Patna High Court
Girish Narain Singh And Anr. vs Akhtar Hussain And Ors. on 15 December, 1952
Equivalent citations: AIR1953PAT330, 1953(1)BLJR147, AIR 1953 PATNA 330
JUDGMENT Narayan, J.
1. This appeal has been brought by the plaintiffs, and it arises out of a suit for declaration of title and recovery of possession with regard to certain properties which originally belonged to one Siasaran Singh. Siasaran died leaving two widows and three daughters. The widows contracted debts amounting to Rs. 4520/-, and after their death the three daughters of Siasaran inherited all his properties. There was a division of the properties between the daughters and Ramdulari Kuer who was impleaded as defendant 3 in this action, as one of the daughters, got one-third of the properties and also took upon herself the liability to pay one-third of the total debts, that is a sum of Rs. 1506/10/8p. On 16-4-1942 she sold the properties in suit to Ramnandi Kuer, the mother of the plaintiffs, for a consideration of Rs. 3000/-. Out of the said consideration of Rs. 3000/-, Rs. 1646/0/8p was to be paid to the creditors in satisfaction of the debts which Ramdulari Kuer was liable to pay, and the balance was to be paid at the time when the registration receipt was handed over to the vendee. There was a further agreement to the effect that the husband of Ramdulari Kuer would execute a 'jarnanatnama' in favour of the vendee so as to compensate her in case there was any defect found in the vendor's title to the properties. Neither the registration receipt nor the sale-deed was handed over to the vendee, and she did not get possession of the properties covered by the kobala. On 10-4-1943 Ramdulari Kuer executed a document cancelling the kobala, and on 6-7-1943 she transferred the properties covered by the kobala to the defendants first party. The vendee Ramnandi Kuer died thereafter, and the plaintiffs who are the sons of Ramnandi Kuer instituted this suit on 6-4-1946. The contention of the plaintiffs is that with the execution of the sale-deed their mother acquired absolute title to the properties and that consequently they are entitled to recover possession of the properties after dispossessing the defendants.
2. The defendants first party are the main contesting defendants in this suit, and the contention's raised by them are that the sale-deed remained inoperative because the consideration money was not paid and that the intention of the parties to the sale-deed was that title would not pass until the consideration was paid.
3. The Court of first instance decreed the suit, but on appeal by one of the defendants first party its decision was reversed by the learned Additional District Judge of Patna. The learned Additional District Judge was of the opinion that the intention of the parties was that title would not pass until the consideration was paid, and that as the consideration had not been paid in spite of notice to the vendee the sale-deed had remained inoperative. The learned. Additional District Judge, therefore, dismissed the suit but with this condition that the plaintiffs who had paid Rs. 164/15/- in satisfaction of a decree would be entitled to deduct this amount from the costs awarded to the defendants-appellants.
4. The counsel for the appellants relied on the definition of 'sale' as given in Section 54, T. P. Act, the word 'sale' having been defined as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. And the counsel for the respondents relied on a very recent decision of this Court reported in -- 'Motilal Sahu v. Ugrah Narain Sahu', AIR 1950 Pat 288 (A) to which I was a party. As I felt that I had not received sufficient assistance from the counsel for deciding this important point, I took time to examine the authorities on the subject and to consider as to which of them could be applied to the facts of this case. Undoubtedly, there has been some conflict of judicial opinion on the question as to whether or not title would be deemed to have passed as soon as a sale-deed is registered and as to whether the mere non-payment of consideration will not render the sale-deed inoperative. Most of the decisions which have got a bearing on the question had been referred to by Ray J. in -- 'Md. Murtaza Hussain v. Abdul Rahman', AIR 1949 Pat 364 (B); against whose judgment there was a Letters Patent appeal. Personally, also I have examined most of the authorities and especially those which have been mentioned by Ray J. in his judgment, and, in my opinion, the point raised before me in this particular case can be decided quite easily on the basis of the principles which have been laid down in the three latest decisions of this Court, namely, the decisions reported in -- 'Pirtam Singh v. Jagannath Sarawgi,' AIR 1947 Pat 1 (C); AIR 1949 Pat 364 (B) and AIR 1950 Pat 283 (A) which was cited by Mr. B. C. De for the respondents.
5. The first of these three decisions, has been referred to in the judgments of both the courts, and I think the view which the lower appellate Court has taken about this decision is the correct view. The circumstances in that case were quite strong for leading the Court to the conclusion that the intention of the parties was that the sale became complete as soon as the document was registered. A portion of the consideration had been paid, and the argument advanced was that the title was not to pass until the entire consideration, was paid. This argument was negatived on the ground that even if the recital in the deed with regard to the payment of the consideration was ambiguous, a deed of agreement which had been executed by the vendor was conclusive for the purpose of showing that the parties intended that the sale would be complete upon the registration of the document. It appears that the deed of agreement was executed on the very day on which the sale-deed had been executed, and it recited that the vendor had received Rs. 216/- out of the consideration money and had made over the sale-deed to the vendee and had also undertaken not to sell the property to anybody else. The learned Judge against whose judgment Fazl Ali C. J. and Manohar Loll J. heard the appeal had pointed out that the sale deed would not have been made over to the vendee if the intention had been that title would not pass until the payment of the entire consideration, and that the undertaking given not to sell the property also indicated that the sale would be complete upon registration. Fazl Ali C. J. who delivered the judgment of the Letters Patent appeal said that the learned Single Judge had taken the correct view and had rightly pointed out that even if the sale-deed was ambiguous, the agreement which had been admittedly entered into by the parties would show that title was intended to pass upon the execution of the sale-deed. Whatever ambiguity there existed in the recital of the sale-deed was thus taken to have been made clear by the execution of the deed of agreement and the undertaking given by the vendor. The lower appellate Court was perfectly justified in holding that this ruling could rot easily be applied to the facts of this present case.
6. On the other hand, the facts of AIR 1949 Pat 364 (B), which had originally been decided by Ray J. sitting Singly have a very close resemblance to the facts of this present case. In that case the sale-deed had never been delivered to the plaintiff and a notice had been given to the plaintiff to pay the consideration money, failing which the sale-deed would not be given effect to. The trial Court had found that the plaintiff had never tendered the consideration money, that the sale-deed had never been made over to him and that the possession of the properties covered by the sale-deed bad also not been transferred to him. But relying upon certain decisions, the trial Court held that the execution and the registration of the sale-deed were sufficient to convey title to the plaintiff. The defendants preferred an appeal against this decision, and the lower appellate Court dismissed the suit. Ray J. reviewed most of the decisions on the question, and he came to the conclusion that the propositions deducible from the rulings are :
"(1) Mere execution and registration of a sale-deed without more will not be enough to pass the title from the vendor to the vendee; (2) it will depend upon the intention of the parties in relation to the transaction; (3) in gathering the intention of the parties in view of the provisions of Section 92, Evidence Act, the Court must confine its attention first to the contractual part as distinguished from the recital part of the sale-deed and in case these recitals are clear, no extraneous evidence either consisting in the conduct of the parties or in any other facts and circum-stances will be admissible; (4) and in case the contractual, and, therefore, the operative part dealing with disposition of property is found to be ambiguous, the intention of the parties will have to be gathered from extraneous circumstances including their immediately subsequent conduct in relation to the transaction. Amongst such conduct retention of the sale-deed by the vendor in all circumstances is a very important one."
This decision was affirmed in the Letters. Patent appeal by Agarwala C. J. and Meredith J., and their Lordships were of the opinion that if the recital in the document shows that the intention of the parties was that title would Pass on the passing of the consideration, and if it is found as a fact that despite the recital acknowledging the receipt of the consideration money, it was not paid, then the conclusion is irresistible that it was not intended that title should pass with the registration of the document. Meredith J., while agreeing with the decision of Ray J. made the following observation :
"Bearing all this in mind, let us turn to the present case. Ray J., on a consideration of the terms of the document alone, has taken the view that the intention of the parties was that the receipt of consideration and the transfer of title should be simultaneous, or, as he says, 'contemporaneous'. I agree with that view because it is clearly stated that the sale is made in exchange for the price, and the vendee is made owner and put in possession, as the document says, 'after realisation of the entire consideration money in cash.' I think, however, one should go further. The recital in the document that the entire consideration had been received is an incorrect statement of the state of affairs at that time. It is admitted that the consideration had not been paid and never has been paid. It is permissible, on the principles I have expressed already, to show the incorrectness of this recital, because the incorrectness of the recital shows a latent ambiguity. Once it is shown that what is stated in the document, though clear in itself, is not correct in relation to the existing circumstances or unmeaning in reference to existing facts, then problem arises as to what, by making these incorrect statements, the parties really meant. The statements being incorrect a latent ambiguity arises. In this view there is a latent ambiguity in the present document, and that being so, we are, in my view, entitled to turn to extraneous evidence. Once we can do that, we can take into consideration the fact that the consideration was not paid, 'as bearing on the intention of the parties', and we can also take into consideration two other admitted facts, that the vendor retained the sale-deed all along and never made it over to the vendee, and possession, though stated to have been delivered, was never delivered."
7. This decision was followed by me and Sinha J. in AIR 1950 Pat 288 (A), and we observed as follows :
"Both the Courts below have found that possession was never delivered to the purchasers, nor was the registered sale-deed itself, which continued in the custody of the vendor. Both the Courts below have agreed in finding that not a single farthing passed under the document. Hence, the construction, which was put in the case referred to, AIR 1949 Pat 364 (B), is the construction which must be placed upon Ex. A. The inference, therefore, is irresistible that the intention of the parties was that title would not pass if money had not been paid, and as the money had not been paid, the title remained where it was. In ether words, the transaction was a dead letter. That being so, the decision of the learned Munsif was more correct and the decision of the lower appellate Court was a confused one, inasmuch as the lower appellate Court has divorced the question of title from the question of possession. If title was to pass on the execution of the sale-deed, certainly the vendees were entitled to possession also. But the lower appellate Court has found that it was intended that possession would pass only upon payment of the consideration money. That, In effect, amounts to a finding that the contract between the parties was that title would pass to the vendees only upon payment of the consideration money. That not having been done, it is clear that title remained where it was, namely with the vendor, the defendant-appellant. The lower appellate Court has rightly observed that the contract between the parties must be determined with reference to the sale-deed itself, and, on a reference to the deed itself, it is clear, as already pointed out, that the parties intended that the passing of the consideration was 'sine qua non' of the passing of the title."
8. These two decisions appear to me to be conclusive of the point raised before me. The sale-deed in question in this present case was for a consideration of Rs. 3000/-, and the only amount that has been paid out of this consideration is a sum of Rs. 164/15/- which had to be paid for satisfying a money decree. This payment was made without the knowledge of the vendor, and several months after a notice had been served on the vendee, the mother of the plaintiffs. The payment of the small sum of Rs. 164/15/- out of the consideration of Rs. 3000/- and that without the knowledge of the vendor and several months after the Service of notice on the vendee which remained unreplied cannot advance the plaintiffs' case in the least. The recital in the sale-deed shows that the vendor urgently required money for paying off the rehan debts and also for paying the decretal amount of Rs. 139/6/- payable concerning a suit or an execution proceeding pending in the Court of First Munsiff at Patna. A Film of Rs. 2870/- was to be paid on account of a rehan bond dated 20-7-1931 and the sums of Rs. 900/-, Rs. 500/- and Rs. 250/- had to be paid in connection with rehan bonds dated 29-3-1923 and 6-7-1934. The document recites that "if payment is not made, considerable property will be ruined, and there will be a danger of the paternal estate of the vendor being sold and ruined."
The lady required the remaining amcunt of Rs. 1353/15/4p for performing Gaya shradh of her parents, for payment of Government revenue and cess, for meeting necessary household expenses and also for the maintenance of the minors. The document says that on realisation of the entire consideration the vendor has put the vendee, in possession and occupation of the vended property. No portion of the consideration was actually paid, and therefore if it is recited that the vendee has been put in posession on the payment of the entire consideration, that is an absolutely incorrect recital. It is further recited that the vendee shall pay the balance of Rs. 1353/15/4 at the time of the "exchange of equivalents" or 'taqabzul-badlain.' The expression 'taqabzul-badlain' or "exchange of equivalents" means that the registration receipt will be handed over to the vendee after he has paid the consideration money. The fact that this amount had to be paid at the time of what is called 'taqabzul-badlain' which never happened has to be considered along with the fact that the intention was that on realisation of the entire consideration the vendee will be put in possession and occupation of the vended property. It therefore seems manifest that the intention of the parties to this sale-deed was that title would pass on the payment of the consideration money, and the consideration had to be paid at the time of the 'taqab-zul-badlain'. No 'taqabzul-badlain' ever took place, and the vendee neither cared to pay the amount which had to be paid in cash, nor did he pay the amount which had to be paid to the creditors. What is said to have been paid is the amount of Rs. 139/6/- and interest thereon in satisfaction of the decree. This was, more or less, a surreptitious payment made on 20-2-1943, On 12-9-1942 the vendor had sent a notice to the purchaser, and in this notice she says that the sale-deed had been fraudulently taken from her and that in any case the 'taqabzul-badlain' must take place within a month, otherwise the sale-deed will be cancelled. It is very important that no reply was sent to this notice, and therefore on 10-4-1943 the vendor executed a document cancelling this sale-deed. Undoubtedly, the lady was in urgent need of money for paying the creditors and also for necessary expenses. But still the vendee did not care to make any payment and kept silent when she was served with a notice for having the 'taqabzul-badlain' effected. This is, therefore, a case in which the sale-deed had not been made over to the vendee, possession had not been transferred to her, and no portion of the consideration money had been paid (the surreptitious payment of a small item being of no consequence). The recital, as I have already held following the latest authorities of this Court, shows that the intention was that title will not pass unless the consideration has been paid.
9. Apart from these circumstances, there is another very strong circumstance which shows that the intention of the parties could not in this case be that title will pass with the registration of the document. There was a stipulation that the husband of the vendor will execute a jamanatnama for compensating the vendee in case a defect was found in the vendor's title to the properties. This jamanatnama was never executed, and in the objection petition which the plaintiffs' mother had filed before the Land Registration Officer she had said that the remaining amount of consideration was to be paid on Ramdulari Kuer executing a security bond. As a matter of fact, the recital in the document is not to this effect that the remaining amount of consideration will not be paid until the jamanatnama was executed. As I have already pointed, Rs. 1353/15/4p had to be paid at the time of the 'taqabzul-badlain'. The stipulation with regard to the execution of the jamanatnama is a separate and an independent stipulation, and it is in these terms.
"As I have sold the entire share of the inherited property for self and as guardian of the minors, the vendee is entitled to get a security bond executed pledging the immoveable property of my husband. With a view to obviating all rooms for defects in future as also for assurance and. satisfaction of the vendee it is necessary for me to get the security bond executed. Accordingly my husband Babu Bindeshwari Prasad, alias, Rajendra Prasad Singh has this day executed a security bond in favour of the vendee pledging thereunder his 'khas' property."
Because the agreement was that a certain jamanatnama would be executed in connection with this transaction and because no such jamanatnama was executed, the vendee as she says, did not pay consideration money, and what she has stated in the objection petition gives the impression that she did not treat the sale up till the date she filed the objection petition as a perfected transaction.
10. I am, therefore, of the opinion that this appeal is not fit to succeed, and I would dismiss it with costs.