If A Non-Executant Seeks Annulment Of Sale Deed, He Has To Seek A Declaration That Such Deed Is Invalid/ Non-Est/ Illegal: Kerala HC

The Kerala High Court recently clarified that 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.

A Single Judge Bench of Justice A. Badharudeen observed 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.”

The Bench further added that “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”.

Advocate T. A. Unnikrishnan appeared for the Petitioner whereas Advocate T. P. Pradeep appeared for the Respondent.

The brief facts of the case were that the plaint schedule property which was under challenge originally belonged to the father of the plaintiff and second to fourth defendants. The first defendant is the mother of the plaintiff and second to fourth defendants. The plaintiff approached the Trial Court for the partition of the property as their father died without leaving behind a will. The defendant claimed that the entire property was not partible, because the father has already transferred certain properties by way of sale deed to the third defendant for consideration. The Trial Court passed the preliminary decree in favour of the plaintiff and stated that the property could be partitioned. The Trial Court also allowed the partition of property by stating that since the plaintiff was not a party to the sale deed, he could ignore that document. The appellant-defendants thus challenged the decree and suit passed in the appeal in favour of the respondent-plaintiff by a regular second appeal under Section 100 CPC.

After considering the submission, the Bench noted whether the lower courts erred in rejecting the sale deed that was executed for a valid consideration.

By referring to the case of Sankaran Vs. Velukutty [1986 KHC 196], the Bench stated that if an executant of a sale deed wants to annul a deed, he must seek cancellation of the deed.

The Bench went on to observe that the property cannot be partitioned as the plaintiff has not sought any declaration to set aside the 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.

The Bench pointed that “defendants 1 to 4 jointly filed written statement and they put up a case that, Ext.B1 sale deed was executed in favour of the 3rd defendant and her husband at the time of marriage for a total consideration of Rs.12,000/-. If so, whether the plaintiff is a party to the document or not, Ext.B1 is to be held as a validly executed sale deed and by the operation of said deed, the 3rd defendant and her husband perfected title to the property covered by Ext.B1”.

“Since the plaintiff failed to seek the declaration as hereinabove referred and failure on the part of the plead and prove that Ext.B1 is invalid, or non-est or, illegal or that the deed is not binding upon him goes to the root of the matter”, added the Bench.

Accordingly, the High Court observed that the Sub Judge had failed to appreciate the evidence and also to consider the legality of the document, whereby, the third defendant and her husband perfected title.

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

Cause Title: Fathima Beevi v. Abdul Rahman [Neutral Citation: 2023/KER/60145]

Click here to read/download the Judgment.