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TMI Blog2010 (10) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... as post-dated cheques dated 23.7.2006 and 10.8.06 paid as part of the sale consideration were returned uncashed/dishonoured. It is contended in the plaint that Defendant has agreed to purchase the property mentioned in the sale deed for ₹ 2,28,12,500/-. Plaintiff has executed a sale deed dated 22.6.2006 in favour of the Defendant for a total consideration of ₹ 2,28,12,500/-. In consideration of the sale deed towards the price money of the land sold, Defendant has handed over three cheques to the Plaintiff, details of which are as under.- Sr No Amount Cheque No. Date Drawn on a. ₹ 91,25,000 925001 23.06.2006 Citibank NA b. ₹ 75,28,125 925004 23.07.2006 Citibank NA c. ₹ 61,59,375 925003 10.08.2006 Citibank 5. One cheque dated 23.6.2006 for ₹ 91,25,000/- was cleared on presentation and other two che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that for a valid contract, sale consideration must be passed and if sale consideration is not passed, then contract/sale would be void in view of Section 25 of the Indian Contract Act. He has placed reliance on the judgment of the Bombay High Court in the matter of New India Assurance Co. Ltd. v. Sau Anjanabai Parashram Jadhav and Ors. AIR 2006 Bom 343 (Bombay), judgment of the Single Judge of the Rajasthan High Court reported in the matter of Prahlad and Ors. v. Laddevi and Ors., AIR 2007 Raj. 166 and on the judgment of the learned Single Judge of this Court in the matter of Sheo Diyal v. Om Parkash alia Dhualia 1992 101 PLR 102. Mr. Jain further argued that since sale-deed is void for want of full consideration, hence there, is no need to seek relief for cancellation. Mr. Jain further contended that Plaintiff has Stated in the plaint that he is in possession. The issue whether Plaintiff is in possession or not shall be decided in a suit. However, at this stage, contents of the plaint should be taken into consideration for the purposes of deciding the issue of ad valorem Court fee. According to him, when Plaintiff is seeking simpliciter declaration, he is not supposed to pay ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff in the suit. Where the main relief is that of the cancellation of the deed, and the declaration if any, is only a surplusage, the case would not be covered under Section 7(iv)(c) of the Act. Because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary. 13. In the plaint, Plaintiff has stated that he has executed the sale deed in favour of the Defendant on 22.6.2006 for the consideration of ₹ 2,28,12,500/- and has received three cheques as mentioned in paragraph 3 of the plaint and as observed hereinabove while giving the facts of the case. 14. From the perusal of the plaint, this Court is of the view that the Plaintiff has filed suit to annul the sale deed on the ground that the Defendant has not paid entire sale consideration and has cheated the Plaintiff by not paying entire consideration. Copy of the sale deed is also placed on record and there is a recital in the sale deed in paragraph 6(e), which reads as under: That this Sale Deed is executed in all its entirety and the vendors have received all and full consideration of the said land from the vendee and further the vendors admit and confirm th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be garnered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of Evidence Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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