Karnataka High Court
G. Hampamma vs Kartigi Sajjivalada Kalingappa And ... on 12 April, 1989
Equivalent citations: AIR1990KANT128, ILR1989KAR2764, 1989(2)KARLJ523, AIR 1990 KARNATAKA 128, 1989 (2) KANTLJ 523 ILR 1989 KANT 2764, ILR 1989 KANT 2764
JUDGMENT
1. Unsuccessful plaintiff in the courts below is the appellant. Her suit for declaration of title, recovery of possession and ascertainment of mesne profits has been dismissed by both the courts. The question of law that arises for determination is, when does the title in the immoveable property pass to the purchaser; does it pass on the registration of sale deed or on the payment of consideration, if it had remained unpaid.
2. The facts leading to his appeal are as follows :
House bearing door No. 47 is Ward No. 5 in Town Panchayat, Kampli belonged to defendants. By sale deed executed on 26-6-1972, and registered on 24-8-1972, the house was sold to plaintiff for Rs. 5,000/-. Though the deed recited that possession was delivered, it was indeed not. Hence this suit.
2A. The defendants admitted that they had agreed to sell the house; their main defence was that sale consideration was agreed at Rs. 9000/-; out of which Rs. 5,000/-was to be mentioned in the sale deed to be paid before the Sub-Registrar and the remaining Rs. 4,000/- was to be paid unaccounted; in common parlance it is "black money". Though they executed the sale deed they did not appear before the registering authority as "consideration" was not paid. Obviously to them the word "consideration" connoted Rs. 9,000/- with the above split up of figures. They did not deliver possession. However, the custody of the registered sale deed was with the plaintiff.
3. Apropos it is necessary to take note of the procedure adopted for registration. On 26-6-1972, after executing the sale deed, the defendants did not appear for registration before the authority. The Sub-Registrar issued summons to the executants. On 2-8-1972, both the executants appeared; they admitted their signatures; but objected to the registration without explicitly stating the reason. The answer given by Kalingappa reads thus :--
Vernacular matter omitted.--Ed.
Similarly the answer of K. Rudrappa reads thus :--
Vernacular matter omitted.-Ed .
It is obvious that they were not ready to give out the reasons in support of their objection to registration. This vague and evasive reply keeps one guessing as to what could be the hidden reason, which could not be stated. Concealed matter gives rise to speculations, There was nothing to hide so far as Rs. 5,000/- was concerned, as it was clearly mentioned in the deed; if that had not been received, nothing precluded them to frankly state that they have not received that consideration. But that is not so. It is well known that unlawful dealings and transaction in black money are done in hush-hush. The defendants could not openly tell this reason, their attitude was suspicious. The Sub-Registrar proceeded to register the document.
His endorsement on the document (Ext.P-1) reads thus :
"The executants (1) K. Kalingapa (2) K. Rudrappa, appeared in this office before the Sub-Registrar on 2nd Aug., 1972. The Executants admitted execution of this document. But they refuse to give their signatures and their thumb impressions in this endorsement and in thumb impression register.
The same has been endorsed in this endorsement as per sub-sec. (2) of S. 58 of Indian Registeration Act 1908 (Central Act XVII of 1908) read with R. 73 sub-R. (ii) of Mysore Registration Rules 1965.
The depositions made by the executants have been recorded in the deposition Book in page Nos. 214 and 215 to their admitting of execution on 2/8/72.
Sd/- xxx Sub-Registrar, Kampli, 2/8/1972".
4. The defendants got issued a lawyer's notice on 30th June, 1972. They admitted that they have signed the sale deed on 26-6-1972, and agreed to present the document for registration on the same day. They alleged that plaintiff did not pay Rs. 9.000/ - as agreed between the parties; but he wanted to pay only Rs. 5,000/-, therefore they refused to register the document. Plaintiff sent a reply on 7-7-1972 (Ext. P-3). She stated thus :
"Your clients received a sum of Rs. 5000/- before the attestors of the sale deed and the witnesses have put their signatures also. My client paid your clients the said sum of Rs. 5,000/- in cash. It is only after the receipt of Rs. 5,000/- in cash your clients have put their, signatures in the deed on every page."
Defendants admitted that they had agreed to sell the house; they also admitted that they have singed the deed, they denied the receipt of consideration, which according to them was Rs. 9,000/-. They contended that registration of the deed is not according to law.
5. The trial Court framed issues as found in para 5 of its judgment. The findings of the trial Court are :
1) Defendants have executed the sale deed Ext. P-1.
2) Defendants have not received the sale consideration.
3) Defendants have failed to prove that consideration was Rs. 9,000/- and the plaintiff agreed to pay Rs. 5,000/- before the Sub-Registrar and Rs. 4,000/- outside the office.
6; The trial Court dismissed the suit. Unsuccessful plaintiff filed R.A. 11 of 1978, before the Civil Judge at Hospet. The only point framed for determination, as mentioned in thejudgment reads thus :--
"Whether the judgment and decree passed by the trial Court calls for any interference in the light of the submissions made by the learned advocate for the appellant".
7. On referring to the evidence of defendants and the Sub-Registrar (DW-2), it was held that "defendants 1 and 2 have put their signatures on the disputed sale deed which is marked as Ext.P-1". On this aspect, the learned Judge has concurred with the trial Court. The finding on issue No. 3 referred to above was not challenged. The burden of proving the non-receipt of consideration was undoubtedly on the defendants. The learned appellate Judge approached the question, as if it was for the plaintiff to prove that issue. After discussing the evidence of PWs. 1 to 3, he has observed thus :
".....It is undisputed from the evidence of PWs 1 to 3 as well as DWs 3 and 4 that the husband of the plaintiff was also present at the time of the writing of sale deed Ex.P-1 the plaintiff is after all a village lady. When the husband of the plaintiff himself is present in normal course, the husband of the plaintiff would be in possession of the sale consideration amount and that he would hand oyer the consideration amount to the defendants. But, from the evidence of PWs 1 to 3, it is made to appear that the plaintiff who is a lady herself took out the amount and handed it over to the scribe who in turn handed it over to the 1st defendant who in turn handed it over the 2nd defendant. This sought of event appears to be quite unnatural and improbable."
8. The judgment of the lower appellate Court, though a concurring one, being a fact finding Court, is far from satisfactory. The point for determination is too general. The approach, in utter disregard of onus of proof, is perverse. In view of the cursory judgment of the lower appellate Court, this Court had to resort to S. 103, C.P.C. This litigation is pending since 1973, and this second appeal is pending for more than a decade, therefore the learned advocates argued the matter with reference to evidence.
9. Mr. J. V. Kolar, advocate for appellant contended that execution of the registered sale deed having been proved, which contains a recital of sale consideration having been received by executants, the sale is complete and right, title and interest passes to the plaintiff-purchaser. He submitted that Exhibits D4(a) and D5(a) clearly establish that the defendants objected to the registration only because they had not received Rupees 4,000/- the black money. Mr. D.L.N. Rao, submitted that the intention of the parties was to convey title on receipt of sale consideration and since consideration had not been received, title is not conveyed. According to the learned counsel, proof of the deed and its registration is not sufficient to convey right, title and interest in the property. Consideration being an essential ingredient of sale, its non-receipts makes the sale void. He submitted that though the defendants have failed to establish that the sale consideration was Rs. 9,000/- of which Rs. 5,000/- was payable before the Sub-Registrar and Rs. 4,000/-outside, nevertheless, there is no proof that Rs. 5,000/- is paid to defendants. On this question, he submitted, the findings being concurrent, are not liable for interference under S. 100, C.P.C.
10. Looking at the judgment of lower appellate Court, it is not possible to say that the finding is concurrent. The burden of proving non-receipt of consideration being on the defendants, the approach of lower appellate Court is erroneous and not legally sound. It is not enough that lower appellate Court concurs with the finding but the iprocess of resoning must be legally sound.
Finding recorded with no reasoning or perverse or illogical reasoning is no finding at all, so as to bind this Court under S. 100, C.P.C.
11. In the light of the arguments advanced, the following questions emerge for consideration :--
1) What is the intention of the parties regarding the passing of title?
2) Has the plaintiff become the owner of the suit house vide exhibit P-1 sale deed dt. 26-6-1972?
Section 54, T.P. Act defines sale and how it is made; it reads thus :
54. "Sale" is transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
"Sale defined"-- Such a transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Sale how made.-- In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs; in possession of the property."
12. The mode of transfer of ownership in case of tangible immovable property, above Rs. 100/-, can be made only by a registered instrument.
13. To constitute a sale, ownership has to be exchange for the prite paid or promised to be paid or partly paid and partly promised.
Therefore future payment of price does not arrest the passing of title, made by a registered instrument. If the parties so contract it may be postponed, till the payment of full consideration. In the absence of contract the title gets conveyed, as soon as the document, with the stipulation of consideration, is registered.
The relevant portion in the, sale deed reads thus :--
(Vernacular matter is omitted --Ed.) The title of the deed reads thus:
(Vernacular matter is omitted --Ed.)
14. It is a simple deed of sale with no reservations on either side. There is nothing to doubt or suspect the non-payment of sale consideration nor the intention to convey title, right earnestly. Being clear and unambiguous, what can be deduced is that the vendors, after receiving consideration of Rs. 5,000/-, have conveyed their right, title and interest to the purchaser. Though it recites that possession is also delivered, in view of plaintiff's admission, that recital must be understood as having remained unperformed. Non-delivery of possession does not affect the conveyance of title. What is transferred for consideration is the right of ownership. Right to possession is incidental to right of ownership. One who is a owner can bring an action for recovery of possession. Once the right, title and interest are sold, on payment of sale consideration, the person in possession, is either a permissive holder like tenant or a person holding adversely to the interest of true owner. In either event person in possession has no title. Since delivery of physical possession is not an essential ingredient of sale, that circumstance by itself can have no relevance to decide the intention. But Mr. D.L.N. Rao contended that as found by both Courts no consideration, whatsoever, is received by vendor, therefore the intention was to convey title only after the receipt of entire consideration. In Michhu Kuanr v. Raghu Jena, , it is held thus (at p. 21 of AIR) :--
".....It requires no reiteration that only if the recitals in the document are indecisive or ambiguous, the surrounding circumstances and the conduct of the parties will be relevant; if really the recitals are to the effect that on receipt of the consideration money the vendor sells the property to the purchaser and makes the purchaser full owner thereof, it would have been clear enough to show that the passing of title would depend on the passing of consideration; on the contrary if there is a clear conveyance that the executant conveys title in favour of the vendee from the date of the execution of the document and the recital regarding consideration comes later independently of the clause regarding title, then only it is clear that the title passes independent of the question of consideration".
15. Conveyance of title and passing of consideration are two independent ingredients. If the recital is such that the former is made to depend on the latter, then it is obvious that passing of title is deferred or postponed till the payment of consideration, but, where the recital does not spell out such a contingent contract and where the two clauses are independent, an incorrect recital regarding consideration does not lead to an inference that the intention of the parties was to convey title on payment of consideration. That such is the position gains support from, and . In Michhu Kuanr's case referred to above, the law laid down in these two cases is extracted thus (at p. 21 of AIR) :
"In Hara Bewa v. Banchhanidhi Barik, , relied on on behalf of the defendants-appellants, the striking distinction is that in the present case the clause in the sale deed dated 22-3-1949 (Ext. 1) conveying the title stands by itself independently of the clause of passing of consideration and this was the main reason why this Court is an earlier case Balabhadra Misra v. Smt. Nirmala Sundari Devi, , on the facts of that particular case, held that title passed inderpendently of the passing of consideration;
that where the recitals in sale deeds were that the consideration passed on the date of execution of the document and that the vendee shall be entitled to all the rights in the property from that day but it was admitted that the consideration was not paid, it was held that from the circumstance alone that the recital in the document about passing of consideration is incorrect it cannot be inferred that the intention of the parties was that passing of the consideration was a condition precedent to the transfer of the title and that title passed to the vendee by virtue of the sale deed."
16. In Sukaloo v. Punau, , it is held thus (at p. 178 of AIR) :
"On a review of the decisions above, we are of the opinion that it is the intention of the parties which has to be looked into to decide whether the sale deed operated as a transfer of interest from the vendor to the vendee on the date of its execution. If this was the intention, then it does not matter whether the whole of the consideration or part of it remained unpaid. Further, where a registered deed of sale purporting to operate as a conveyance on the face of it exists, the burden of proving that it was not so intended is on the party who asserts this fact.
In the instant case, therefore, the burden of proving that the registered sale-deed was not intended to operates as a conveyance and did not transfer the title was on the appellants-defendants. The defendants in their written statement merely denied the sale-deed and asserted that it was without consideration. They never pleaded that the intention of the parties was that the deed was not to operate as a sale-deed or that the title in the property was not to pass until consideration was fully paid."
17. In the instant case there is no averment in the written statement that parties intended to convey title on receipt of Rs. 5000/-, assuming that it had remained unpaid. For every sale, price must be paid. The fact that there can be no sale without a price does not lead to conclusion that the "intention" was to pass title only after the price is paid. As the definition stands price can be promised or paid at a later date also. Mr. Rao's contention that as the deed recites payment of consideration, the intention is obvious that till the consideration is paid, no title passes cannot be accepted, as there is nothing in the deed to infer that the parties so desired or intended. The witnesses examined by plaintiff have clearly stated that defendants signed the deed after receiving Rs. 5000/- thereafter they refused to come before the registering authority, obviously because the black money of Rs. 4000/- was not paid. The document is in Kannada language. It is difficult to accept that without understanding the contents, defendants could have signed the deed. Rudrappa (DW-4) states that they demanded Rs. 4000/- before going to Sub-Registrar's office and since that was not paid, they went away.
18. In Ext. P-2 dt. 30-6-1972, there is no clear statement that Rs. 5000/-, mentioned in the deed, was not paid. So also in the statements in Exts. D-4(a) and D5(a). Mr. D.L.N. Rao vehemently contened that in all cases title passes only after the consideration is paid and not otherwise; he placed reliance on the following decisions :--
(1) ; (2) ; (3) and (4) .
19. In Motilal Sahu v. Ugrah Narain Sahu, , the exact text of the deed is not available, but on facts it was found that possession was not delivered, secondly the registered sale deed had been retained by vendor and lastly not a farthing passed under the contract. In these circum stances, it was held that title remained where it was. On evidence it was held that passing of consideration was sine quanon of the passing of the title. In the instant case apart from the recitals in the deed, all the witnesses examined by plaintiff have stated that Rs. 5,000/- was paid before the defendants put their signatures. Secondly the circumstance in Motilal Sahu's case referred to above, that document remained in the custody of vendors goes a long way in establishing the intention, of parties.
20. In Panchoo Sahu v. Janki Mandar, , the findings were as above i.e. consideration not paid, document remained with vendor and possession was not delivered. Further the deed also contained 3 following recital :--
"On receipt of the fair consideration money I the executant sell the vended land".
21. In view of this recital, following the earlier decision of that Court, the learned Judges held that title would pass only after the receipt of entire consideration. In this case, the defendants have failed to establish that Rs. 9000/- was the agreed consideration. PWs. 1, 2 and 3 have clearly stated that defendants have affixed their signatures on Ext. P-l after receiving Rs.5,000/-. Therefore this decision is of no assistance to the respondents.
22. In Baldeo Singh v. Dwarika Singh, , the recital in the deed was specific to the effect that title to the land should pass only after payment of full consideration money, as is obvious from the following observation (at p. 99 of AIR) :
"From the aforesaid recital it is obvious that the parties to the sale deed had agreed that title to the land in question should pass to the vendee only after payment of the full consideration money....."
23. In Ananda Chandra v. Nilkantha, , the sale deed was executed for prior consideration. As the payment of amount on earlier occasion had not been established, the Court held that title was not conveyed. The above rulings clearly establish that in each case the intention of parties has to be gathered on the facts and circumstances of that case. If the recital is vague or ambiguous, nothing precludes the parties to adduce independent evidence to establish the intention, but not otherwise. If such a fact is pleaded and evidence is adduced to prove the intention, the Court has to consider the same. In the instant case, there is no pleading about the "intention" much less there is any evidence. Mr. Rao's contention that it is a matter of inference from circumstances cannot be accepted. If the terms of the deed are not clear and decisive, the surrounding circumstances and conduct of parties can be looked into. In Balbhadra v. Nirmala Sundari, , the Division Bench, after extracting the recitals in the deed, observed thus (at p. 25 of AIR) :
"It expressly says that from the date of the execution of the document the vendee shall be entitled to all the rights in the suit property. Doubtless it was stated in the document that the entire consideration money also passed on that day. It is admitted by both parties that this portion of the recital in the document is incorrect. But from this circumstance alone it cannot be inferred that the intention of the parties was that passing of the consideration was a condition precedent to the transfer of the title....."
24. In Gurubari Lenka v. Dulani Thakurani, AIR 1971 Orissa 147, learned single Judge of the Orissa High Court, after considering the contents of the documents, observed thus (at p. 149 of AIR) :
"Having examined the document at some length I am of the view that there is no scope for any ambiguity. As the term is clear, the intention is to be gathered only from the term of the document. In such circumstances external aid is not available for finding out the intention. Mr. Dasgupta's contention has substantial force. The parties had stipulated that there would be passing of title even upon deferred payment of the consideration money. The admission of P.W. 2 is not available to be utilised in such background. The contention of Mr. Mohanty on this scope has, therefore, to be negatived."
25. Reiterating the above view, yet another learned single Judge of that High Court observed thus : in Umakanta Das v. Pradip Kumar Ray, ".....It is settled law that if the term in the sale deed is not ambiguous then any external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature..... I have examined the document (Ext. 2) at great length and I am of the opinion that the terms of the document are clear and unambiguous and, therefore, the intention has to be gathered only from the terms of the said documents....."
26. I have already mentioned that the terms in the sale deed Ext. P-1 are absolutely clear and there is no room for looking at the other evidence to gather the intention.
27. The conduct of the defendants in not disclosing before the Sub-Registrar about the non-receipt of Rs. 5000/- the stipulated consideration in the sale deed, coupled with the absence of specific plea in the written statement about "intention" makes their evidence untrustworthy. They have not discharged their burden. There are no valid reasons to disbelieve the evidence of PWs. 1, 2 and 3 in support of the recital in the deed.
28. Mr. Rao submitted that there is inconsistency and serious discrepancy regarding the time and place of payment and Courts below have not accepted the version of plaintiff. All the witnesses say that amount was paid before the defendants signed the deed. It is the case of the defendants that amount of Rs. 5000/- had to be paid before sub-registrar and Rs. 4000/- outside. If that version is correct, defendants could have appeared before sub-registrar to admit execution and receive Rs. 5000/- as spoken to by them. Their apprehension was once the registration is over, they cannot get Rupees 4000/-. If the amount mentioned in the deed remains unpaid, they can file a suit and recover the same but not Rs.4000/-. This circumstances and their reluctance to appear before the registering authority makes one to infer that they had received Rs. 5000/- as stated in the deed and had not received the unaccountable amount of Rs. 4000/-.
29. Mr. Rao lastly submitted that in view of S. 58(c) of the Registration Act, it is mandatory for the Sub-Registrar to endorse on the document about payment of money; in this case there is no such endorsement, hence it has to be concluded that no consideration is received. Clause (c) of S. 58 reads thus :
"58(1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under S. 89, there shall be endorsed from time to time following particulars, namely-
(a) xx xx xx (b) xx xx xx
(c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution."
30. Part VI of Registration Act, 1908 deals with the presentation of documents and their registration. S. 34 in this Chapter requires the registering officer to enquire :
(1) whether or not the document was executed by the person by whom it is purported to have been executed?
(2) satisfy himself as to the identity of the persons appearing before him, alleging that they have executed the document.
Clause (c) has no relevance for our purpose. The above provisions do not state that the registering authority should enquire about the payment of consideration. Clause (c) of S. 58 requires the authority to endorse about facts that have happened in his presence. If the consideration is paid in his presence, he has to record it; if it is not paid and the parties accept the receipt of consideration he has to record the "acceptance" and nothing more. In the instant case, PWs. 1, 2 and 3 have stated that amount of Rs. 5000/- was paid in the house before the defendants executed the deed; in such a situation, the absence of any endorsement on the deed by the Sub-Registrar, does not lead to the inference that consideration has not been paid. This contention does not merit acceptance, it is rejected.
31. For the aforesaid reasons, I hold that there is no proof of intention, contrary to what is stated in the deed and the execution of the deed having been admitted, it conveys title to the plaintiff. Plaintiff is entitled to possession of the suit house. She is also entitled to mesne profits from 26-6-1972 till the date of delivery of possession. An enquiry has to be held under O. 20, R. 12, C.P.C.
32. Hence I pass the following order:--
This appeal is allowed; the judgments and decrees of the lower Courts are set aside. Plaintiff's suit is decreed. She is declared as owner of the suit house and is entitled to recover possession of the same.
There shall be an enquiry regarding mesne profits from 26-6-1972 till the date of delivery of possession.
No costs.
33. After pronouncement of judgment, Mr. D. L. N. Rao, learned counsel for respondents submitted that the execution of the decree be stayed for a period of two months. Learned counsel appearing for the appellant submitted that she will not execute the decree till 10th of June 1989. This undertaking is recorded; hence it is not necessary to pass stay orders.
34. Appeal allowed.