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PETITIONER: BISHUNDEO NARAIN RAI (DEAD) BY L.RS & ORS.

       Vs.

RESPONDENT: ANMOL DEVI AND ORS.

DATE OF JUDGMENT:       20/08/1998

BENCH: K. VENKATASWAMI, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T QUADRI, J.      This appeal  raises the  question: whether on the facts and in  the circumstances of the case, sale deed dated April 30, 1963  (Exhibit -C) executed by the first defendant group in favour  of the  plaintiffs conveyed absolute title to and interest in the suit property.      The facts  which give  rise to  this  question  may  be noticed here.      The  plaintiffs   (Predecessors  -in-interest   of  the appellants,  hereinafter   referred   to   as   ’the   first purchasers’) purchased land measuring 9 bighas 17 kathas and 12 dhoors,  (hereinafter referred to as ’the suit property’) from Defendant  No. 1  as Karta  of H.U.F.  and its  members (predecessors-in-interest of  Respondents 6,7,9,  10 and 11, hereinafter  referred   to  as   ’the  vendors’)  under  the registered sale  deed dated  April 30,  1963 (Exhibit-C). On the alleged  ground of  the first  purchasers not paying the entire consideration  amount the  vendors  by  a  registered document dated June 19, 1963, Exhibit-H, purported to cancel Exhibit-C, and  on July 8, 1963 executed a second sale deed, Exhibit C/1,  in favour  of respondents  1 to 5 (hereinafter referred to  a’ the  second purchasers).  Coming to  know of these facts, the first purchasers filed Title Suit No. 64/63 in the  court of the Subordinate Judge, Samastipur, District Darbhanga. They claimed that under the sale deed dated April 30, 1963,  Exhibit-C, they  purchased the  suit property for valuable  consideration,   and   acquired   absolute   title thereunder and that out of sale consideration, only a sum of Rs. 235/-  remained to  be paid, which they deposited in the court to  the credit  of the  vendors along with the plaint; that Exhibits  H and  C/1 were  illegal, ineffective and not binding on  the first  purchasers. They prayed that the said Exhibits H  and C/1  be declared  illegal, invalid  and  not binding on  them, decree  be granted  against the vendors to deliver the  original sale  deed dated  April 30,  1963  and against the mortgagees for redemption of suit property.      The  vendors   resisted  the  suit;  in  their  written statement it was pleaded that the parties agreed that if the first  purchasers   did  not   pay  the   entire  amount  of

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consideration, they would not get title or possession of the suit property; the total sale consideration was Rs. 15,000/- , out  of which  Rs.6, 249/-  were kept  in deposit as being payable to  the mortgagees  under Sudhbharna bond dated July 29, 1946,  Rs. 516/-  were set off, being the amount payable to the first purchasers by the vendors, and that the balance consideration of  Rs. 8,235/-  was agreed to be paid in cash to the  vendors on  the date  of registration. But the first purchasers paid  only Rs.  5,000/- in  the presence  of  the Registrar and  promised to  pay the  balance of  Rs. 3,235/- later; the registration receipt was kept with the vendors to be endorsed in favour of the first purchasers at the time of payment of the said amount. However, neither subhbharna bond amount of Rs. 6,249/- was paid to the mortgagees nor did the first purchasers  endeavour to  redeem the mortgage nor paid the balance  of consideration of Rs. 3,235/- to the vendors, therefore, the vendors cancelled the sale deed Exhibit- C by executing Exhibits  H on  June 19,  1963 and  sold the  suit property in favour of the second purchasers under registered sale deed on July 8, 1963 (Exhibits C/1).      The mortgagees  by filing  a separate written statement supported the case of the vendors.      On these  pleadings, the  parties went  on trial on the following, among other issues:      "Issue   No.    4:   Whether    the      plaintiffs derived  a good while to      the suit  property under  sale deed      dated   30.4.1963    executed    by      defendants first  party or  whether      that sale  deed for want of payment      of consideration was fraudulent and      nominal one.      Issue  No.  5:  Whether  sale  deed      dated  8.7.   1963  was   true  and      binding on the parties.      Issue   No.    6.:   Whether    the      plaintiffs are  entitled to  decree      to this  effect that  in precedence      of the  sale deed dated 30th March,      1963, the  other sale  dated  dated      8th   July,    1963   is   invalid,      ineffective and  not binding on the      parties."      On consideration  of oral and documentary evidence, the trial court  held:  (i)  on  execution  of  the  sale  deed, Exhibits C,  title to the suit property had passed in favour of the  first purchasers;  (ii) the  plea of  payment of Rs. 3000/-,  part   of  the  sale  consideration  by  the  first purchasers, was  not true;  and (iii)  the first  purchasers were liable  to pay  Rs. 3,  235/- to  the vendors; and (iv) permitted the  first purchasers  to deposit of ’bharna dues’ and redeem the mortgage within three months from the date of the decree  and decreed the suit accordingly on December 20, 1968. It  is not  in dispute  that the first purchasers have deposited the mortgage amount and redeemed the mortgage. The mortgagee is no longer in the picture.      Aggrieved by  the judgment  and  decree  of  the  trial court, the  vendors and  the second  purchasers filed Appeal from Original Decree No. 68/69 in the High Court of Patna. A Division Bench  of the  Patna High  Court on re-appraisal of the evidence on record believed payment of Rs. 3,000/- under Exhibit -6  by the  first purchasers and in that it reversed the findings  of the  trial court;  however, it  came to the conclusion that the major consideration had not been paid to the vendors;  that there  was agreement  between the parties

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that title  would pass only on payment of full consideration and so  the registration  receipt was kept with the vendors. In that  view of  the matter  it set  aside the judgment and decree of  the trial court and allowed the appeal on May 12, 1980. It  is from   that  judgment and  decree of  the  High Court, the appeal arises.      Mr. S.  B. Sanyal,  the learned  senior counsel for the appellants, has  submitted that  under sale deed Exhibit- C, absolute title  to the  suit property  was conveyed  to  the first purchasers  and that the entire sale consideration was paid, except  a paltry sum of Rs. 235/- which was refused to be accepted  by the  vendors and was deposited in court; the intention  of   the  parties  was  to  convey  the  property absolutely and  that there  is no  contra-stipulation in the sale deed;  mere retention of registration receipt would not show any  contra-intention as  such execution  of Exhibit- H and Exhibit-  C/1 was  wholly illegal  and they  conveyed no title to  the second  purchasers. He  added that even if any part of  consideration remained  unpaid, the  remedy of  the vendors was  under Section  54 (4)(b)  of  the  Transfer  of property Act.      Mr.  Rakesh   Dwivedi,  the   learned  senior   counsel appearing  for   the  contesting  respondents,  invited  our attention to  the averments  in  para-4  of  the  plaint  to support this  contention that  the intention  of the parties was that  the title  would not  pass to the first purchasers immediately on  the execution  and registration  of the sale deed but  would  pass  only  on  ’exchange  of  equivalent’, namely, on  handing over  registration  receipt  by  vendors after payment of (a) Rs. 3, 235/- by the first purchasers to Defendant No.1,  and (b)  Rs. 6, 249/- to the mortgagees; as the first  purchasers neither  paid Rs.  3235/- nor redeemed the mortgage  nor deposited the sudhbharna bond money in the court along  with the plaint thus the consideration remained unpaid. On  this premise  he argued  that the High Court had rightly held  that there was stipulation between the parties that the  title would  pass on payment of full consideration which not  having been  done, the plaintiffs got no title to the suit property.      Ms. Abha  Sharma, the learned counsel appearing for the second purchasers, adopted the argument of Mr. Dwivedi.      Apropos  the  question  noted  above,  a  reference  to Section 54 of the Transfer of Property Act will be apposite. While defining ’Sale’, Section 54 sets out how sale is made. Sale is  defined to mean a transfer of ownership in exchange for price paid or promised or part paid or part promised; it says, inter  alia, in case of tangible immovable property of value of  Rs. 100/-  and upward or in case of a reversion or other tangible things, sale can be made only by a registered instrument. Section  8  of  the  Transfer  of  Property  Act declares that  on a  transfer of  property all the interests which the  transferor has or is having at that time, capable of passing  in the  property  and  in  the  legal  incidence thereof,  pass   on  such  a  transfer  unless  a  different intention is  expressed or  necessarily implied.  A combined reading of  Section 8  and Section  54 of  the  transfer  of property  Act   suggests  that   though  on   execution  and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on terms and  conditions embodied  in the  deed indicating  the intention of  the parties.  It follows that on execution and registration of  the sale, deed, the ownership title and all interests in  the property  pass to  the purchaser  unless a different  intention  is  either  expressed  or  necessarily implied which  has to  be proved by the party asserting that

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title has  not passed on registration of the sale deed. Such intention can  be gathered  by intrinsic  evidence,  namely, from the  averments in  the sale  deed itself  or  by  other attending  circumstances   subject,  of   course,   to   the provisions of Section 92 of the Evidence Act.      To ascertain the intention of the parties in this case, we shall read here the relevant portion of Exhibit-C :      "Whereas, we  the executants  stand      in need  of Rs. 6,249/- (Rupees six      thousand  and   two  hundred  forty      nine) under a registered Sudhbharna      bond  dated  29.7.46  due  to  Babu      Damodar Rai  and Babu  Rameshar Rai      residents of  Shakarpura  and  also      Rs. 516/- (Five hundred Sixteen) on      calculation of  account due  to the      claimant.  Further   at  present  I      stand in need of Rs. 8,235/- (Eight      thousand two  hundred thirty  five)      for  making   payments   to   petty      creditors and  also for purchase of      bullocks,  cultivation   work   and      legal necessities.  But there is no      way out  to arrange  for the  money      without selling the above mentioned      land. Hence,  we the  executants of      our own  accord and  free will,  in      the sound  state of  body and mind,      without    pressure    and    undue      influence and  instigation  on  the      part of  others absolutely sold and      vended the  properties mentioned in      column No.  5, possessed by us, for      a price  mentioned in  column No.4,      to   the   vendees   namely,   Babu      Brahamdeo Narain  Rai  and  others,      the purchasers, mentioned in column      No.2. We  have left in deposit with      the said  vendees a  sum of  Rs. 6,      249/-  out   of  the  consideration      money.   They    should   pay   the      Sudbharna money  through themselves      and   keep    the   document   with      themselves  along   with  the  sale      deed. We  set of  Rs. 516/- (Rupees      five hundred  sixteen) to  the said      vendees and  they  shall  meet  the      aforesaid necessities  and  we  put      the said  vendees in possession and      occupation of the properties vended      hereunder. It  is desired  that the      said vendees  should enter into and      remain possession and occupation of      the properties vended hereunder and      get their  names  recorded  in  the      office  of   the  State   of  Bihar      through the  Hasanpur Anchal.  They      should continue  to appropriate the      produce on  payment of  rent to the      landlord.      A plain  reading of the recitals extracted above, shows that:      (1) The  vendors sold and vended the property mentioned in  Column   5  *\(the   suit  property)  for  consideration mentioned in  Column -4(Rs. 15,000/-) which was specified as

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follows:      ’(i) a  sum of  Rs. 6,249/-  to  be      kept in  deposit with  the  vendees      for  paying  the  ’sudhbharna  bond      money’ due  to Babu Damodar Rai and      Babu Ramchander Rai of Shakarpura;      (ii) a  sum of  Rs. 516/-which  was      due by  the vendors  to  the  first      purchasers to  be adjusted  as part      of the sale consideration; and      (iii) a  sum of  Rs. 8,235/-  to be      paid in cash to the vendors.’      (2) The  vendees were  to keep  the      documents clearing  the  debt  with      themselves  along   with  the  sale      deed;      (3) The vendors had put the vendees      in possession and occupation of the      property stating  that they  should      enter and  remain in possession and      occupation of  the property  vended      thereunder;      (4) The vendees may get their names      recorded in the office of the State      of  Bihar,   through  the  Hasanpur      Anchal; and      (5) The  vendees should continue to      appropriate the  produce on payment      of rent to their landlord.      These  averments  unmistakably  indicate  conveying  of title  to  the  property  absolutely  for  consideration  as cutlined; by  virtue of  the sale the purchasers were put in possession of  the property conveyed, became entitled to the custody of  the sale  deed and other documents and enjoyment of the  property by  them. These  factors  satisfy  all  the requirements of  absolute sale.  No recital  in Exhibit-C is brought to our notice to indicate any contra-intention. What is, however,  argued is that out of the consideration, a sum of Rs. 3,235/- remained unpaid; that the mortgage loan under ’Sudhbarna bond dated 29.7.1946’ was not discharged and that the registration  receipt was  retained by the vendors so it is manifest  that the  intention of the parties was that the title would  not pass  to the  purchaser  on  execution  and registration of  Exhibit-C. We  are not  impressed  by  this submission. It appears that in the State of Bihar a practice is prevalent  that when  whole or part of sale consideration is due  or any  other obligation is undertaken by the vendee then on  execution and  registration of the sale deed by the vendor title  to the  property, subject matter of sale, does not pass  ’Ta Khubzul  Badlain’, that  is,  Until  there  is ’exchange of  equivalent’ and  in such  a case  registration receipt is  retained by  the vendor,  which  on  payment  of consideration due or on fulfillment of the obligation by the vendee is  endorsed in  his favour  or if  the sale deed has already been  received by  the vendor  then the sale deed is delivered to  the vendee. Even so, this only shows that such agreement are  common in  that part of the country but it is essentially a  matter of  intention of the parties which has to be  gathered from the document itself but if the document is ambiguous  then from the attending circumstances, subject to the provisions of Section 92 of the Evidence Act.      We have  already referred to the findings of the courts below. Although  the trial  court found  that Rs. 3,000/-, a part of  the consideration,  was not  paid, the  High  Court relying upon  receipt, Exhibit-6,  held that  it was paid on

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May 5, 1963, as claimed by the first purchasers; the balance of consideration  of Rs.  235/- was  admittedly deposited by the  first   purchasers   in   court.   Thus,   the   entire consideration was paid by the first purchasers. Further, the High Court  expressed  the  view  that  not  depositing  the sudhbharna bond  amount or  Rs. 6,249/-  in court  would  be fatal to  the case  of the  first purchasers.  That view  is contrary to  the judgment  of a  Division Bench of the Patna High Court  in Shiva  Narayan Sah  & Ors.  Vs.  Baidya  Nath Prasad Tiwary  & Ors.  (Air  1973  Patna  383).  We  are  in agreement with  the opinion of the Patna High Court in Shiva narayan Sah’s  case that  depositing the  mortgage amount in court is  one of  the three  ways available to the mortgagor before filing  a redemption  suit and  that he  was free  to choose any  mode; non-deposit of the rule mortgage money was not fatal  to the suit. Further, as the first purchasers had deposited that  amount in  terms of  the decree of the trial court,  this   point  is   not  available  to  the  vendors. Therefore, on  that ground,  it cannot be said that  part of the the consideration was not paid. In any event, as sale of suit property  under Exhibit-C  was subject  to mortgage, it was for  the vendee  to discharge  the mortgage  debt so any default or  delay in  payment  the  said  amount  cannot  be construed as  non-payment of  consideration. On construction of  Exhibit-C,   we  find  that  the  recitals  whereof  are unambiguous and that the parties have expressed no intention that unless the sudhbharna bond amount is paid, the title to the suit  property will  not pass  to the  vendee. The  only ground that  remains is  non-delivery  of  the  registration receipt by the vendors to the first purchasers which appears to be  due to  subsequent developments, namely, execution of Exhibit-H and Exhibit- C/1, so it cannot be said to indicate an intention  which interdicts passing of title to the first purchasers under  Exhibit- C. We may observe that it was not open to  the vendors  to unilaterally  cancel  Exhibit-C  by executing Exhibit  -H. The  trial court on interpretation of Exhibit -C came to the conclusion, in our view rightly, that (1) title  to the  suit property  passed  on  to  the  first purchasers on  execution and  registration of Exhibit-C, but the High  court reversed  that finding for reasons which, as pointed out by us, are unsustainable.      In Panchoo Sahu vs. Janki Mandar & Ors. [AIR 1952 Patna 263], a  Division Bench  of the  Patna High Court found that there was  a recital  in the  sale deed which indicated that the  title   would  pass  only  on  payment  of  the  entire consideration. So  that was  the case where intention of the parties was  reflected in  the sale  deed itself. So also in Hara Bewa  & Ors.  vs. Banchanidhi  Barik &  Ors. [AIR  1957 Orissa 243], a Division Bench of the Orissa High Court found that the  recitals in  the sale  deed  were  indecisive  and ambiguous, therefore,  the court took into consideration the surrounding circumstances  including the fact of the custody of the  document with  the vendor  and held on the facts and circumstances of that case that the intention of the parties to the  first sale  deed was  that the  vendee would not get title on the basis of the sale deed unless the consideration was paid.      The  learned   counsel  or   the  parties  invited  our attention to the following judgments of the Patna High Court viz., [Kamta  Prasad vs.  Lachmi Sah  & Ors. (AIR 1929 Patna 550); Umeshwar  Prasad Sinha  vs. Dwarika  Prasad (AIR  (31) 1944 Patna  5); Sarjug  Saran Singh  vs.  Ramcharitar  Singh (1968 (16) Bihar Law Journal Report 74); Shiva Narayan Sah & Ors. vs.  Baidya Nath  Prasad Tiwary & Ors. ( AIR 1973 Patna 386);  and   the  Judgment  of  the  Orissa  High  Court  in

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Ramchandra Biharilal  Firm vs. Mathuramohan Naik & Ors. (AIR 1964 Orissa  239). We  have gone through those judgments and find that  they are in conformity with the view expressed by us hereinabove.      In the result, we set aside the judgement and decree of the High  Court under  appeal to the extent indicated above, decree the  suit of  the first  purchasers  (plaintiffs)  as prayed for  and allow  this appeal accordingly. The costs of the appellants  in  this  appeal  should  be  borne  by  the Respondents No.s 6, 7,9, 10 and 11.