Abdul Hasan vs Mt. Wajih-un-nissa and Others

Bennett, J.—This is an appeal from a decision of the First Additional District Judge of Gaya, affirming the decision of the Second Subordinate Judge at Gaya in a suit in which the plaintiff, the appellant here, claimed a declaration for the return of a sale deed, and in the alternative, if his own plea of possession be not successful, recovery of possession of the property which consisted of 8.12 acres of land.

The facts leading to the suit are shortly that on 17-7-1932, the plaintiff mortgaged the land in dispute to defendant 1 for a sum of Rs. 600. Thereafter, the landlord obtained a rent decree against the plaintiff and in order to avoid the sale of the property defendant 1 deposited in Court the decretal amount. In money Suit No. 39 of 1935, defendant 1 sued the plaintiff for recovery of the amount so deposited and obtained a decree therefore. At a sale held in execution of that decree on 26-2-1937, defendant 1 purchased the property for Rs. 200 and on 26-8-1937, he got delivery of possession.

The plaintiff''s case was that the sale processes had been suppressed and that when in December 1937, he learnt of the fraud, defendant 2, who is the husband of defendant 1 in order to avoid proceedings by the plaintiff for the setting aside of the sale, offered to re-convey the property to the plaintiff if ho would pay the amount then outstanding on the mortgage bend of 17-7-1932, plus the sum of Rs. 200 for which the property was sold to his wife, defendant 1. This the plaintiff agreed to and having collected alt the necessary n monies except Rs. 200 it was thereafter agreed that the plaintiff should pay the defendants these monies and should execute a rehan bend in respect of part of the property in question for the sum of Rs. 200. On 16-1-1938, the plaintiff paid Rs. 200, being the price of the land and Rs. 1050 towards the mortgage dues and a sale deed was executed by defendant 1 in favour of the plaintiff and the plaintiff executed a rehan bend in favour of defendant 1, defendant 2 promising to return to the plaintiff the documents relating to the old mortgage of 17-7-1932. On the same day, the sale and the rehan bend were presented for registration before the Sub-Registrar, Gaya, and defendant 1 admitted the execution of the sale-Seed before the Registrar and it was duly registered. The rehan bend, however, war not registered by the plaintiff because, as he alleged, the defendants, after executing and registering the sale-deed, refused to make over to the defendants the said documents relating to the old mortgage and in spite of repeated demands, put off the return of these documents. Therefore, on 31-1-1988, the rehan bend was returned to the plaintiff by the Sub-Registrar. The plaintiff alleged that he thereafter sent a registered notice to the defendants to get the rehan loud registered and to make over the document and the sale-deed but the defendants refused.

The defendants'' case, except of course chat they denied that there was any suppression of the sale processes in the execution case, is very largely the same as that of the plaintiff. They, however, denied that on 16-1-1938, the plaintiff paid them a single pice and they alleged that the substance of the transaction between the parties was an arrangement that the sale-deed and rehan bend of the property should be executed and registered simultaneously and that immediately thereafter the parties would exchange equivalents, the defendants exchanging the registered sale-deed and the documents relating to the old mortgage against the rehan bend and the cash. They alleged that on 16-1-1938, the amount due under the old mortgage of 17-7-1932, was Rs. 2124 but that no single pice of that amount had been paid to them. They further pleaded that they had been cheated and deceived by the plaintiff in that in relisnce upon his promise to register the rehan bend simultaneously with the sale-deed and thereafter to exchange equivalents as above mentioned, they executed and registered the sale-deed but that immedistely thereafter the plaintiff disappeared from the Registration Office and later on took back the rehan bend. They denied that he had ever asked to obtain registration of the rehan bend or that they had refused to return the documents in connection with the mortgage in pursuance of the agreement.

both the Courts below have found that the plaintiff paid nothing to the defendants in relation to the transaction in question and both Courts also found that the outstanding amount on the old mortgage of 17-7-1932 was Rs. 2124 as alleged by the defendants and not Rs. 1050 as alleged by the plaintiff.

In addition to issues on the above points, a general issue, issue 3 was framed, namely, "Did any title pass on execution of the sale-deed by defendant 1 and is the plaintiff entitled to any relief therefrom?" both the learned Subordinate Judge and the learned Additional District Judge, in relisnce upon the recitals in the deed of sale, found on this issue that there was no doubt that the intention of the parties was that title would only pass when the mortgage debt had been cleared up, that is to say, when the consideration of monies had been paid and they, therefore, dismissed the plaintiff''s suit.

Mr. B.C. De, who appeared for the appellant, urged quite rightly that the recitals in a deed of sale could not be allowed to contradict the operative clauses if the latter were clear and unambiguous. The operative clauses of the deed of sale are as follows:

Therefore, I, the executant of my accord and free will, in sound state of body and mind, and in full enjoyment of my senses, without instigation, inducement, intimidation and undue influence on the part of anybody else, sold and absolutely vended the whole and entire the above mentioned land for the said consideration to the said claimant and having received the full payment of the consideration thereof in cash from the hand of the said vendee, brought the same to my possession and appropriation, and put the said vendee in possession and occupation of the vended property as an absolute proprietor in my place for all times to come. It is requisite for the said vendee to enter into possession and occupation of the said vended properties, to cultivate the same or get the same cultivated by others and to appropriste the produce thereof or deal with it any way he may deem proper. I, the executant and my heirs and representatives have and shall have no objection or contention thereto.

That I, the executant, shall raise no objection on the ground of non-realization of the consideration money or invalidity of the absolute deed of sale or the consideration money being insufficient. In at any time I being forward any such objection, it is and shall be illegal and insufficient in the competent Court.

From this day the declarant or my heirs and representatives neither have nor shall have any connection and concern with the aforesaid lands.

Title Suit No. 66 of 1937, Mt. Bibi Razis plaintiff v. Malik Abdul Hasan claimant and I the declarant and others, defendants, has been instituted in respect of a portion of the aforesaid vended lands in the Second Court of the Munsif at Gaya which is still pending disposal. I, the declarant and my heirs and representatives neither are nor shall be in any way and on any allegation hound by the results of that suit. The claimant and the other defendants to the said suit are and shall be fully beund by the said suit. The entire paddy crop grown in 1345 Fasli on the lands in suit was taken by the claimant. If future mesne profits will be awarded by the Court to the plaintiff to the aforesaid suit the claimant will be liable to pay the entire mesne profits. I, the declarant, will not be bound to pay the same. From this day I, the declarant shall cease to contest the said suit. The entire pairvi of the said suit is and shall be the concern of the claimant of this deed.

It is perfectly clear on the face of these provisions that the vendor purported by execution of the deed of sale to pass the title in the property immediately to the vendee.

Mr. S.N. Bose for the respondents, however, raised three points, firstly, he urged that there had never been any full and proper execution of the deed of sale, secondly and in the alternative, he urged that looking at the recitals and the last clause of the deed of sale, to which I shall refer in more detail hereafter, taken together with the surrounding circumstances and the concurrent findings of fact made by the lower Courts, the respondents had established an oral agreement that no obligation should arise under the deed of sale until the exchange of equivalents as above-mentioned had taken place and, thirdly and in the further alternative, he urged that the recitals in the deed, the surrounding circumstances and findings of the lower Courts showed beyond any doubt that the defendants had been induced to execute and register the deed of sale in relisnce upon a fraudulent representation made by the plaintiff that he would simultaneously or immedistely thereafter execute the rehan bend and would thereafter exchange the rehan bend and the cash consideration for the deed of sale and documents relating to the old mortgage of 17-7-1932.

We have ho doubt that the term ''execution'' in relation to a written document means the placing by the executant of his signature or other identification mark such as a thumb-print thereon in or accompanied then or later by circumstances which sufficiently demonstrate the intention of the executant to give effect and operation to the instrument signed by him. We take this to be the general law of England and India. The law of India does not, as does the law of England, require that a transfer of immovable properly should be effected by a deed and the old technical necessity for delivery in the sense that the signatory must place his hand upon his seal and state that he delivers the document as his act and deed, is unnecessary in India, but that does not mean that a mere signature necessarily and automatically renders effective and operative the document to which it is appended. It is well-settled that the signature of a document under a complete misapprehension as to the nature of the transaction therein set out, that is to say, under a mistake, does not render the document effective or operative. Proviso 3 to Section 92, Evidence Act, shows clearly that where there is an antecedent oral agreement between the parties to a written agreement that some or any obligation thereunder shall not arise until the fulfilment of some condition precedent, the document, although signed, will not (in so far as the obligation or obligations in question are concerned) become operative until the fulfilment of the condition precedent. It is, therefore, clear that in order that a signature should render a document operative, it must be accompanied by an intention so to do. This is so, whether the document contains a bilateral or a unilateral transaction. In Sunder Chaudhry v. Lalji Chaudhri : AIR 1933 Pat. 129 Courtney Terrell C.J. stated:

Execution of a deed does not mean merely signing, but it means all acts necessary to make the parties bound thereby. If a man merely signs the contract and puts it in his pocket and does not allow it to depart from him as his act that is not execution.

In this case, however, we are of opinion that the deed of sale was duly executed. In para. 19 of the written statement, the defendant stated inter alis: "The plaintiff could not have executed the ijara deed until he had acquired title under the sale deed." This statement implied prima facie that the defendants when they signed and registered the sale-deed did so inter alis in order that the ijara to be signed by the plaintiff should be valid and operative and that gives rise to the inference that by signature and registration the defendants intended to make the deed of sale effective and operative. In the face of this acknowledgment, we do not think that it now lies in the mouth of the defendant to say that when-after signature he registered the deed of sale, he did not intend to make it operative.

I turn therefore to Mr. S.N. Bese''s second, contention that the recitals and the last clause in the deed of sale taken together with the surrounding circumstances and the concurrent findings of fact made by the lower Courts established that there was an antecedent oral agreement between the parties that no obligation should arise under the deed of sale until the exchange of equivalents constituted a condition precedent to the passing of title to the plaintiff under the deed of sale. The recitals and the operative parts of the deed of sale are not separated one from the other, but the relevant portions of what constitutes the recitals are contained in para. 7 thereof which reads as follows:

That the claimant, after arranging the amount, came to me, the executant along with his wife and requested me to sell the lands purchased by auction to the claimant for the said consideration, as also to accept the payment of the amount in cash covered by the said bend which was still unpaid and which he had got with him, and to take in rehan with possession this day, 3 bighas 17 kathas and 11 dhurs of nakdi, kasht land for the balance of the amount which could not at present be paid by the claimant and to get a rehan bend with possession executed and admitted in my favour, and to return the said bend. Accordingly I, the executant, having agreed to the prayer of the claimant, deemed it proper to enter into the above mentioned transaction.

The transaction which is the subject of this para-graph is clearly not mere execution of the deed of sale but the agreement to accept, in exchange for the deed of sale and the return of the old mortgage bend, cash for part of the outstanding dues on the old mortgage bend and for the price of the land together with a rehan bend for the balance of the dues outstanding on the old mortgage bend. The last paragraph of the deed of sale reads as follows:

Be it noted that I the declarant had got several original and certified copies of documents at the time of execution of the aforesaid bend (the mortgage bend of 17-7-1932) as also I had obtained certified copies of several documents for the protection of my title after the execution of the said bend the details whereof are given below. I shall make over the same to the claimant at the time of exchange of equivalents.

This paragraph clearly indicates that an exchange of equivalents wag contemplated by the parties and that something besides these documents, namely, the deed of sale, was intended to be given in exchange by the defendants. It is important to note that the plaintiff, although he was not a party to the deed of sale, cannot deny the recitals therein, because it is upon this document that he founds his cause of action in the suit and he cannot, therefore, approbate and reprobate that document, The circumstances surrounding the agreement leading to the execution of the deed of sale by the defendants were the admitted facts that the plaintiff had allowed the property to be attached in execution of a rent decree obtained against him by the landlord and had compelled the defendants qua mortgagees to come in and pay off the decree and later to bring a suit against them for the amount. It is, therefore, in the highest degree improbable that the defendants would over have been willing to part with the property in return only for a right to sue the plaintiff for the purchase price. Even more important is the fact that upon the purchase of the property by the defendants, the old mortgage merged in the ownership acquired by them, unless they exhibited a clear intention to the contrary. There was no suggestion of any such intention. Unless, therefore, the defendants were ensured of the receipt of the cash before parting with the title to the property, they would thereafter for ever have been barred from realising any part of the dues upon their old mortgage bend. No man in his senses would, therefore, have executed and registered this deed of sale, which recited that the consideration of only Rs. 200 had been received by the vendor and debarred the vendor thereafter from alleging the contrary, without ensuring that the title to the land would not pass until the mortgage dues on the old mortgage bend, which would otherwise be wiped out, were first or simultaneously fully paid. both the lower Courts found that the agreement alleged by the defendants leading to the execution of the deed of sale was true, that the plaintiff''s contention that he had paid Rs. 1250 was untrue and that he had not paid a single pice of the consideration monies. They also found that the parties went together to the Registration Office intending to get both the deed of sale and the rehan bend executed. The operative clauses of the document themselves contemplate that the consideration should be paid before the execution thereof. Looking at these findings and the surrounding circumstances in the. light of the recitals contained in the deed of1 sale itself and the express mention of an exchange of equivalents in the last paragraph, I am of opinion that the defendants have established a proper oral agreement under which the exchange of equivalents was a condition precedent to the passing of the title to the plaintiff under the deed of sale.

Even if that were not so, I should still be of opinion that the defendants were entitled to succeed on the ground of fraud. The recitals, the surrounding circumstances and the findings of the lower Court, to which I have already adverted, give rise, in my opinion, to a necessary inference that the defendants, in executing the registered deed of sale, acted solely upon the plaintiff''s representation that he would immedistely thereafter register the rehan bend and effect the exchange of equivalents. The plaintiff''s explanation as to why he did not register the rehan bend has been disbelieved by both the lower Courts and was indeed clearly unbelievable, involving as it did the contention that it was for the defendants to get the rehan bend registered. Once his explanation is disbelieved the only inference is that the plaintiff disappeared from the Registration Office after the registration of the deed of sale by the defendants, with the fraudulent intention of obtaining the property without payment of the agreed consideration therefor. In these circumstances, the clear inference is that at the time he made the representations relied upon by the defendants, he did so fraudulently with intent, as they have alleged, to deceive and cheat them. That being so, the deed of sale is voidable and the defence upon this ground must succeed. I would, therefore, dismiss this appeal with costs.

Reuben, J.

I agree.