For Annulment Of Sale Deed, Executant Must Seek Its Cancellation Whereas Non-Executant Must Seek Declaration Of Its Invalidity: Kerala High Court

Justice A. Badharudeen observed thus:

“Thus, the legal position emerges is that, when there is a sale deed, if the executant wanted to annul the same, he had to seek cancellation of the said deed or the relief to set aside the deed. If a non-executant seeks annulment of a deed, he had to seek a declaration that the deed is invalid, or non- est or, illegal or that the deed is not binding upon him.”

Background Facts

The plaint schedule property which was under challenge originally belonged to the father of plaintiff and defendants 2 to 4. 1^st defendant is the mother of the plaintiff and defendants 2 to 4. The plaintiff approached the Trial Court for the partition of the property as their father died without leaving behind a will. The Trial Court passed preliminary decree in favor of the plaintiff and stated that the property can be partitioned.

The case of the defendants was that the entire property was not partible, because the father has already transferred certain properties by way of Exhibit B1 sale deed to the 3^rd defendant for consideration.

In Appeal, the Sub Court has also allowed the partition of the property. The Sub-Court relied upon Sankaran v. Velukutty (1986) to state that since the plaintiff was not a party to the sale deed, he can ignore that document. The appellant- defendants thus challenged the decree and suit passed in the appeal in favor of the respondent-plaintiff by a regular second appeal u/S 100 CPC.

Findings

The Court considered whether the lower courts erred in rejecting the sale deed that was executed for a valid consideration. The Court referred to the decision in Sankaran (supra) and stated that it does not lay down a law that in the case of a sale deed, a party can ignore the sale deed and seek the relief of partition without seeking a declaration either to set it aside or to treat the document as non-existent in law and not binding.

The Court further relied upon the Apex Court decision in Suhrid Singh @ Sardool Singh v. Randhir Singh and Others (2010) and stated that if an executant of a sale deed wants to annul a deed, he must seek cancellation of the deed. It then noted that if a non-executant of a sale deed wants to annul a deed, he should seek a declaration that the deed is invalid or non-est or illegal or that it is not binding on him.

The Court observed that the property cannot be partition as the plaintiff has not sought any declaration to set aside Exhibit B1 sale deed. Even if he was not a party to the sale deed, he must have sought a declaration that the deed is invalid, or non- est or, illegal or that the deed is not binding upon him.

“In this matter, the plaintiff not sought the relief to declare Ext.B1 as invalid, or non-est or, illegal or that the deed is not binding upon him. In fact, the plaintiff could not succeed without seeking such a relief and getting the said relief allowed.”

The Court noted that the sale deed was a validly executed document for a consideration and therefore, the plaintiff should have pleaded, proved and obtained a declaration that the sale deed was illegal, non-existent and not binding upon him.

“In order to disbelieve the pucca sale deed executed for valid consideration, there must be specific challenge and the document either to be set aside or to declare the same as invalid, or non-est or, illegal or that the deed is not binding upon the party who claims right in the property in exclusion of the sale deed, since the same is not a void document.”

On the above observations, the Court modified the decree and judgment of the Trial Court and stated that the properties conveyed under sale deed were not partible and only the properties not covered under the sale deed were available for partition.

Counsel for the appellants: Advocates T.A.Unnikrishnan and Sri.K.K.Akhil

Counsel for the respondents: Advocates T.P Pradeep and S Sreedev

Citation: 2023 LiveLaw (Ker) 557

Case title: Fathima Beevi v Abdul Rahman

Case number: RSA NO. 250 Of 2020

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