Case Note & Summary
The appellant, Shankarlal Ganulal Khandelwal (since deceased through L.Rs.), filed Regular Civil Suit No.50/1977 in the Court of Civil Judge, Junior Division, Malkapur, contending that he executed a nominal sale deed on 23.11.1972 of plot No.14 admeasuring 2,000 sq. ft. owned by him in favour of the respondent, Balmukund Surajmal Bharuka (since deceased through L.Rs.), without any consideration and without intention to transfer title. The appellant sought a declaration that the sale deed was nominal and not binding on him, and for permanent injunction restraining the respondent from interfering with his possession. The trial court decreed the suit in favour of the appellant on 10.12.1979, holding that the transaction was nominal. The respondent appealed to the District Judge, Buldana, in Regular Civil Appeal No.271/1979, which reversed the trial court's judgment and decree on 27.2.1983, dismissing the suit. The appellant then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law: whether the sale deed was a nominal transaction without intention to transfer title. The court analyzed the evidence, including the fact that no consideration was paid and the parties continued to treat the property as belonging to the appellant. The court held that the first appellate court erred in reversing the trial court's decree without properly appreciating the evidence. The High Court allowed the second appeal, set aside the judgment of the first appellate court, and restored the trial court's decree, declaring the sale deed as nominal and granting injunction in favour of the appellant.
Headnote
A) Property Law - Nominal Transaction - Sale Deed - Intention to Transfer Title - Transfer of Property Act, 1882, Section 54 - The court examined whether a sale deed executed without consideration and without intention to pass title can be treated as a nominal transaction. Held that the sale deed was nominal and did not confer any title on the respondent, as the evidence showed no consideration passed and the parties did not intend to transfer ownership. (Paras 1-10) B) Evidence Act - Benami Transaction - Burden of Proof - Section 92, Indian Evidence Act, 1872 - The court considered the applicability of Section 92 of the Evidence Act to benami transactions. Held that the bar under Section 92 does not apply when the transaction is alleged to be benami or nominal, as the real intention of the parties can be proved by oral evidence. (Paras 5-8) C) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100, Code of Civil Procedure, 1908 - The court framed a substantial question of law regarding the nature of the sale deed. Held that the first appellate court erred in reversing the trial court's decree without properly appreciating the evidence on record, and the second appeal was allowed. (Paras 1, 10)
Issue of Consideration
Whether the sale deed dated 23.11.1972 executed by the appellant in favour of the respondent was a nominal transaction without intention to transfer title, and whether the appellant is entitled to a declaration of ownership and injunction.
Final Decision
Second appeal allowed. Judgment and decree dated 27.2.1983 of the District Judge, Buldana in Regular Civil Appeal No.271/1979 set aside. Judgment and decree dated 10.12.1979 of the Civil Judge, Junior Division, Malkapur in Regular Civil Suit No.50/1977 restored. The sale deed dated 23.11.1972 is declared nominal and not binding on the appellant. Permanent injunction granted restraining respondent from interfering with appellant's possession. No order as to costs.
Law Points
- Nominal transaction
- Benami transaction
- Intention to transfer title
- Consideration
- Burden of proof
- Section 92 Evidence Act
- 1872
