Patna High Court
Pradyaman Prasad Singh vs Mahadeo Singh And Ors. on 1 December, 1948
Equivalent citations: AIR1950PAT85, AIR 1950 PATNA 85
JUDGMENT Sinha, J.
1. This is a plaintiff's second appeal from the decision of the learned District Judge of Bhagalpur, reversing that of the Munsif of Banka in a suit for redemption. The plaintiff claimed title to the property by virtue of the sale-deed executed by the owner of the property on nth May 1943, in his favour. The land belonged to Nirpat, who mortgaged it to the defendant, first party, on 12th May 1928. On 24th April 1942, the owner purported to sell the property to Pabitra Mistri. But the plaintiff's case is that that document was not given effect to, because the vendee was not in a position to discharge his liabilities under the contract. That is to say, he expressed his inability to pay the consideration money. Thereupon, the mortgagor sold the property to the plaintiff.
2. The suit was contested by the mortgagee on the grounds: (1) that the plaintiff had no title to maintain his suit, the land in question having been conveyed already by the aforesaid deed dated 24th April 1942, in favour of Pabitra Mistri, and, (2) not very consistently with the first ground, that the mortgagor had sold the land to him by virtue of a deed dated 20th June 1943.
3. The trial Court decreed the suit, holding that the plaintiff was entitled to redeem, as his previous sale-deed in favour of Pabitra Mistri of the year 1942 had been made ineffective as Pabitra Mistri expressed his inability to meet his obligations under the deed. The Court, also, negatived the alternative defence that the property had been conveyed to the mortgagee himself. On appeal by the mortgagee, the lower appellate Court has dismissed the suit, holding that, in spite of the fact that it was common ground that consideration did not pass under the deed of 1942, nor was there what is popularly called exchange of equivalents under the deed, all the same, as there was not specific stipulation in the deed itself that the title would not pass until the entire consideration money had been paid, title did pass to Pabitra Mistri, and that, therefore, the plaintiff had no locus standi to claim redemption. Hence, this second appeal by the plaintiff.
4. Learned counsel for the plaintiff-appellant has contended, and, in my opinion, rightly, that the learned District Judge has misdirected himself in raising the question of intention of the parties to the deed when the parties to the deed themselves have unequivocally made out the case that the document remained ineffective. The learned District Judge has made reference to certain rulings of this Court, where it has been laid down that ordinarily title would pass to the vendee even though consideration money may not have been paid, unless there was stipulation to the effect that title would not pass until after the passing of consideration. But, in my opinion, the learned District Judge has misdirected himself in holding that, because there is an unequivocal admission of the receipt of the consideration money in the deed of 1942, the parties were estopped from proving otherwise. This is a mere admission, which could be proved to be wrong, and the Courts below have found that that admission was wrong. It has, also, been found by the Courts below that the vendor did not deliver the sale-deed to the vendee, because the latter was not in a position to pay the consideration money, and that the parties were thus agreed that the matter was at an end. Pabitra Mistri has been examined for the plaintiff, and he has supported his case and stated that the document remained ineffective as he was not in a position to take delivery of the sale-deed on payment of the consideration money. Hence, all the discussion in the judgment of the learned District Judge on appeal as to whether or not there was a stipulation in the deed itself is wholly irrelevant. This is not a case as between a vendor and a vendee, as both the parties are agreed that the sale deed remained ineffective as between them. Hence, the position is that, though there was a registered sale-deed, it remained inoperative as the parties were agreed not to give effect to the same. The learned District Judge has been led away by those rulings, which were given in quite a different set of circumstances. As already indicated, this was not a matter arising between the vendor and the vendee. In the present case, the question was between the mortgagee in possession and the plaintiff, who was claiming by virtue of a sale deed in his favour executed by the mortgagor. If the mortgagee could prove that Pabitra Mistri's deed was given effect to certainly the plaintiff would be out of Court. But that finding has not been recorded by the lower appellate Court. On the other hand, the learned Munsif clearly recorded the finding that the document was not given effect to. That finding has not been set aside by the learned District Judge. But he has gone on to consider a question which really did not arise on the pleadings of the parties. In my opinion, the learned District Judge was wrong in raising that question of intention as between the vendor and Pabitra Mistri, the proposed vendee. In my opinion, the learned Munsif was perfectly justified on the finding arrived at by him in decreeing the suit. As the only reason given by the learned District Judge for reversing the decision of the learned Munsif is erroneous in law, the appeal must be allowed and the suit decreed with costs throughout.