TMI Blog1966 (8) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... to 6 claimed no title to the property and pleaded that there was no cause of action against them. Defendant No. 7 admitted plaintiff's claim that she had executed the two sale deeds on payment of consideration. Defendant No. 2 alone contested the suit. His case is that the two sale deeds (Exs. 4 and 5) were collusive and without considera-ti0n. The basis of his claim is that when Narayan was lying ill, defdt. No. 7 gave the disputed lands to him in 1955 on bhag basis for cultivation. During Narayan's illness defendant 7 borrowed ₹ 1,100 from him by various instalments and being unable to repay the said amount she verbally leased out the disputed lands to him on permanent basis on condition that he would maintain her throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suit even on the finding that delivery of possession was not given under Exs. 4 and 5 and that defendant 2 was in wrongful possession prior to the sale deeds. Execution of the documents and payment of consideration thereunder are admitted by defendant 7 in her written statement. 4. Law is well settled that when execution of a document is either admitted or proved, the onus is on the executant to prove that consideration did not pass. In this case, if defendant 7 herself would have challenged the payment of consideration, the onus would have been on her to establish that she executed the documents. The position of defendant No. 2 is worse. He had failed to establish that no consideration passed under Exs. 4 and 5. 5. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the transaction of 1st July 1931. It is well established that the passing of consideration cannot be challenged except by parties to the transaction or by those who claim through those parties. It was, therefore, not open to the defendant to question the passing of consideration until the defendant established some sort of title in her as the successor-in-interest of Mt. Bifla. The aforesaid passage lays down the correct law and has my respectful concurrence. 7. Defendant 2 has failed to prove that he has derived any interest from the rightful owner, defendant No. 7. He cannot file a suit for specific performance of the alleged agreement under Section 27(b) of the Specific Relief Act, 1877 and cannot take resort to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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