Election of remedies / locus to impeach — Stranger’s plea as to adequacy or part-payment of consideration. A stranger to a sale deed normally cannot impeach payment or adequacy of consideration unless the deed is shown to be fictitious, collusive or sham; whether a stranger may challenge depends on pleadings, nature of suit and surrounding circumstances. In the instant case, defendant No.1 (a stranger to vendor-purchaser transaction) did not substantiate allegations and avoided testifying; adverse inference and lack of proof militated against his challenge. 9. Onus and inferences — Failure of party who pleads non-payment or forgery to lead evidence / avoid witness box — Adverse inference. When a party pleads facts (e.g., non-payment, forgery) but avoids leading evidence or entering witness box, an adverse inference may properly be drawn; mere circumstantial suspicions do not displace direct admissions and positive testimony.

1. Civil Procedure — Second appeal — Scope under S.100 CPC — Concurrent findings of fact — Interference only if perverse or unsupported by evidence.

Concurrent findings of Trial and Lower Appellate Courts that (i) vendor executed valid sale deed in favour of plaintiff, (ii) sale consideration was paid, and (iii) title passed to plaintiff could not properly be upset in a second appeal under S.100 C.P.C. unless the findings were perverse or based on no evidence. High Court’s contrary conclusion on the evidence was held unsustainable.

2. Pleadings / Evidence — Admission by vendor, conduct at trial, and failure to cross-examine — Evidential effect.

Defendant-vendor’s one-line written statement admitting the plaintiff’s claim, his refusal to cross-examine the plaintiff, and his subsequent sworn admission in the witness box that he had executed the sale deed and received full consideration — taken together with the registered deed recital — constitute strong evidence of genuineness of the sale and payment of consideration. Such admitted testimony cannot be lightly displaced.

3. Order XVI CPC — Production of witness not named in list / Rule 1A — Permissibility of examining witness produced without prior summons.

Order XVI Rule 1(3) and Rule 1A permit a party to produce a witness whose name was not in the list filed earlier; the Court may, for reasons recorded, permit such production, and a party may, without summons under Rule 1, present a witness. Examination of vendor (defendant No. 2) though not named in the list was permissible and his testimony was admissible.

4. Transfer of Property Act, 1882 — Section 54 — Sale defined; part-payment / part-promise sufficient for sale.

A sale transfers ownership in exchange for a price "paid or promised or part-paid and part-promised". Actual payment of entire price at execution time is not a sine qua non for validity of sale; intention of parties, recitals and conduct establish whether transfer of ownership has occurred. Part payment coupled with the registered instrument and other circumstances may suffice to effect transfer.

5. Transfer of Property Act, 1882 — Section 55(4)(b) — Vendor’s statutory charge where ownership passes before full payment.

Where ownership passes before payment of whole purchase-money, vendor acquires a statutory charge on the property for unpaid price and interest from delivery of possession; non-payment of balance does not render the sale void — remedy lies in enforcing the charge, not in nullifying the transfer.

6. Transfer of Property Act — Section 58(c) — Mortgage by conditional sale (kararkharedi) — Characterisation by intention and contents of document.

Whether instrument is mortgage by conditional sale or absolute sale depends on intention of parties as reflected in the document and surrounding circumstances; proviso requires repurchase condition to be embodied in same document. The deed in question, containing repurchase condition and specifying mortgage-money, was rightly held to be a mortgage by conditional sale by lower courts.

7. Mortgage by conditional sale — Effect of tender / attempt to redeem — If mortgagor tenders amount and mortgagee refuses, no default to convert mortgage into absolute sale.

Where mortgagor offers/requires redemption and mortgagee refuses to accept the amount, there is no default by mortgagor which would convert the conditional mortgage into absolute sale; mortgagee cannot profit from refusal and claim conversion.

8. Election of remedies / locus to impeach — Stranger’s plea as to adequacy or part-payment of consideration.

A stranger to a sale deed normally cannot impeach payment or adequacy of consideration unless the deed is shown to be fictitious, collusive or sham; whether a stranger may challenge depends on pleadings, nature of suit and surrounding circumstances. In the instant case, defendant No.1 (a stranger to vendor-purchaser transaction) did not substantiate allegations and avoided testifying; adverse inference and lack of proof militated against his challenge.

9. Onus and inferences — Failure of party who pleads non-payment or forgery to lead evidence / avoid witness box — Adverse inference.

When a party pleads facts (e.g., non-payment, forgery) but avoids leading evidence or entering witness box, an adverse inference may properly be drawn; mere circumstantial suspicions do not displace direct admissions and positive testimony.

10. Remedy and decree — Restoration of concurrent decrees where High Court set aside on unsustainable view.

High Court’s order directing reconveyance to vendor and return of sums was set aside; Trial Court decree for redemption (as affirmed by Lower Appellate Court) restored. Appeal allowed; impugned High Court judgment set aside; trial and appellate decrees restored (without costs).

RESULT

Appeal allowed. Impugned judgment of High Court set aside; judgment and decree of Trial Court (as affirmed by Lower Appellate Court) restored — without order as to costs.