KEWAL KRISHANversusRAJESH KUMAR & ORS. ETC

588                      [2021]REPORTS
               SUPREME COURT   11 S.C.R. 588               [2021] 11 S.C.R.


A                              KEWAL KRISHAN
                                        v.
                        RAJESH KUMAR & ORS. ETC.
                      (Civil Appeal Nos. 6989-6992 of 2021)
B
                             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
C     – 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
D     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
E     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
F     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
G     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
H     finding recorded by trial court that defendant-brother by taking

                                       588
         KEWAL KRISHAN v. RAJESH KUMAR & ORS. ETC.                          589


advantage of the power of attorney, transferred the suit lands to           A
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/-
                                                                            B
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              C
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           D
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,   E
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                   F
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      G
a transaction made by defendant-brother of selling the suit properties
on the basis of the power of attorney to his own wife and minor
sons is a sham transaction – It was not necessary for the plaintiff to
specifically claim a declaration as regards the sale deeds by way of
amendment to the plaint – The reason being that there were specific         H
590            SUPREME COURT REPORTS                      [2021] 11 S.C.R.


A     pleadings in the plaints as originally filed that the sale deeds were
      void – A document which is void need not be challenged by claiming
      a declaration as the said plea can be set up and proved even in
      collateral proceedings – Hence, the issue of bar of limitation of the
      prayers for declaration incorporated by way of an amendment does
      not arise at all – As no title was transferred under the said sale
B
      deeds, the plaintiff continues to have undivided half share in the
      suit properties – Decree passed by trial court that the plaintiff is
      entitled to joint possession of the suit properties along with his
      defendant-brother is restored.
            Allowing the appeals, the Court
C
            HELD:1. There is a specific finding recorded by the District
      Court that there was no evidence adduced to show that Sudarshan
      Kumar’s wife and minor children paid consideration as shown in
      the sale deeds. In fact, before the District Court, it was pleaded
      that Sudarshan Kumar’s wife had brought some money from her
D     parents. The District Court held that no evidence was adduced
      to prove the said contention. Therefore, there is a categorical
      finding recorded by the District Court that Sudarshan Kumar, by
      taking advantage of the power of attorney, transferred the suit
      lands to his own minor sons and his wife without any consideration.
E     The High Court has not disturbed the finding recorded by the
      District Court regarding the failure of the respondents to adduce
      evidence regarding the payment of consideration under the sale
      deeds dated 10 th April 1981. The 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 Sudarshan Kumar’s sons
F     and wife. Perhaps, the High Court has 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 sons of
      Sudarshan Kumar and it was not even pleaded that they had any
      source of income. The same is the case with the sale deed
G     executed by Sudarshan Kumar in favour of his wife. Thus,
      undisputed factual position is that the respondents failed to adduce
      any evidence to prove that the minor sons and Sudarshan Kumar’s
      wife had any source of income and that they had paid the consideration
      payable under the sale deed. [Para 14][597-H, 598-A-F]

H
         KEWAL KRISHAN v. RAJESH KUMAR & ORS. ETC.                          591


       2. A sale of an immovable property has to be for a price.            A
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 section 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
                                                                            B
of price at a future date, it is not a sale at all in the eyes of law. It
is of no legal effect. Therefore, such a sale will be void. It will
not effect the transfer of the immovable property. [Para 15]
[598-A-F]
      3. Now, coming back to the case in hand, both the sale deeds
record that the consideration has been paid. That is the specific           C
case of the respondents. 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 of Sudarshan
Kumar had no earning capacity. No evidence was adduced by                   D
Sudarshan Kumar 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          E
by Sudarshan Kumar of selling the suit properties on the basis of
the power of attorney of the appellant to his own wife and minor
sons is a sham transaction. Thus, the sale deeds will not confer
any right, title and interest on Sudarshan Kumar’s wife and
children as the sale deeds will have to be ignored being void. It           F
was not necessary for the appellant to specifically claim a
declaration as regards the sale deeds by way of amendment to
the plaint. The reason being that there were specific pleadings in
the plaints as originally filed that the sale deeds were void. A
document which is void need not be challenged by claiming a
declaration as the said plea can be set up and proved even in               G
collateral proceedings. Hence, the issue of bar of limitation of
the prayers for declaration incorporated by way of an amendment
does not arise at all. As no title was transferred under the said
sale deeds, the appellant continues to have undivided half share
in the suit properties. That is how the District Court passed the           H
592            SUPREME COURT REPORTS                          [2021] 11 S.C.R.


A     decree holding that the appellant is entitled to joint possession
      of the suit properties along with Sudarshan Kumar. The decree
      passed by the District Court deserves to be restored. [Paras 16,
      17][599-E-H; 600-A-D]
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6989-
B     6992 of 2021.
            From the Judgment and Order dated 12.05.2015 of the High Court
      of Punjab and Haryana at Chandigarh in Regular Second Appeal Nos.
      1930 and 1931 of 1988 (O&M), and Order dated 11.08.2015 in R.A.
      No.54-C of 2015 in Regular Second Appeal No.1930 of 1988 (O&M)
C     and Order dated 19.08.2015 in R.A. No.55-C of 2015 in Regular Second
      Appeal No.1931 of 1988 (O&M).
             Neeraj Kr. Jain, Umang Shankar, Nirmal Singh Berchiwal, Advs.
      for the Appellant.
           Surjeet Singh, Sr. Adv., Roshan Lal Sharma, K. G. Bhagat, Vineet
D     Bhagat, Ms. Archna Midha, Ms. Manju Bhagat, Advs. for the
      Respondents.
            The Judgment of the Court was delivered by
            ABHAY S. OKA, J.
E           Leave granted.
            FACTUAL ASPECTS
             1. The appellant Kewal Krishan and his elder brother (one of the
      respondents) Sudarshan Kumar acquired the properties which are the
      subject matter of these appeals (for short “the suit properties”) under
F     the sale deeds dated 12th August 1976 and 19th October 1976.
             2. The appellant Kewal Krishan executed a power of attorney in
      favour of Sudarshan Kumar on 28th March 1980. Acting on the basis
      ofthe said power of attorney, two sale deeds were executed by Sudarshan
      Kumar on 10th April 1981. The first sale deed was executed by him by
G     which he purported to sell a part of the suit properties to his minor sons.
      The sale consideration was shown as Rs.5,500/-. The other sale deed
      was executed by Sudarshan Kumar in favour of his wife in respect of
      remaining part of the suit properties. The consideration shown in the
      sale deed was of Rs.6,875/-. The respondents are Sudarshan Kumar,
H     his wife and his sons.
         KEWAL KRISHAN v. RAJESH KUMAR & ORS. ETC.                              593
                    [ABHAY S. OKA, J.]

        3. Two separate suits were instituted by the appellant on               A
10th May 1983. One was against Sudarshan Kumar and his two sons
and the other one was against Sudarshan Kumar and his wife. Both the
suits, as originally filed, were for injunction restraining the defendants
from interfering with the possession of the appellant and from alienating
the share of the appellant in the suit properties. In the alternative, a
                                                                                B
prayer was made for passing a decree for possession. On 23rd November,
1985, the plaint in both the suits was amended by incorporating the relief
of declaration that the power of attorney and sale deeds were null and
void. A prayer was also incorporated for a money decree for the share
of the appellant in the compensation awarded in respect of a tube well
on the suit properties.                                                         C
        4. Sudarshan Kumar contested the suit along with other
respondents. It is the case of Sudarshan Kumar that he was employed
in Muscat and was earning a large income. It is the further case of
Sudarshan Kumar that at the relevant time, the appellant was
unemployed. From time to time, he remitted amounts to the appellant             D
from his own earnings. Sudarshan Kumar had negotiated for purchasing
the suit properties. According to his case, the suit properties were to be
purchased only in his name. His contention is that while getting the sale
deeds executed on 12th August 1976 and 19th October 1976, the appellant
got his name incorporated as a purchaser along with Sudarshan Kumar.
According to the case of Sudarshan Kumar, the appellant was a                   E
benamidar. In short, the contention of Sudarshan Kumar is that he is the
sole owner of the suit properties. His further contention is that by writing
a letter to him on 15th April 1980, the appellant accepted his sole ownership
and that is how the appellant voluntarily executed the power of attorney
dated 23rd March 1980 which was duly registered under the Indian                F
Registration Act, 1908 under which Sudarshan Kumar was appointed as
his attorney in respect of the suit properties. Therefore, the contention
of Sudarshan Kumar is that the sale deeds are legal and valid. Apart
from these contentions on merits, it was contended by Sudarshan Kumar
that the prayers for declaration incorporated subsequently by way of
amendment in relation to the two sale deeds and the power of attorney           G
were barred by limitation. It was contended that even the prayer made
for grant of his share in the compensation in respect of tube well was
barred.
       5. The Trial Court dismissed the suits filed by the appellant. The
Trial Court held that the suit lands were intended to be purchased only         H
594             SUPREME COURT REPORTS                          [2021] 11 S.C.R.


A     by Sudarshan Kumar and that is how the original sale deeds were in
      possession of Sudarshan Kumar. The Trial Court accepted the contention
      that he was the exclusive owner and the appellant wasthe benamidar.
      The Trial Court upheld the contention of Sudarshan Kumar regarding
      legality and validity of the power of attorney and both the sale deeds
      which were the subject matter of challenge. Trial Court held that as
B
      Sudarshan Kumar was the only owner of the suit properties, the appellant
      was disentitled to any relief. The Trial Court also held that the prayer for
      grant of a share in compensation in respect of the tube well was barred
      by provisions of Rule 2 of Order II of the Code of Civil Procedure, 1908.
             6. Being aggrieved by the judgment of the Trial Court, the appellant
C     preferred two appeals before the District Court. The appeals were partly
      allowed. The District Court held that Sudarshan Kumar did not step into
      witness box and except for the bald statement made by the attorney of
      Sudarshan Kumar in his evidence, nothing was placed on record to show
      that the entire sale consideration for acquiring suit properties was paid
D     by him. The District Court held that as the case of Sudarshan Kumar
      was that the money was transmitted from a foreign country to the
      appellant, it was easily possible for Sudarshan Kumar to adduce
      documentary evidence to show that money was transferred to the
      appellant as alleged in his written statement. Therefore, the District Court
      accepted that both the appellant and Sudarshan Kumar were the joint
E     owners of the suit properties. The District Court also held that the sons
      of Sudarshan Kumar and the wife of Sudarshan Kumar had a notice
      that the appellant had one half share in the suit properties as there was
      a recital to that effect in the sale deeds executed by Sudarshan Kumar.
      It was further held that Sudarshan Kumar, his sons and his wife failed to
F     adduce any evidence to show that the price was paid as mentioned in
      the impugned sale deeds. The District Court observed that while executing
      the sale deed in favour of his wife, Sudarshan Kumar described his wife
      as the daughter of one Mehar Chand and that she has not been described
      as his wife. The District Court held that the sale deeds dated 10th April
      1981 were without consideration. Therefore, the District Court decreed
G     the suit by granting joint possession by setting aside the sale deeds dated
      10thApril 1981. However, the prayer for compensation in respect of the
      tube well was rejected.
            7. The respondents filed separate second appeals before the High
      Court which have been allowed by the impugned Judgment and order.
H     The High Court upheld the finding of the District Court that Sudarshan
         KEWAL KRISHAN v. RAJESH KUMAR & ORS. ETC.                            595
                    [ABHAY S. OKA, J.]

Kumar failed to adduce evidence to prove that he remitted money from          A
foreign country to the appellant. Therefore, the High Court held that the
appellant and Sudarshan Kumar were the joint owners of the suit
properties. The High Court held that the power of attorney was valid.
The High Court further held that the suits for declaration of invalidity of
the sale deeds were barred by limitation as the said prayers were belatedly
                                                                              B
incorporated on 23rd November 1985.The High Court held that the sale
consideration mentioned in the sale deeds executed on 10th April 1981
of Rs.5,500/- and Rs.6,875/- respectively was not exorbitant and,
therefore, the amounts were not out of reach of the sons of Sudarshan
Kumar and wife of Sudarshan Kumar. As the High Court held the
appellant to be the owner of half share in the suit properties and as the     C
power of attorney was held to be valid, by the impugned Judgment and
order, it directed Sudarshan Kumar to pay the share of the appellant in
the consideration shown under the sale deeds dated 10th April 1981 with
12% interest from the date of execution of the sale deeds. The said
Judgment and order has been impugned in these appeals.
                                                                              D
      SUBMISSIONS OF THE APPELLANT
       8. Shri Neeraj Kumar Jain, the learned Senior Counsel appearing
for the appellant submitted that even the High Court accepted that there
was no evidence adduced to show that the purchasers under the sale
deeds dated 10th April 1981 had paid consideration to Sudarshan Kumar.        E
He submitted that finding of the High Court that the consideration
amounts were not out of reach of the purchasers is without any basis as
it was not the case of the Sudarshan Kumar that his wife and minor sons
had any source of income at the relevant time.
       9. The learned Senior Counsel further submitted that even in the       F
unamended plaints, there were specific assertions made that the sale
deeds were null and void as the same were without consideration. He
pointed out that the unamended plaints contained a specific contention
that the transactions of sale were sham transactions. It was specifically
pleaded that the market value of the suit properties was more than
Rs.30,000/- and there was no occasion to sell the suit properties at the      G
price shown in the sale deeds. He pointed out that it was pleaded in the
unamended plaints that the minor sons of Sudarshan Kumar and his
wife had no source of earning. He submitted that as the sale deeds were
without consideration, the same were void. He pointed out that the suit
for injunction was based on the title pleaded by the appellant as a joint     H
596             SUPREME COURT REPORTS                          [2021] 11 S.C.R.


A     owner of the suit properties and therefore, the appellant continues to be
      the owner of his share in the suit properties as the sale deeds are void
      and sham. He urged that it was not necessary to amend the plaint and to
      seek a specific declaration regarding the invalidity of the power of
      attorney and sale deeds. He pointed out that the High Court has committed
      a manifest error while recording a finding on bar of limitation. He invited
B
      our attention to paragraph 28 of the impugned Judgment which proceeds
      on the footing that the appellant had challenged the legality and validity
      of sale deeds dated 12th March 1976 and 19th October 1976. He urged
      that the specific challenge was two sale deeds dated 10th April 1981. He
      submitted that the High Court has erroneously disturbed the decree passed
C     by the District Court.
            SUBMISSIONS OF THE RESPONDENTS
             10. The learned Senior Counsel Shri Surjeet Singh representing
      the respondents invited our attention to the letter dated 5th April 1980
      (Exhibit D3) addressed by the appellant to Sudarshan Kumar. He pointed
D     out that in the said letter, the appellant accepted that the suit lands were
      purchased out of the amounts remitted by Sudarshan Kumar and in fact,
      the appellant agreed to transfer the suit properties in the name of
      Sudarshan Kumar. He would, therefore, submit that the appellant has no
      right, title and interest in the suit properties. He submitted that in the
E     suits filed in May 1983, the appellant did not pray for any declaration
      regarding the sale deeds and the power of attorney. He pointed out that
      only in November 1985, the plaint was amended to incorporate the prayers
      for declaration as regards the power of attorney dated 28thMarch 1980
      and the sale deeds dated 10th April 1981. He would, therefore, submit
      that the prayers for declaration were barred by limitation. The learned
F     Senior Counsel submitted that without getting a declaration regarding
      the invalidity or nullity of sale deeds, the appellant cannot get any relief.
      He submitted that the appellant did not discharge initial burden on him by
      stepping into witness box. He would, therefore, submit that no interference
      is called for with the impugned Judgment and order.
G            11. After the judgment in these appeals was reserved on
      11th November 2021, the respondents have filed written submissions on
      16th November 2021 contending that the issue whether the purchasers
      under the sale deeds were the bonafide purchasers was redundant. He
      urged that the contention that the constituted attorney of Sudarshan Kumar
H     was not a competent witness was not raised by the appellant.
         KEWAL KRISHAN v. RAJESH KUMAR & ORS. ETC.                              597
                    [ABHAY S. OKA, J.]

      CONSIDERATION OF SUBMISSIONS AND REASONS                                  A
       12. We have given our careful consideration to the submissions.
The case made out by the respondents in their written statement was
that Sudarshan Kumar, who was employed abroad, remitted large amounts
to the appellant, his younger brother, who was unemployed at that time.
The case of the respondents was that Sudarshan Kumar paid the entire            B
consideration for acquiring the suit properties under the sale deeds of
1976. The contention of the respondents is that instead of purchasing
suit properties only in the name of Sudarshan Kumar, the appellant
incorporated his name in the sale deeds along with Sudarshan Kumar. It
is an admitted position that the said Sudarshan Kumar did not step into
the witness box. Moreover, there is a finding recorded by the District          C
Court that no evidence was adduced by Sudarshan Kumar to prove that
certain amounts were transmitted by him from a foreign country to the
appellant. This finding has not been disturbed by the High Court. The
modified decree passed by the High Court by the impugned Judgment
and order proceeds on the basis of the finding that the appellant and           D
Sudarshan Kumar were the joint owners of the suit properties as
Sudarshan Kumar failed to establish his claim that he was the sole owner
of the suit properties. The respondents have not chosen to challenge the
impugned Judgment and order and therefore, the finding that the appellant
and Sudarshan Kumar were the joint owners of the suit properties has
become final. Hence, reliance placed by the respondents on the letter at        E
Exhibit D3 will not help them.
       13. A copy of the unamended plaint in one of the two suits is
placed on record along with the counter affidavit. In paragraph 3 of the
unamended plaint, there is a specific pleading that both the sale deeds of
10 th April 1981 were null and void as the same were without                    F
consideration. In the plaint, it is specifically pleaded that suit properties
which were worth more than Rs.30,000/- were shown to have been sold
at a throwaway price. The prayer for injunction was made in the
unamended plaint on the basis of the title claimed by the appellant as a
joint owner of the suit properties along with Sudarshan Kumar.                  G
       14. Admittedly, there is no evidence adduced on record by
Sudarshan Kumar that his minor sons had any source of income at the
relevant time and that they paid him consideration as mentioned in the
sale deed. Similarly, no evidence was adduced to show that Sudarshan
Kumar’s wife had any source of income and that she paid consideration           H
598            SUPREME COURT REPORTS                         [2021] 11 S.C.R.


A     mentioned in the sale deed. An issue was specifically framed by the
      Trial Court on the validity of the sale deeds. There is a specific finding
      recorded by the District Court that there was no evidence adduced to
      show that Sudarshan Kumar’s wife and minor children paid consideration
      as shown in the sale deeds. In fact, before the District Court, it was
      pleaded that Sudarshan Kumar’s wife had brought some money from
B
      her parents. The District Court in paragraph 11 of the judgment held that
      no evidence was adduced to prove the said contention. Therefore, there
      is a categorical finding recorded in the same paragraph by the District
      Court that Sudarshan Kumar, by taking advantage of the power of
      attorney, transferred the suit lands to his own minor sons and his wife
C     without any consideration. The High Court has not disturbed the finding
      recorded by the District Court regarding the failure of the respondents
      to adduce evidence regarding the payment of consideration under the
      sale deeds dated 10th April 1981. The High Court in paragraph 29 merely
      observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was
      not exorbitant and was not out of reach of Sudarshan Kumar’s sons and
D
      wife. Perhaps, the High Court has 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 sons of Sudarshan Kumar and it was not even
      pleaded that they had any source of income. The same is the case with
      the sale deed executed by Sudarshan Kumar in favour of his wife. Thus,
E     undisputed factual position is that the respondents failed to adduce any
      evidence to prove that the minor sons had any source of income and that
      they had paid the consideration payable under the sale deed. They did
      not adduce any evidence to show that Sudarshan Kumar’s wife was
      earning anything and that she had actually paid the consideration as
      mentioned in the sale deed.
F
            15. Section 54 of the Transfer of Property Act, 1882 (for short
      “the TP Act”) reads thus:
            “54. “Sale” defined.—”Sale” is a transfer of ownership in
            exchange for a price paid or promised or part-paid and part-
G           promised.
                  Sale how made.—Such transfer, in the case of tangible
            immoveable property of the value of one hundred rupees and
            upwards, or in the case of a reversion or other intangible thing,
            can be made only by a registered instrument.
H
         KEWAL KRISHAN v. RAJESH KUMAR & ORS. ETC.                                 599
                    [ABHAY S. OKA, J.]

              In the case of tangible immoveable property of a value less          A
       than one hundred rupees, such transfer may be made either by a
       registered instrument or by delivery of the property.
             Delivery of tangible immoveable property takes place when
       the seller places the buyer, or such person as he directs, in
       possession of the property.                                                 B
             Contract for sale.—A contract for the sale of immoveable
       property is a contract that a sale of such property shall take place
       on terms settled between the parties.
             It does not, of itself, create any interest in or charge on
       such property.”                                                             C

       Hence, 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 section 54 of the TP
       Act. If a sale deed in respect of an immovable property is executed         D
       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. It
       is of no legal effect. Therefore, such a sale will be void. It will not
       effect the transfer of the immovable property.
        16. Now, coming back to the case in hand, both the sale deeds              E
record that the consideration has been paid. That is the specific case of
the respondents. 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 of Sudarshan Kumar had no earning capacity. No evidence              F
was adduced by Sudarshan Kumar 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 Sudarshan Kumar of                 G
selling the suit properties on the basis of the power of attorney of the
appellant to his own wife and minor sons is a sham transaction. Thus,
the sale deeds of 10th April 1981 will not confer any right, title and interest
on Sudarshan Kumar’s wife and children as the sale deeds will have to
be ignored being void. It was not necessary for the appellant to specifically
                                                                                   H
600              SUPREME COURT REPORTS                        [2021] 11 S.C.R.


A     claim a declaration as regards the sale deeds by way of amendment to
      the plaint. The reason being that there were specific pleadings in the
      plaints as originally filed that the sale deeds were void. A document
      which is void need not be challenged by claiming a declaration as the
      said plea can be set up and proved even in collateral proceedings.
B           Hence, the issue of bar of limitation of the prayers for declaration
      incorporated by way of an amendment does not arise at all. The additional
      submissions made by the respondents on 16thNovember 2021 have no
      relevance at all.
              17. As no title was transferred under the said sale deeds, the
C     appellant continues to have undivided half share in the suit properties.
      That is how the District Court passed the decree holding that the appellant
      is entitled to joint possession of the suit properties along with Sudarshan
      Kumar. Therefore, for the reasons recorded above, by setting aside the
      impugned Judgment and order of the High Court, the decree passed by
      the District Court deserves to be restored.
D
             18. Accordingly, the appeals are allowed. The impugned Judgment
      of the High Court is set aside and common judgment and order dated
      21st May, 1988 passed by the Additional District Judge, Ropar, Punjab in
      Civil Appeal bearing No.31/256/23.07.1986 and Civil Appeal bearing
      No.34/257 /23.07.1986 is here by restored.
E
             19. There will be no order as to costs.

      Devika Gujral                                               Appeals allowed.



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