Bombay High Court
MOHAMMAD ASHFAQ MOHAMMAD SIDDIQU MOTIWALA AND ANOTHERversusPRAFULLA BHASKAR KULKARNI AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The amendment of the plaint at the appellate stage was valid and the petition challenging it was dismissed.
Summary
The petitioners sought to set aside the District Judge's order allowing an amendment of the plaint at the appellate stage in RCA No. 53 of 2017. They argued that the original plaintiff had ample opportunity to amend earlier and that the amendment was a belated attempt to fill a lacuna, thus impermissible. The respondent contended that the amendment was proper and that the sale deed in dispute was not void merely because full consideration had not been paid, relying on Section 54 of the Transfer of Property Act. The trial court held that partial payment satisfied the statutory requirement and that the sale deed remained valid. The High Court, noting that the amendment caused no prejudice to the respondents, upheld the lower court's order and dismissed the writ petition.
Issues considered
- Whether an amendment of the plaint may be entertained at the appellate stage when the original plaintiff had earlier opportunity to amend.
- Whether a sale deed is void for non-payment of the entire consideration under the Transfer of Property Act.
Legislation cited
- Indian Evidence Act, 1872 — s. 92
- Transfer of Property Act, 1882 — s. 54, 55(4)(b)
Subjects
- amendment of plaint
- appellate stage
- sale deed
- consideration
- Transfer of Property Act
- civil procedure
- writ petition
Judgment
2026:BHC-AUG:2550
1 WP / 11886 / 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
1037 WRIT PETITION NO. 11886 OF 2023
AND
CIVIL APPLICATION NO. 686 OF 2026 IN WP/11886/2023
MOHAMMAD ASHFAQ MOHAMMAD SIDDIQU MOTIWALA AND ANOTHER
VERSUS
PRAFULLA BHASKAR KULKARNI AND OTHERS
...
Advocate for petitioner - applicant : Mr. P.V. Barde
Advocate for respondent no. 5 : Mr. N.T. Tribhuwan
Respondents 1 to 3 – served – absent
Respondent no. 4 - deleted
...
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 17 JANUARY 2026
PER COURT :
Civil Application No. 686 of 2026, not on Board. Upon
mentioning, taken on Board.
2. Considering the averments in the application, the application is
allowed.
3. Necessary amendment to be carried out forthwith.
4. Heard learned counsel for the respective parties.
5. By way of present petition, the petitioner assails the order dated
19.08.2023 passed below Exhibit – 29 by the District Judge, Aurangabad in
application RCA No. 53 of 2017, whereby the application filed by the
petitioner for amendment came to be allowed.
6. Learned counsel for the petitioner Mr. Barde submits that at the
appellate stage, application for amendment ought not have been entertained
as there was no due diligence on the part of the original plaintiff – respondent
2 WP / 11886 / 2023
as original plaintiff had opportunity to amend the plaint earlier but the plaintiff
waited till the trial Court decided the matter and, therefore, such applicaton is
filed to fill up the lacuna at the appellate stage. Therefore, he submits that
such application cannot be considered at the appellate. He invited my
attention to paragraph no. 17 of the judgment of the trial court, which reads
as under :-
“17) Now I would like to consider legal position and for that it would be
proper to consider observations made and ratio laid down in reported
ruling 2009(4) Mh.L.J. 706 (Supra). For ready reference I would like to
reproduce para No.8 of the Judgment, it reads as under -
8. Sale is defined as being a transfer of ownership for a price.
In a sale there is an absolute transfer of all rights in the
properties sold. No rights are left in the transferor. The price is
fixed by the contract antecedent to the conveyance. Price is
the essence of a contract of sale. There is only one mode of
transfer by sale in regard to immovable property of the value
of Rs.100/- or more and that is by a registered instrument. It is
now well settled that payment of entire price is not a condition
precedent for completion of the sale by passing price is not a
condition precedent for completion of the sale by passing of
title, as section 54 of Transfer of Property Act, 1882 ('Act' for
short) define 'sale' as a transfer of ownership in exchange for
a price paid or promised or part paid and part promised. If the
intention of parties was that title should pass on execution
and registration, title would pass to the purchaser even if the
sale price or part thereof is not paid. In the event of non-
payment of price (or balance price as the case may be)
thereafter, the remedy of the vendor is only to sue for the
balance price. He cannot avoid the sale. He is, however,
entitled to a charge upon the property for the unpaid part of
the sale price where the ownership of the property has
passed to the buyer before payment of the entire price, under
section 55(4)(b) of the Act. Normally, ownership and title to
the property will pass to the purchaser on registration of the
sale deed with effect from the date of execution of the sale
deed. But this is not an invariable rule, as the true test of
passing of property is the intention of parties. Though
registration is prima facie proof of an intention to transfer the
property, it is not proof of operative transfer if payment of
consideration (price) is a condition precedent for passing of
the property. The answer to the question whether the parties
intended that transfer of the ownership should be merely by
execution and registration of the deed or whether they
intended the transfer of the property to take place, only after
receipt of the entire consideration, would depend on the
intention of the parties. Such intention is primarily to be
gathered and determined from the recitals of the sale deed.
3 WP / 11886 / 2023
When the recitals are insufficient or ambiguous the
surrounding circumstances and conduct of parties can be
looked into for ascertaining the intention, subject to the
limitations placed by section 92 of the Evidence Act. .....”
7. Per contra, Mr. Tribhuwan, learned counsel for respondent no. 5
supports the order.
8. The original plaintiff – respondent filed suit against the petitioner
for declaration that the sale deed executed by late Bhaskar Kulkarni bearing
no. 3671 of 2001 dated 27.12.2005 in favour of petitioner no. 1 is void and
not binding upon the respondents. The original plaintiff – respondent had
sought relief of declaration that his father Bhaskar Kulkarni had no right,
authority and competence to sell the said suit land. Consequently, the said
sale deed was not binding upon the original plainitff – respondent to the
extent of their 4/5th share.
9. Learned trial Court has recorded findings in paragraphs no. 20,
21, which read as under :-
“20. On considering requirement of Section 54 of the Transfer of
Property Act, 1882, it is very clear, consideration amount can be paid
or promised or part paid and part promised. In present case,
admittedly, Bhaskar accepted part payment and intention of parties
was clear to transfer ownership in exchange of consideration
amount. Therefore, only because, entire consideration amount was
not paid, it is not acceptable sale deed executed by Bhaskar in
favour of defendant No.1 is void or liable to be cancelled.
21. After having gone through terms and conditions of sale deed
(Exh.164), it is not possible to accept there was no any liability of
Bhaskar to clear any objection, if taken in future pertaining to
ownership and possession of the suit property, making it clear after
execution of sale deed terms embodied in agreement to sale can not
be relied upon to ascertain liability of the parties, sale deed being
final document. Further it is also clear, as per terms and conditions of
the sale and purchase transaction, cheque payment was not subject
to the clearance of the objection if any taken to the mutation,
ownership or possession of defendant No. 1. Therefore, act of
stopping cheque payment for whatsoever reason, is not justifiable,
same time it can not be accepted as a ground for declaring sale
deed void or cancelled.”
10. Considering that allowing such amendment would not cause
any prejudice to the petitioner - original defendant, I do not find any reason to
4 WP / 11886 / 2023
interfere with the dated 19.08.2023 passed below Exhibit – 29 by the District
Judge, Aurangabad in application RCA No. 53 of 2017.
11. Hence, the petition is dismissed. No order as to costs.
[ SIDDHESHWAR S. THOMBRE ]
JUDGE
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