Patna High Court
Dhuri Sah vs Kishun Prasad Sah And Ors. on 7 August, 1964
Equivalent citations: AIR1965PAT29, AIR 1965 PATNA 29
JUDGMENT K. Ahmad, J.
1. The property in, dispute in the present case is a house bearing municipal holding No. 125 of ward No. 8, within the Municipality of Bhagalpur. Admittedly, at one point of time, this was the property of one Anandi Sah. It is not disputed that on the 14th May, 1957, Anandi Sah and the other members of his joint family executed a deed of sale in respect of that house in favour of the plaintiff, who is appellant here, for a consideration of Rs. 5,000/-. It was admitted therein that out of the total consideration of Rs. 5,000/-, a sum of Rs. 2,430/- was already paid on the 20th April, 1957, by the vendee to the vendors and that the balance of Rs. 2,570/- was to be paid at the time of the admission of the execution before the Registrar.
The admission of the execution of the document was however, done by the two batches of the vendors on two dates. The sons of Anandi Sah admitted the execution before the Registrar on the 16th May, 1957, while their father did it on the 18th May, 1957, before the Registrar at his house. It is not denied that though, in accordanee with the stipulation made in the aforesaid deed of sale, the entire balance of the consideration money, viz., Rs. 2,570/-, was to be paid by the vendee at the time of the admission of the execution, but what was actually paid at the time by the vendee was only Rs. 200/-. The claim of the plaintiff is that thereafter on the 19th May, 1957, he paid a further sum of Rs. 2,200/- to Anandi Sah and in proof thereof got a receipt which is Exhibit 4 on the record. The remaining sum of Rs. 170/-, according to him, was left to be paid on the delivery of the registration receipt by the vendors to the vendee. But it is said that subsequently in spite of the attempt made on the part of the plaintiff to tender this amount of Rs. 170/- to the vendors, they did not accept the sum nor delivered to the plaintiff either the registration receipt or possession over the property. Hence the suit for declaration of title and recovery of possession in respect of the aforesaid house as also for mesne profits.
2. It appears that Anandi Sah died on the 26th May, 1957. Therefore, the present suit which was instituted on the 22nd January, 1968, was contested by his sons and grandsons alone, namely, defendants 1 to 8, who constitute defendants first party of the present case. The defence put up by these defendants, who alone have contested the suit, was; (1) that the story as set up by the plaintiff about the payment of Rs. 2,200/- to Anandi Sah was false and the receipt (Exhibit 4) was a forged and fabricated document, and (2) that under the terms of the aforesaid deed of sale the tilde in the house was to pass to the plaintiff only after the payment of the entire consideration money and, as the same was not paid, title did not pass to the vendee. Therefore, he was not entitled to any relief, either for declaration of title or for recovery of possession. Now, the general law is that title passes on the execution ana registration of the sale deed though the purchase money may remain wholly or partly unpaid, except where there is an agreement that the sale should take effect only if the consideration is first paid (vide Ramdhari Rai v. Gorakh Rai, AIR 1981 Pat 230).
In the present case, therefore, the registration of the aforesaid deed of sale having been completed on, the 18th May, 1957, the title should have ordinarily passed to the plaintiff on that date, unless there was a contract to the contrary. Here, however, there is a controversy raised, as already stated above, by the defendants that under the deed of sale under consideration title was not to pass to the vendee unless the entire consideration money was paid. Therefore, the two Courts below in order to find out as to whether there was any such term stipulated in the contract between the parties have elaborately gone into this question and, on coming to a concurrent finding that there was no such term in the contract, have held that here "title to the vended property had passed to the purchaser on the execution and registration of the sale deed in question."
This finding has not been challenged before me by Mr. Jaleshwar Prasad appearing for the defendants-
respondents. Therefore, new the present case has to be disposed of on the admitted footing that on the admission of the execution of the, aforesaid deed of sale on the 18th May, 1987, title in the house passed to the plaintiff.
3. We are thus left with the controversy, so far as the plaintiff is concerned, as to the recovery of possession and mesne profits. It appears that at the time when the aforesaid deed of sale was executed, the house was in the occupation of a monthly tenant, Shyam Bihari Jaiswal, at a rental of Rs. 30/- per month. He was, therefore also impleaded as a defendant in the suit and was arrayed as defendant second party. The Court below has disposed of the question of occupation of the house by him In these words:
"During the pendency of the suit, he, however, deposited in court the amount that was outstanding due from him as arrears of rent, and thereafter vacated the house, after depositing in court the key whereby the house had been locked by him while vacating the same. After this had been done, the name of Shyam Bihari Jaiswal had been expunged on 28-9-1959 by means of order No. 70 passed on that date".
Thus, it seems that since the 23rd September, 1959, the house has been under lock and key, and the key has been in the custody of the trial Court. Therefore, in these circumstances, the possession of the house can now be very easily taken by the plaintiff through Court by taking the key from its custody. In feet, this could have been done by the plaintiff much earlier, rather on the very day when the suit was decreed In his favour on the 1st October, 1959. But there is no evidence on the record that there was any application made by the plaintiff for possession over the house after the disposal of the suit at the trial or that, even if there was any, the same was ever objected to or resisted by the defendants. Nor is there any evidence to the effect that the house has ever been since the 23rd September, 1999, in possession of the defendants. Therefore the plaintiff, in these circumstances, can be entitled to mesne profits only for the period from the 18th May, 1957 to the 1st October, 1989. Further, it appears that the tent that was deposited by the tenant Shyam Bihari Jaiswal for this period in the Court has already been withdrawn by the plaintiff. That being so, the defendants are entitled to a set off in respect of that amount.
4. Then remains the plea raised by the defendants regarding the non-payment of a part of the consideration money. The trial Court accepted the story of the plaintiff as to his payment of Rupees 2,200/- to Anandi Sah on the 19th May, 1957, and found that Exhibit 4 was a genuine document Accordingly, it decreed the suit subject to the condition that the plaintiff would be entitled "to get the custody of the kebala in question (Exhibit 6A) which has been filed by the defendants in court after paying a sum of Rs. 170/-to the defendants first party as directed by me above, and to recover possession of the house."
The claim of the plaintiff is that in compliance with the aforesaid direction given by the trial Court he has already deposited the said sum of Rs. 170/-sometime in the month of November, 1959. But, thereafter, to appeal, the finding given by the trial Court in respect of the payment of Rs. 2,200/-by the plaintiff to Anandi Sab on the 19th May, 1957, has been reversed. The lower appellate Court has held, "that the plaintiff-respondent did not pay Rs. 2,200/- out of the consideration of the kebala to Anandi Sah on 19-5-1957, as had been asserted by him. It is further held that the receipt which had been relied upon to prove this payment and which had been marked Ext. 4 in the Court below, is not a genuine document."
Accordingly, the Court below in giving decree to the plaintiff has directed:
"The plaintiff-respondent is granted two months time with effect from this date, for depositing in the court below, the sum of Rs. 2,200/- which has been found to be still subsisting due out of the consideration of the kebala in question. In case the deposit is made within the period prescribed above, the decree of the court below will stand confirmed. If this is not done then the suit will have to be dismissed".
5. Mr. Bhabanand Mukherjee appearing for the appellant has strongly challenged the aforesaid finding given by the lower appellate Court in regard to the non-payment of Rs. 2,200/- by the plaintiff to Anandi Sah as also the finding to the effect that the receipt (Exhibit 4) is not a genuine document. Secondly, learned Counsel has also vehemently submitted that, in any case, the Court below was not justified to pass an order to the effect that if the deposit in respect of the aforesaid sum of Rupees 2,200/- was not paid within the time prescribed, the suit would stand dismissed. In support of his first contention, two points have been raised by Mr. Mukherjee: (1) that the finding as to the nonpayment of Rs. 2,200/- is perverse for the reason that in owning to it the Court below has failed to take into consideration the evidence of P. Ws. 2, 5, 10, 16 and 17 who deposed in support of the payment on behalf of the plaintiff; and (2) that in any case the Court below was wrong in giving any evidence to the evidence of the private expert (D. W. 8) examined on behalf of the defendants Now, so far as P. Ws. 16 and 17 are concerned, they are obviously interested persons, because P. W. 16 is the plaintiff himself and P. W. 17 is his son. Even the trial Court, though it has accepted their evidence, has not failed to observe that after all they are persons interested in the litigation. Therefore, in those circumstances, their evidence alone could not be conclusive on the payment of Rs. 2,200/- by the plaintiff to Anandi Sah as claimed by the father. The Court below, therefore, rightly reached the conclusion that the evidence of P. Ws. 16 and 17 was not to be relied upon, As for P. Ws. 2, 5 and 10, the ground given by the Court for not accepting their evidence is that P. Ws. 2 and 5 are chance witnesses and P. W. 10 was a person who was making pairvi in the suit or behalf of the plaintiff. It is true that the discussion made by the Court below in regard to the evidence of these three witnesses, P. Ws. 2, 5 and 10, is not as full and elaborate as made by the trial Court, but, in view of the broad facts found by the Court below against the veracity of these witnesses, I think there was little justification there after left for any further discussion about their evidence. That being so, the submission made by Mr. Bhabanand Mukherjee that there is no discussion made by the Court below in regard to the oral evidence of P. Ws. 2, 5, 10, 16 and 17 is wholly misconceived Then remains the second contention raised by Mr. Bhabanand Mukherjee, i.e., about the evidence of D. W. 8. No doubt, D. W. 8 was a private expert examined on behalf of the defendants, and that he had not been appointed as such by the Court, but that fact by itself cannot be a ground for holding that in the absence of any order in regard to his appointment as an expert, it was not open to the defendants to examine him on their own behalf. It is a different matter that the evidence of such an expert has to be appreciated in the light of the circumstances surrounding it. In this case the finding given by the Court below on the question of non-payment of Rs. 2,200/- by the plaintiff to Anandi Sah is based not exclusively on the evidence of D. W. 8 but on an elaborate consideration of the entire materials on the record. That being so, even the question of weight in regard to the evidence of D. W. 8 cannot, now in the circumstances, arise for consideration. Thus, the finding given by the Court below on the question at payment of Rs. 2,200/- by the plaintiff to Anandi Sah now stands concluded.
6. The second contention raised by Mr. Bhabanand Mukherjee relates to the condition imposed by the Court below that if the amount of Rupees 2,200/- is not paid within the period prescribed by it, the suit will stand dismissed. In this connection, Mr. Bhabanand Mukherjee has drawn my attention to Section 55(4) (b) of the Transfer of Property Act. That sub-section reads:-
"(4) The seller is entitled--
* * * * *
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered." Relying on this sub-section, Mr. Bhabanand Mukherjee has submitted that the remedy, if any, that is open thereunder to the defendants for the recovery of the balance of the consideration money which has been still left unpaid is by way of enforcement of the charge in a separate suit, and not by way of claiming repayment of the same as a condition against the plaintiff for recovery of possession.
In support of this contention, reliance has been placed by the learned Counsel on the decisions in AIR 1931 Pat 286; Rajkumar Singh v. Uchit Tatwa, AIR 1951 Pat 454 and Yella Krishnamrna v. Kotti-palli Mali, ILR 43 Mad 712: (AIR 1920 Mad 164). In my opinion, so far as the first two decisions are concerned, they do not throw any light on this controversial question. It is true that in the case of Ramdhari Rai, AIR 1931 Pat 236 there is an observation made by Chatterji, J. to the effect that, "Even if any part or the whole of the consideration remained unpaid the vendor had his appropriate remedies for recovery thereof by suit or by inforcing the statutory charge under Section 85 (4) (b), T. P. Act,"
but there is no observation made to the effect that any other remedy by way of defence or as a condition precedent to the claim made for recovery of possession by the vendee could not be sought for the recovery of the unpaid amount of the consideration money. The other decision in AIR 1951 Pat 454 is rather clearly in support of the view that a purchaser claiming relief for recovery of possession in such circumstances may be called upon to get the possession claimed after depositing the balance of the consideration money. Therefore, neither of these two authorities can be of any help to Mr. Bhabanand Mukherjee in support of the claim submitted by him.
The third authority, however, does, no doubt, lend support to the view canvassed by the learned counsel ILR 43 Mad 712; (AIR 1920 Mad 164). There the view taken by the learned Judges who decided that case was that a vendee who has not paid the purchase money can claim possession of such land and the Courts cannot pass a decree for possession conditional on payment of the price to the defendant-vendor. But as against this, there are decisions of the Allahabad, Calcutta, Bombay and Rangoon High Courts which give support to the view canvassed by Mr. Jaleshwar Prasad appearing for the respondents that such conditions can be imposed on the plaintiff seeking recovery of possession and declaration of title on the basis of the sale deed executed in his favour. The leading case of Allahabad on this point is Shib Lal v. Bhagwan Das, ILR 11 All 244 which was subsequently followed in that Court in the case of Mt. Pran Dei v. Sat Deo Tiwari, AIR 1929 Allahabad 85(2). In Shib Lal's case, ILR 11 All 244 Mahmood, J., on an elaborate discussion of the point, has observed:
"Such an action can be maintained by any one who, like the plaintiff in the present case, has acquired the ownership of immovable property, though, of course, in a case such as this, in common with some other classes of cases, equities may exist in favour of the defendant, so as to subject the decree for possession to restrictions and conditions appropriate to the circumstances of each case."
This view has been thereafter followed by the Calcutta High Court in Nilmadhab Parhi v. Haran Prosad Parhi, 17 Cal WN 1161. The learned Judges who decided that case while dealing with this question observed:
".....we are of opinion that the provisions of Section 55 of the Transfer of Property Act do not exclude the application of the principles of equity to the case before us. We entirely agree in the observation of Mr. Justice Mahmood in ILR 11 All 244 at p. 251, that in a case, such as this, an equity may exist in favour of the defendants so as to subject the decree for possession to restrictions and conditions appropriate to the circumstances of each case."
To the same effect is the view expressed by the Rangoon High Court in U. Ti v. M. P. M. S. Chettiar Firm, AIR 1933 Rang 401. It is true that in the case of Basalingava Revanshiddappa v. Chinnava Karibasappa, AIR 1932 Born 247 the form of the relier granted is slightly different to the one allowed in the aforesaid cases of Allahabad, Calcutta and Rangoon High Courts. But the difference made in this regard, I think, is more a question of form than of any substance, for even that form of relief is based on the same equitable consideration which weighed with the learned Judges in the aforesaid cases of the Allahabad, Calcutta and Rangoon High Courts. Therein the Bombay High Court instead of making the payment of the consideration money that was still left due as a condition precedent to the decree for possession, declared a charge on the property in favour of the vendor and thereby enabled him to enforce it by way of simple execution instead of a separate suit, This authority as well therefore in a way lends support to the view of the other three High Courts.
Further, on principle too, I think, there is no reason why, if not for any other consideration at least with a view to avoid multiplicity of proceedings and unnecessary harassment to the parties in respect of the same transaction, the rule of law as laid down by the Allahabad, Calcutta and Rangoon High Courts should not be accepted and the principle of equitable consideration as given effect to therein should not be acted upon. That being so, the direction given by the Court below in the decree under appeal as to the payment of the balance of the consideration money by the vendee is neither illegal nor invalid. This, therefore, disposes of the appeal filed by the plaintiff.
7. Then, there is the cross-objection filed on behalf of the defendants. Therein, the main relief sought is to the effect that no title under the aforesaid deed of sale, dated the 14th May, 1957, has ever passed to the plaintiff and, further, that the plaintiff is not entitled now oven to demand the return of the admitted amount of Rs. 2,630/-which was paid by him to the defendants as a part of the consideration of the aforesaid transaction. In view, however, of the finding as given by the Court below which has now been confirmed by me, there is no substance left in either of these two points. The last point raised by Mr. Jaleshwar Prasad appearing for the defendants relates to the claim of interest, In other words, the submission made by the learned counsel is that the decree passed by the Court below for the payment of the balance of the consideration money, which is still left unpaid by the plaintiff to the defendants, should not have been confined to the principal amount alone, but there should have been an order made also for the payment of interest thereon from the 18th May, 1957, when the execution of the document was admitted, up to the date of delivery of possession. Unfortunately, no such relief has been sought in the cross-objection nor there is any court-fee paid on the amount of interest. That being so, the claim for interest on the aforesaid sum of Rs. 2,200/- cannot now be agitated in this Court. Accordingly, this third contention also fails.
8. In the result, therefore, both the cross-objection and the appeal are dismissed, but the latter subject to the modifications as already made in regard to the mesne profits. Further, it is just and proper that the period of two months prescribed by the Court below for the payment of the balance of the consideration money should be directed to run from today and not from the date of judgment of the Court below. Lastly, in view of the facts and circumstances of the case, I think, the parties should bear their own costs, throughout.