SEEDLING SCHOOL OF LAW AND GOVERNANCE

JAIPUR NATIONAL UNIVERSITY, JAIPUR

IN THE DISTRICT COURT OF ANNA PRADESH

IN THE MATTER OF:

LAL SINGH V. JAYANTI AND ORS.

PLAINTIFF DEFENDANT

IN THE CASE CONCERNING REJECTION OF PLAINT

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT

SUBMITTED TO: SUBMITTED BY:

DR. JYOTSNA YADAV MS. MAHIMA SHREE

ASSISTANT PROFESSOR, SSLG BA. LL.B (5TH SEMESTER)

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TABLE OF CONTENTS

Table of Contents 2
List Of Abbreviations 3
Index Of Authorities 5
Statement Of Jurisdiction 6
Statement Of Facts 6
Issues For Consideration 8
Summary of arguments 9
Written Submission 10
PRAYER 14

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LIST OF ABBREVIATIONS

AWC Allahabad Weekly Cases

SCC Supreme Court Cases

St. State

AIR All India Reporter

CPC Code of Civil Procedure

u/s Under Section

Ors. Others

SC Supreme Court

LJ Law Journal

Cal Calcutta

WN Weekly Notes

v. Versus

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 INDEX OF AUTHORITIES

STATUTES:

The Transfer of Property Act, 1882

The Limitation Act, 1963
The Code of Civil Procedure,1908

CASES:

Dahiben vs. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366

Vidyadhar v. Manikrao & Anr, (1999) 3 SCC 573
Gyatri Prasad v. Board of Revenue and Ors (1973) Allahabad Law Journal 412
Sukaloo and Anr. v. Punau AIR 1961 MP 176
Kaliaperumal vs. Rajagopal & Anr.2009 (4) SCC 193
Rajendra Prakash vs Smt. Babita Gupta Alias Pratiba 2000 (3) AWC 2253
Kashidas v. Chaithuru, (1913) 19 Cal LJ 289
Ghosh v. Rohini (1908) 13 Cal WN 692
Raj Nath Singh v. Paltu and others. 1908 All U 96
State Of Punjab And Ors vs Gurdev Singh, Ashok Kumar 1991 AIR 2219

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 STATEMENT OF JURISDICTION

The counsel on the behalf of the defendants most humbly and respectfully submits to the
jurisdiction sought by plaintiff u/s 9 of CPC, 19081.

1 S.9 of CPC, 1908: jurisdiction to try all suits of civil nature.

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 STATEMENT OF FACTS

1) That in the village Rudrapur in district Aana Pradesh, Lal singh was having the possession of
agricultural land measuring approximately 9000 sq. Meters, which was under restrictive tenure.

2) That Lal singh wanted to sell the property and on the other side he luckily found the purchaser
also as Mr. Jayanti was ready and willing to buy the property at the government rates of the year.
Mr. Lal filed the application before the District Collector to take the permission for selling the
property to the said purchaser on the 13 September 2001.

3) That the concerned District Collector verified the application and gave permission to sell the
property on October 2002 and fixed the sale price as 1500/- per sq. mtr. The permission was
granted on fulfilling the terms and conditions prescribed by the Revenue code.

4) That the property was sold to the purchaser and the sale deed was registered dated 11 November
2002. The purchaser issued 27 cheques for the payment to the seller of the property.

5) That After this the purchaser also sold the property to Neel and Virat for the sale consideration of
2,03,00,000. The sale deed was registered on 10 May 2008.

6) That On 2 February 2010, Lal singh filed a civil suit in Principle Civil court of the district
against Mr. Jayanti, Neel and Virat, that the sale deed 11 November 2002 should be declared illegal,
void, and not enforceable on any of the parties and he contended the ground for the cancellation of
the sale deed that the sale consideration was not paid in full as decided by the Collector and only the
part payment was done. Plaintiff contends in further that being not literate, he was unable to realise
the fact about the sale consideration while making the thumb impression on the sale deed and also
pleads to declare the subsequent sale deed as illegal and prays to the court to grant the possession of
the property to him.

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 ISSUES FOR CONSIDERATION

-I-

WHETHER THE PART NON-PAYMENT OF THE SALE DEED CAN BE THE

GROUND FOR CANCELLATION OF REGISTERED SALE DEED?

-II-

WHETHER THE SUIT IS MAINTAINABLE OR NOT, STATE THE GROUNDS?

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 SUMMARY OF ARGUMENTS

1) THE PART NON-PAYMENT OF THE SALE DEED CAN NOT BE THE GROUND
FOR CANCELLATION OF REGISTERED SALE DEED.

It is most humbly submitted before the court that the part non-payment of the sale deed
cannot be the ground for cancellation of registered sale deed under Section 54 of the Transfer
of Property Act, 18822.

2) THE SUIT IS NOT MAINTAINABLE.

It is most humbly submitted before the court that the present suit is not maintainable before
the court according to articles 58 3 and 594 of the limitation act and shall be rejected on the
ground of order VII rule 11(d)5 of Code of Civil Procedure,1908.

2 Section 54 of TPA,1882: sale defined

3 Section 58 of Limitation Act: provides for the period of limitation to file a suit to obtain any other declaration.
4 Section 59 of Limitation Act: To cancel or set aside an instrument or decree or for the rescission of a contract
5 Order VII rule 11(d): rejection of plaint on account of being barred by law.
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 WRITTEN SUBMISSION

1) THE PART NON-PAYMENT OF THE SALE DEED CAN NOT BE THE GROUND
FOR CANCELLATION OF REGISTERED SALE DEED.

It is most humbly submitted before the court that the part non-payment of the sale deed
cannot be the ground for cancellation of registered sale deed under Section 54 of the Transfer
of Property Act, 1882.

1.1) Part-payment not a ground for cancellation:

Under Section 54 of the Transfer of Property Act, 1882 ‘sale’ is defined as a transfer of
ownership in exchange for a price paid or promised or part-paid and part-promised and hence
as the definition of sale itself clearly specifies that ‘part-paid’ also comes under the ambit of
sale, it cannot in any ways be considered a ground for cancellation of sale deed.

The recent case of Dahiben vs. Arvindbhai Kalyanji Bhanusali 6 has categorically held that
non-payment of a part of sale consideration does not make the registered Sale Deed void nor
does it constitute a valid ground for its cancellation. It is common knowledge that in Real
Estate transactions, cheques are given as a part of sales consideration at the time of execution
of sale-deed, which are duly mentioned in the said sale-deed.

The definition of sale indicates that there must be a transfer of ownership from one person to
another i.e. transfer of all rights and interest in the property, which was possessed by the
transferor to the transferee. The transferor cannot retain any part of the interest or right in the
property, or else it would not be a sale. The definition further indicates that the transfer of
ownership has to be made for a price paid or promised or part paid and part promised.
In the case of Vidyadhar v. Manikrao & Anr 7 the Court held that the words price paid or
promised or part paid and part promised indicates that actual payment of the whole of the
price at the time of the execution of the Sale Deed is not a ‘sine qua non’ for completion of
the sale. Even if the whole of the price is not paid, but the document is executed, and
thereafter registered, the sale would be complete, and the title would pass on to the transferee
under the transaction.
Hence, the title has been passed on to the defendants already and Mr. Lal Singh does not hold

6Dahiben vs. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366

7 Vidyadhar v. Manikrao & Anr, (1999) 3 SCC 573
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any title of the property and hence the plea of cancellation of sale deed stands vague and
unreasonable.

There is a catena of decisions of various High Courts in which it has been held that even if
the whole of the price is not paid, the transaction of sale will take effect and the title would
pass under that transaction. A few of them are-

● Gyatri Prasad v. Board of Revenue and Ors 8. it was held that non-payment of a

portion of the sale price would not effect validity of sale. To the same effect is the
decision of the Madhya Pradesh High Court in Sukaloo and Anr. v. Punau9.

● Kaliaperumal vs. Rajagopal & Anr.10, wherein the Apex Court considered the present

issue and held: It is now well settled that payment of entire price is not a condition
precedent for completion of the sale by passing of title, as Section 54 of Transfer of
Property Act, 1882 defines sale as a transfer of ownership in exchange for a price paid
or promised or part paid and part promised.

● Rajendra Prakash vs Smt. Babita Gupta Alias Pratiba11, wherein the Allahabad High

Court was seized of a similar matter. A deed of sale was registered by the plaintiff in
favour of the defendant in consideration of a sum of Rs. 1,25,000 paid by cheque
without any payment by cash. The cheque was dishonoured by the bank on the ground
of insufficient fund. The plaintiff requested the defendant as well as by notice sent
under registered post asking the defendants either to pay the consideration or to get
the sale deed declared illegal and void.The defendant did not pay any amount nor did
take any steps for declaration of the sale deed void. It was claimed on behalf of the
plantiff that the impugned sale deed being without consideration conferred no title to
the defendant since the same is void, illegal and in-operative and not binding. On
behalf of the defendant, it was contended that in view of Section 54 of the Transfer of
Property Act, 1882, even if the consideration is not paid, the sale deed would not
become void if there is an intention to convey the property between the parties. The
only remedy open to an aggrieved vendor is to sue for recovery of the consideration.

8 Gyatri Prasad v. Board of Revenue and Ors (1973) Allahabad Law Journal 412
9 Sukaloo and Anr. v. Punau AIR 1961 MP 176
10 Kaliaperumal vs. Rajagopal & Anr.2009 (4) SCC 193
11 Rajendra Prakash vs Smt. Babita Gupta Alias Pratiba 2000 (3) AWC 2253
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 ● Kashidas v. Chaithuru12,and Ghosh v. Rohini (1908)13 have held more than a century

ago in case of a sale, if the intention of the parties is that the property would pass on
registration, the sale is complete as soon the deed is registered whether the price has
been paid or not. Same view has been taken in the case of Raj Nath Singh v. Paltu and
others,14 where it was held that non-payment of consideration would not invalidate the
deed of sale.

1.2) Intention:

In the case of Vidhyadhar v. Mankikrao and another15it was held as follows: The real test is
the intention of the parties. In order to constitute a sale, the parties must intend to transfer the
ownership of the property and they must also intend that the price would be paid either in
praesenti or in futuro. The intention is to be gathered from the recital of the sale deed,
conduct of the parties and the evidence on record.

It was observed in the case of Gyatri Prasad v. Board of Revenue and Ors 16. that part payment
of consideration by vendee itself proved the intention to pay the remaining amount of sale
price.

In the present case-

● Mr. Lal Singh wanted to sell the property and on the other side he luckily found the

purchaser also as Mr. Jayanti was ready and willing to buy the property, this shows
the intention of parties and conduct thereto.

● Also Mr. Jayanti gave 27 cheques as a sale deed consideration this proves his

intention to buy the property and pay the price and Mr. Lal’s agreement to the same
marks his intention to sell the same.

With the above mentioned contentions, it is evident that part-payment is no valid ground for
cancellation of a sale deed.

12 Kashidas v. Chaithuru, (1913) 19 Cal LJ 289

13 Ghosh v. Rohini (1908) 13 Cal WN 692
14 Raj Nath Singh v. Paltu and others. 1908 All U 96
15 AIR 1999 SC 1341
16 Supra
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2) THE SUIT IS NOT MAINTAINABLE.

It is most humbly submitted before the court that the present suit is not maintainable before
the court according to articles 58 and 59 of the limitation act.

The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and
applications.
--Section 2(j)17 defines the expression “period of limitation” to mean the period of limitation
prescribed in the Schedule for suits, appeals or applications.
-Section 318 lays down that every suit instituted after the prescribed period, shall be
dismissed. The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is
three years, which commences from the date when the right to sue first accrues.

In the case of State of Punjab and Ors. vs Gurdev Singh, Ashok Kumar 19 it was held that-
Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to
be barred by any law, the plaint shall be rejected. In the present case the time period has
exceeded and hence it comes under the purview of rejection of plaint under order VII rule
11(d), i.e. barred by law.

It was held in the case of Dahiben v. Arvindbhai kalyanji bhanusali 20 (Gajra)(D) Thr Lrs &
Ors that the provision of Order VII Rule 11 is mandatory in nature. It states that the plaint
“shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the
Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any
law, the Court has no option, but to reject the plaint. In the same case the plaint was rejected
under order VII rule 11(d).

Hence from the above cited contentions and judgements it becomes evident that the present
suit is not maintainable in the court of law as it is barred by law.

17 Section 2(j) of Limitation Act: defines the expression “period of limitation

18 Section 3 of Limitation Act: every suit instituted after limitation shall be barred.
19 State Of Punjab And Ors vs Gurdev Singh, Ashok Kumar 1991 AIR 2219
20 Supra
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 PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities

cited it is most humbly and respectfully prayed before this court to be graciously pleased to:

I. PASS any order holding the plaint to be rejected.

And pass any other order the Hon’ble court may deem fit in the interest of justice, equity and

good conscience.

MOST RESPECTFULLY SUBMITTED ON BEHALF OF THE DEFENDANTS;

SD-/

COUNSELS FOR THE DEFENDANT

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