Abdullah Khalifa vs Bichuk Gosain and Others

Agarwala, J.—In 1901 defendant 1 execute a usufructuary mortgage of his house in favour of Gobind Ram, grandfather of defendant 3, for Rs. 300 and, on 15th May 1927, he executed in favour of the plaintiff a sale deed in respect of the house for a consideration of Rs. 900. It is stated that Rs. 300 of the consideration money was left with the plaintiff for redemption of the mortgage, that Rs. 175 was set off against debts due from defendant 1 to the plaintiff, and that the balance of Rs. 125 was paid to defendant 1 in cash. The sale deed was registered on the following day, i e. 16th May 1927, but as the vendor failed to deliver the registered deed to the plaintiff, the latter served him with a notice on 20th May calling for the deed. Three days later notice was also sent to defendant, informing him of the sale and offering to redeem the mortgage.

In reply defendant 3 stated that he had transferred his interest to one Chiranji Lal. The plaintiff sought recovery of the sale deed executed in his favour and of the house, or, in the alternative, for refund of Rs. 300, that is to say, Rs. 175 on account of the previous debts, and Rs. 125 on account of the cash said to have been paid at the date of the sale. The defence was that, as the plaintiff had failed to pay the consideration money at the time of the registration as agreed upon, the sale fell through, and, therefore, that defendant 1 then sold the house to defendant 2 by a deed which was registered on 27th May 1927, eleven days after the registration of the plaintiff''s deed.

It is alleged by the defence that this deed had actually been executed on 20th April, that is to say, prior to the plaintiff''s deed, for a consideration of Rs. 550, Rs. 150 of which was paid to the vendor in cash, while the remainder was paid in August to Chiranji Lal. The first Court found in favour of the plaintiff and decreed the suit. Defendant 2 appealed. The appellate Court dismissed the suit, holding that the plaintiff had not paid the consideration money, as alleged, and that defendant 2''s purchase had retrospective effect from the date of its execution, that is to say, 20th April. The plaintiff has preferred this second appeal.

The substantial question which has been argued on behalf of the appellant is that by reason of Section 50, Registration Act, the plaintiff''s deed prevails over the defendants. That section provides, with respect to the kinds of document therein mentioned, that they shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property. It is quite obvious that the section has no application to the facts of the present case where the defendant''s document is a registered one. It is contended however that on 27th May, when the deed in favour, of the defendant was registered, the vendor had no interest in the property because the plaintiff''s deed, having been registered, title had passed to the plaintiff. Whether that is so however depends on the intention of the parties.

If it was intended that title should not pass until payment of the consideration money, registration alone was insufficient to pass the title. It has been found that the consideration money was not paid and it is not disputed that the vendor did not deliver to the plaintiff the deed of sale In these circumstances the conclusion is irresistible that it was not intended that title should pass at the date of the registration. Learned Counsel referred to the clause in the deed which stated that title should pass from the date of execution of the sale-deed. That clause however must be read in conjunction with the recitals in the deed, in which it was stated that the consideration money had been paid.

It has now been found as a fact that the consideration money had not been paid. The clause relied upon therefore does not, in view of the retention of the deed by the vendor, lead to the conclusion that title was to pass irrespective of the payment of consideration. The Court of appeal below has held that the defendant''s deed operated to transfer to him title to the property from the date on which it was executed, namely 20th April 1927, by reason of Section 47, Registration Act, which provides:

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

It has been found that consideration for this sale deed passed and it is not contended that the deed was not made over to the defendant. In these circumstances it is not possible to hold that it was not the intention of the parties that title should pass to the defendant. The next point urged by learned Counsel for the appellant is that the finding of the first Court, that the sale in favour of defendant 1 was a farzi transaction, has not been reversed by the appellate Court. The appellate Court however has found that the defendant was in possession under his deed by receipt of rent from the person in occupation of the house. There is therefore no substance in this point.

Lastly it is contended that the Court of appeal below has not dealt with the finding of the first Court that the defendant''s sale-deed was ante-dated. It is clear however from the judgment of the appellate Court that that Court has accepted the defence case that the defendant''s sale-deed was executed on the day on which the stamped-paper on which it was engrossed was purchased, that is to say on 20th April. There is no merit therefore in this second appeal which is dismissed with costs to the contesting respondents.