appeal-Scope of power of the High Court under. 
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Transfer of Property Act, 1882: 
Section 54: 
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Sale of immovable property-Non payment or part-payment of sale 
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consideration-Plea that sale deed was fictitious, collusive, void, not intended 
to be acted upon-Held, can be raised also by a defendant who was a 
stranger to the sale deed-It would depend upon the pleadings of the parties 
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to the suit, nature of the deed, evidence led by the parties and other cir-
cumstances. 
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Consideration--"Price paid or promised or part paid and part-
promised"-Held, actual payment of full price at the time of execution of sale 
deed is not a sine qua non for completion of sale-Real test is the intention 
G of parties. 
Section 55(4)(b)-Doctrine of Equitable lien-If ownership of the 
property is transf e"ed to the buyer before the payment of the entire sale 
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price-Held, vendor is entitled to a charge on that property for the amount of 
sale price as also interest thereon-Such charge provides the vendor the right 
H to enforce the charge by way of filing a suit but does not entitle the seller to 
1168 
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VIDYADHAR v. MANIKRAO 
1169 
retain the property as against the buyer. 
Section 58(c), proviso-Mmtgage by conditional sale-Detemiination 
of whether the transaction is an out and out sale or morlgage-Docwnent 
styled as 'Kararkharedi' executed by Defendant No. 2 inf avour of defendant 
No. 1 for a sum of Rs. 1500 with the stipulation that if the entire amount is 
retumed to Defendant No. 1 before a specified date, the property to be 
reconveyed to Defendant 2-Held, deed must be treated as a 11101tgage by 
conditional sale. 
A 
B 
Evidence Act, 1872-Section 114 Explanation (g)-Presumption of 
adverse inf erence-lf a pwty to the suit abstains from ente1ing the witness box, 
C 
an adverse inference would wise agai11St him. 
Deeds and docwnent~Inte1pretatio11 of-The real test is the intention 
of the parlies under the deed or document~The intention is to be gathered 
from the recital in the sale deed, conduct of the parlies and the evidence 011 D 
record. 
Words and phrase~Words ''p1ice paid or promised or pan paid and 
pwt-promised''--Mem1ing of-In the context of Section 54 of the Act. 
Defendant No. 2, owner of a plot of land, executed a document styled 
as "Kararkharidi" in favour of defendant No. 1 for a sum of Rs. 1500 and 
handed over possession to him. There was a stipulation in the document 
that ifthe entire amount of Rs. 1500 was returned to defendant No.1 before 
15.3.1973, the property would be given back to defendant No. 2. This land 
E 
was subsequently transferred by defendant No. 2 in favour of the. plaintiff F 
for a sum of Rs. 5000 by a registered sale dated 19.6.1973. After having 
obtained the sale deed, the plaintiff filed a suit in which it was given out that 
defendant No. 2 had offered the entire amount to defendant No. 1 but he 
latter did not accept the amount and, therefore, defendant No. 2 had to send 
it by money order on 7.6.1973 which was refused by defendant No. 1. A notice 
dated 5.6.1973 had also been sent by defendant No. 2 to defendant No. 1 G 
pleading that since the document executed by defendant No. 2 in favour of 
defendant No.1, was a mortgage by conditional sale, the property was liable 
to be redeemed. In the alternative, it was also pleaded that if it was held by 
the Court that the document did not create a mortgage but was an out and 
?ut sale, the plaintiff as transferee of defendant No. 2, \\'.as entitled to a H 
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1170 
SUPREME COURT REPORTS 
(1999] 1 S.C.R. 
A decree for reconveyance of the property as defendant No. 2 had already 
" 
offered the entire amount of sale consideration to defendant No. 1 which 
was refused by defendant No. 1 and which amount the plaintiff was still 
prepared to offer to defendant No. 1 and also otherwise ready and willing to 
perform his part of the contract. defendant No. 2 admitted the whole claim 
B 
of 

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