KEVALDAS KUBERDAS Vs. NAGINDAS NATHUBHAI

JUDGEMENT

(1.) IT is foundry the Court below that the sale to the appellant was for Rs. 400, of which Rs. 300 went to satisfy an old mortgage. As to the balance Rs. 100, there is a recital in the sale-deed that that amount was taken as paid to the vendor in satisfaction of a debt due from him to the purchaser. The Courts below have found that no such debt is proved to have been due; and that circumstance has led the Courts to hold in law that the sale is partially void ". That view of the Courts below is clearly wrong. The fact that part of the consideration money for a sale has not been paid does not make it void wholly or partially. All that the vendor is legally entitled to in that case is a lien on the property sold to the extent of the amount not paid: see Umedmal Motiram V/s. Davu 2 B. 547 and Baijnath Singh V/s. Paltu 30 A. 125. In the present case assuming the finding of the Courts below to be that Rs. 100 were not paid, all that the vendor would be entitled to would be a lien on the property to the extent of that amount, but he cannot ask that the sale be set aside as void wholly or partially. What the Courts have found, however, is that the recital in the deed of sale about the consideration of Rs. 100 is false. Whether such a recital can give even the vendor a right to claim the lien is doubtful. Having on legally insufficient grounds pronounced the sale to be partially void, the lower Courts have gone on to hold that the sale operates as a mortgage to the extent of Rs. 300; and on that basis they have given the respondent a decree entitling him to attach and sell the property as the judgment-debtor's (appellant's vendor) subject to the mortgage so declared. IT is impossible to understand how or on what principle of law a void sale can operate in such a case as a mortgage. IT was not the case of any party that the sale was intended to operate as a mortgage. Under those circumstances it was not competent to the Courts below to make out for either of the parties a case not covered by the pleadings.

(2.) WHETHER the respondent is entitled to attach and sell the right of lien to the extent of Rs. 100 which the appellant's vendor may have on the basis of the lower Court's finding as to that amount, is a question which does not arise in the present suit. The finding must be treated as unnecessary for the present purposes. The respondent's case was that the sale was void and unauthorised and void for want of consideration. In that, he has failed; and his claim as brought must be rejected with costs throughout. Decree reversed and the suit dismissed accordingly. Cross- objections disallowed with costs.