Patna High Court
Sarjug Saran Singh And Ors. vs Ramcharitar Singh And Ors. on 16 February, 1967
Equivalent citations: 1968(16)BLJR74
JUDGMENT R.L. Narasimham, C.J.
1. This is a plaintiffs appeal against the judgment of a single Judge of this Court (A.B.N. Sinha, J.), dated the 17th December, 1963, in Second appeal No. 458 of 1962, affirming the first appellate judgment of the 1st Additional District Judge, Patna, and dismissing the plaintiffs' suit for declaration of title, recovery of possession and other consequential reliefs.
2. The disputed property has been described in Schedule A of the plaint, and admittedly it formerly belonged to defendants 1 and 2. They executed and registered a sale-deed on the 10th April, 1956, in favour of plaintiff No. 2, conveying the property to him. On the 18th April, 1956, they executed two sale-deeds conveying the same property to defendants 3, 4, 5 and 6, and also executed a deed of cancellation of the sale-deed executed in favour of plaintiff No. 2. These deeds were duly registered on the 25th April, 1956. The plaintiffs case was that title to the property completely passed to the plaintiffs (plaintiff No. 2 being a member of the plaintiffs' joint family) by virtue of the earlier sale-deed (ext. 1), as it was the intention of the parties that title should pass on the execution and registration of the document, even though neither the consideration money was paid on that date nor was delivery of possession given. The plaintiffs further alleged that defendants) 3, 4, 5 and 6 were not bona fide purchasers for value of the property, that they were fully aware of the execution of the sale deed by defendants 1 and 2 in favour of the plaintiffs and that with that knowledge they deliberately purchased the property by the two sale-deeds on a subsequent date, dishonestly acting in collusion with defendants 1 and 2.
3. The most important question for consideration was whether title passed to the plaintiffs by virtue of the mere execution and registration of exhibit 1. The material portion of the recital in the document (English translation) is as follows:
Under these circumstances, we, the executants, in a sound state of body and mind, in our proper senses, without pressure, coercion, deception and temptation of anybody, after fully understanding our profit and loss and in entire good faith absolutely sold and vended the whole and entire kasht land and house etc. specified in column, No. 5 of this deed owned and possessed by us which are quite free and clear from defects of title and clear mortgage liens (?) etc., with all boundary limits and rights and title appertaining thereto on admitting the execution of this Seed for a fair price of Rs. 4,372/8 in Govt. coins half of which is Rs. 2,186/4 in the said coins to the claimants mentioned in column No. 2 without reserving any right of cancellation and revocation, and we, the executants, received the entire consideration money at the time of exchange of equivalents from the aforesaid vendee and appropriated the same for purchase of property at our residential place in Mauza Alipur Bihta and near our residence as well as for spending the same over business. We the executants put the vendee in possession and occupation of the vended property as absolute owner thereof. The contract for State was confirmed and the exchange of equivalents was effected (between or by) both the parties. All rights, title and interest which we, the executants, had in the vended property have now been acquired by the said vendee and his heirs and representatives precisely and without any difference.
It was admitted by the plaintiffs themselves that the aforesaid recital is incorrect, both as regards the receipt of the consideration money and as regards putting the vendee in possession of the property. The registration receipt remained with the executants, namely, defendants 1 and 2, and the plaintiffs alleged that on a subsequent date, when they offered to pay the consideration money and to take the registration receipt from defendants 1 and 2 (Takalzul badlain exchange of equivalents), they, under the instigation of the other defendants refused to part with the receipt and sold the property to the other defendants. It appears to have been taken for granted by both parties that there was a latent ambiguity in the recitals of the document inasmuch as some of the recitals were unmeaning with reference to existing acts and hence evidence was adduced by both sides to prove the surrounding circumstances and he conduct of the parties. One of the plaintiffs' witness, P.W. 1 stated that he was ready to offer the money on the date of the registration, but the first appellate court did not accept his evidence. It further held that defendants 1 and 2 were in urgent need of money and that was the main reason why they executed the two sale-deeds in favour of the other defendants within such a short time after the execution of the Sale-deed in favour of the plaintiffs. It also held that the plaintiffs were not on such intimate terms with defendants 1 and 2 so as to Justify the inference that even after parting with title to the property these two defendants would have waited for some time to receive the consideration money, especially when they were in urgent need for the same. Taking these circumstances, into consideration, the learned, first appellate court, on a construction of the document, held that the intention of the parties was that title should pass only on payment of the consideration, and that, as admittedly the consideration was not paid, the plaintiffs did, not obtain title by virtue of exhibit 1.
4. The first question for consideration is whether this finding of the final court of fact, namely, the first appellate court, can be interferred with either in second appeal, or in Letters Patent appeal by this Bench. It is true that the construction of a document of title has always been held to involve a question of law-winch can be raised in second appeal. But here it is not a mere construction of a document of title but it is a case of construction of such a document in the light of the evidence regarding the circumstances under which the document was executed and the conduct of the parties. It is true that if such evidence be held to be inadmissible, a question of law may arise; but, as already pointed out, it was never urged that such evidence was inadmissible. Such an argument could not possibly be raised in view of the admission by the plaintiffs, themselves in the plaint that notwithstanding the recitals in the document the consideration money did not pass nor was delivery of possession given. Hence the finding of the first appellate court as regards the intention of the parties must, in the circumstances be held to be a finding of fact which could not be successfully challenged either before the learned single Judge in Second appeal or before this Court in Letters Patent Appeal. I may in this connection refer to an un-reported decision of a Bench of this Court in Sheikh Kasam Ali v. Musammat Zohra L.P.A. No. 33 of 1947 decided on 22-8-1949 where their Lordships, held that the finding of the first appellate court in the aforesaid circumstances was a finding of fact which could not be interfered with in second appeal.
5. Even if it he held that the construction of a document of title in the light of the evidence regarding the surrounding circumstances and the conduct of parties is still a question of law, I am satisfied that the construction put on the same by the learned first appellate court and by the learned Single Judge is correct. On the vexed question as to whether title passed by the mere registration of a document, or else whether the passing of the title is postponed until the payment of consideration taken place, there are innumerable decisions both of this High Court and of other High Courts, and it is not necessary to refer to them in detail. In Pritam Singh v.
Jagannath Sarawgi A.I.R. 1947 Pat. 1 all the previous decisions have been fully discussed and explained by Chatterji, J., whose judgment was upheld on a Letters Patent Appeal by a Division Bench. Thereafter there are two other Bench decisions, namely, Md. Murtaza Hussain v. Abdul Rahman A.I.R. 1949 Pat. 364 and Motilal Sahu v. Ugrah Narain Sahu , which may also be referred to It is well settled that the intention of the parties should be ascertained on a construction of a document; and where there is any Patent ambiguity in any recital, aid may be taken from evidence of surrounding circumstances and the conduct of the parties. Mr. Rai for the appellants urged that the first sentence in the recital (quoted above) was complete in itself and that sentence indicated the clear intention of the parties that title should pass at the time of the registration when the executants admitted execution before the Sub-registrar. He specially relied on the words "without any right of cancellation and revocation" occurring in that sentence. But it is well known that in construing a document due weight should be given to all the recitals. Hence the subsequent recitals as regards payment of consideration at the time of exchange of equivalents and putting the vendee into possession should also be given equal weight. The finding of fact of the appellate Judge is that the vendors were in urgent need of money. The vendee claims to have had the entire consideration money with him at the time of registration. The first appellate court was, therefore, justified in observing that, if the intention was that the title should pass at the time of registration, the vendors would have insisted on payment of the consideration money before the Sub-registrar, or immediately thereafter. The very fact that the registration receipt was kept in their custody and not handed over to the vendee and possession also admittedly remained with them lead to an inference that there was no intention to convey title until the payment of the consideration. As pointed out in Motilal Sahu. v. Ugrah Narain Sahu the fact that the custody of the document (here the registration receipt) remained with the vendor and possession also was kept with him would, show that title did not pass by mere registration, especially with the finding of the final court of fact that the relationship between the plaintiffs and the vendors was not so intimate as to lead to an inference that the vendors would convey their title and wait for some time to receive the. consideration money of which they were urgently in need. The finding of the learned Single Judge is, therefore, unassailable.
6. Realising his difficulty Mr. Rai for the plaintiff-appellants put forward a belated claim to the effect that, in essence, the plaint may also be construed to be a suit for specific performance of contract for sale inasmuch as all the necessary averments for such a suit were found in the plaint. He urged that the sale-deed (ext; 1) may also be construed to be a mere contract for sale and that the plaintiffs have alleged that they were ready and willing to pay the consideration money. He further invited our attention to the fact that the contesting defendants were stated to be not bona fide purchasers for value without notice and that a specific issue on that point was raised (issue No. 5) which was decided in favour of the plaintiffs by the trial court. Hence he asked; this Court at this stage to decree the suit for specific performance of contract after allowing the plaintiffs to add an additional ground seeking that relief.
7. In my opinion, it will not be proper to allow such a plea to be taken at this stage. It is true that some of the facts which are necessary in a suit for specific performance have been averred in the plaint and there are some findings in favour of the plaintiffs. But the entire litigation was fought on the ground that the plaintiffs have obtained good title by virtue of exhibit 1. It was in view of this claim of the plaintiffs that defendants 1 and 2 did not enter appearance or contest this litigation because they had no subsisting interest in the property. To allow the plaintiffs to urge that a decree for specific performance of contract may be passed against all the defendants will; be highly prejudicial to; defendants 1 and 2. Moreover, the first appellate court has not come to a finding that the plaintiffs were ready and willing to per form their part of the contract. It has noticed the contradiction between the evidence of P.W. 1 and P. Ws. 2 and 3 as regards the exact date when the offer of the payment of consideration was made by plaintiff No. 2. Its finding on this point is as follows:
And the evidence on this behalf that the vendors refused to accept the tender on the day of execution of registration for they (vendors) realised higher price from the defendants purchasers as argued by the learned advocate for the plaintiffs, is not convincing and satisfactory.
The readiness and willingness of the plaintiffs to perform their part of the contract is a vital issue in a suit for specific performance, and the defendants did not get an opportunity to lead all available evidence on that point in the present litigation. Moreover, the first appellate court has not given a finding as to whether defendants 3 to 6 were bona fide purchasers for value without notice of the previous contract, though the trial court has given a clear finding in favour of the plaintiffs. If an alternative case of suit for specific performance of contract had been made before the lower appellate court, that court would have given a finding on this vital issue. It will not, therefore, be proper to permit the plaintiffs to prolong, the litigation by permitting them to pray for an alternative relief, of a decree for specific performance of contract. This prayer is, therefore, disallowed.
8. For these reasons the judgment of learned single Judge is upheld and the appeal is dismissed with costs.
U.N. Sinha, J.
9. I agree.