Use Of Expression 'Ta Khubzul Badlain' In Sale Deed By Itself Will Not Be Determinative Of The True Nature Of The Transaction : Supreme Court

The Supreme Court observed that use of the expression 'ta khubzul badlain' in a sale deed by itself will not be determinative of the true nature of the transaction.

When there is a specific recital in the Sale Deed that the title and possession in the property has been passed to the seller, the same are very crucial which cannot be brushed aside, the bench of Justices Abhay S Oka and Rajesh Bindal said.

In this case, the plaintiff contended that the defendant executed a registered Sale Deed on 04th February 1963 in favour of the plaintiff for consideration of Rs.10,000/­. The defendant in his written statement contended that by the Sale Deed, absolute sale was not effected. It is contended that out of the consideration of Rs.10,000/­, the plaintiff had agreed to pay a sum of Rs.6,875/­ for redeeming the 10 mortgages made by the first defendant. The balance amount of Rs.3,125/­ was to be paid on the exchange of equivalents (ta khubzul badlain). The Trial Court decreed the suit. The First Appellate Court allowed defendant's appeal and the said order was affirmed by the High Court.

Before the Apex Court, the plaintiff contended that on the execution of the Sale Deed, right, title and interest of the first defendant in the suit property were passed on to the plaintiff. On the other hand, the defendant contended that the practice of ta khubzul badlain in Bihar recognizes that a duly executed Sale Deed will not operate as a transfer in praesenti but postpones the actual transfer of title from the time of execution and registration of the deed to the time of exchange of equivalents. In such a case, the title on the basis of the Sale Deed will pass to the purchaser only after the entire amount is paid by the purchaser

Referring to the judgment in Janak Dulari & Anr. v. Kapildeo Rai & Anr. (2011) 6 SCC 555, the court said:

"Normally, on the execution and registration of a sale deed containing recitals regarding the payment of consideration and delivery of possession, the sale is complete even if the sale price is not paid and, therefore, it will not be possible to cancel the sale deed in its entirety. However, the exception to the said rule is the practice of ta khubzul badlain. The use of the expression ta khubzul badlain in a sale deed by itself will not be determinative of the true nature of the transaction. It cannot be read in isolation. All the terms and conditions and recitals in the document will have to be considered to decide the real nature of the transaction."

The court noted that the instant Sale Deed refers to various mortgages executed by the first defendant for getting money and the recitals indicate that the plaintiff had agreed to discharge the said loan liabilities.

"But, there is a specific recital in the Sale Deed that the title and possession in the property has been passed to the plaintiff. These recitals regarding the transfer of title and possession are very crucial which cannot be brushed aside.", it said.

Taking note of the other factual aspects, the bench allowed the appeal and restored the decree passed by the Trial Court.

Case details

Yogendra Prasad Singh (D) vs Ram Bachan Devi | 2023 LiveLaw (SC) 582 | 2023 INSC 658

Headnotes

Transfer of Property Act, 1882 ; Section 54- Sale deed - Normally, on the execution and registration of a sale deed containing recitals regarding the payment of consideration and delivery of possession, the sale is complete even if the sale price is not paid and, therefore, it will not be possible to cancel the sale deed in its entirety. However, the exception to the said rule is the practice of ta khubzul badlain. The use of the expression ta khubzul badlain in a sale deed by itself will not be determinative of the true nature of the transaction. It cannot be read in isolation. All the terms and conditions and recitals in the document will have to be considered to decide the real nature of the transaction - Referred to Janak Dulari & Anr. v. Kapildeo Rai & Anr. (2011) 6 SCC 555 (Para 13)

Click here to Read/Download Judgment