Bauri bandhu Naik and Others vs Radhamoni Mohanty

N. K. Das, J.—Defendants are the Appellants against the decision of the Additional District Judge, Puri modifying the decision of the Subordinate Judge, Bhubaneswar in a suit for partition.

Plaintiff''s case is that one Ananda Nayak had two sons-Udayanath and Jadumani. Plaintiff is the widow of Jadumani and Defendants are sons of Udayanath. Ananda died about 7 years back and Udayanath died about 6 years back. After death of Udayanath, Defendant No. 1 became the karta of the joint family. The entire suit properties are joint family properties. Plaintiff sold her half share in some of the suit properties to the Defendants for Rs. 500/- with a stipulation that Rs. 200/- would be paid before the Sub-Registrar and the balance would be paid at the time of handing over the registration ticket and thereafter title would pass to the Defendants. The Defendants paid only Rs. 200/- before the Sub-Registrar at the time of registration but failed to pay the balance consideration money and as such the Petitioner got return of the sale deed from the Sub-Registrar and subsequently executed a deed of cancellation. Plaintiff admits partition of half share in all the suit properties.

Defendants in their written statement contend that the holding Nos. 60 and 185 were the self acquired properties of Ananda who sold the same to Defendants by a registered sale deed dated 3-7-1953 and since then Defendants are in possession of the same. The holding Nos. 112, 144 and 202 do not belong to the joint family. As regards the sale deed by the Petitioner, they contend that the sale would be complete by payment of Rs. 200/- and the balance consideration was to be paid subsequently. But the Petitioner did not receive the money inspite of the notice of the Defendants. As regards moveables, their contention is that they are in exclusive possession of such moveables.

The trial Court found that holding Nos. 60 and 185 were the self acquired properties of Ananda and Defendant No. 1 had purchased the same and has been in exclusive possession thereof. He, however, found that the impugned sale of some holdings of the suit properties was not complete and title did not pass under registration In as much as completion of the sale was dependent on passing of full consideration.

Defendants carried the matter in appeal and the first appellate Court has upheld the finding of the trial Court relating to the impugned sale deed by the Petitioner in favour of Defendants to the effect that title has not passed by the registration, the properties appertaining to khata Nos. 112, 144 & 202 do not belong to the family, the properties appertaining to holding Nos. 60 and 185 were the self acquired properties of Ananda which have been sold to Defendant No. 1 and the latter has been in exclusive possession of the same. Regarding the contention of Defendants that some properties do not belong to the family has been upheld by the first appellate Court and the trial Court decree has been modified to that extent.

As regards the moveables both the Courts have found that there is no evidence and as such claim for partition has been disallowed.

In this second appeal only one point is urged. that by sale deed Ex. A dated 7-3-1964 executed by the Petitioner in favour of Defendants title has passed by registration and as such the decision of the Court below should be set aside. The Petitioner has filed cross appeal relating to the properties which have been held not to be belonging to the family.

The sole question in this appeal is, whether title has passed by registration under Ex. A or passing of title is dependant on passing of full consideration. Normally, title passes under law on execution and registration of a sale deed. According to Section 54 of the Transfer of Property Act sale has been defined as "transfer of ownership in exchange for a price paid or promised or part-paid and part-promised." As regards passing title, intention of the parties is to be gathered from the recitals in the document. If the recital is unambiguous, then it would be the sole criterion to decide the matter. If the terms are indecisive and ambiguous, then only the Courts will take into consideration other extraneous circumstances. See Hara Bewa and Ors. v. Banchhanidhi Barik and Ors. ILR 1957 Cutt 380, Chandrasekhar Praharaj and Others Vs. Pitambari Dibya, . In view of the aforesaid principle recitals in the document (Ex. A) are to be considered in this case in order to find out what was the intention of the parties relating to passing of title. The recitals were placed before me in extensor by the parties. After going through the recitals, I am confirmed in my view that the property was sold for Rs. 500/- and title passed on the date of registration and only the balance consideration of Rs. 300/- was kept to be paid at the time of endorsement of registration ticket. If the intention of the parties are clear as found from the recitals, that passing of title is in present and not kept in abeyance till full payment of the consideration, title will pass by registration of the document. In the present case the recitals show that the vendor has agreed that title would pass on the date of registration and the vendee will be the owner and possessor of the property from that date. The balance consideration would be paid at the time of endorsement of the registration ticket. As the recital is unambiguous and clear, it is, therefore, decisive as to passing of title. This also appears to be true from the evidence of p.w. 2 who says that the Petitioner left the place after registration and never possessed the property afterwards. The Petitioner (p.w. 1) has not all stated anywhere in her deposition that it had been agreed that title would not pass until the balance amount of Rs. 300/- is paid. This view finds support from the decisions of this Court reported in, Nrusinghanath Deb and Ors. v. Banamali Panda and Ors. ILR 1970 Ori 218, Gurubari Lenka and Anr. v. Dulani Thakumni and Ors. 36 (1970) C.L.T. 1274, Baidyanath Misra v. Udayanath Misra 1974 (2) C.W.R. 978. In view of the aforesaid finding I hold that title had passed to the Defendants on the date of registration of Ex. A and the findings of the first appellate Court are set aside.

The cross appeal is in respect of properties relating to holding Nos. 112, 144 and 202. It has been specifically asserted in the written statement that these properties do not belong to the family. The Petitioner in her statement in Court has openly expressed her ignorance about these properties. Plaintiff claims share in these properties and she has to establish first that these properties belong to the family. There is absolutely no evidence, oral or documentary, from the side of the Petitioner about these properties. Accordingly, I hold that the Petitioner''s claim for these properties is to be rejected. The cross-appeal is, accordingly dismissed.

In the result, the findings of the appellate Court relating to Ex. A are set aside, the appeal is allowed and cross appeal is dismissed. In view of the circumstances of the case each party has to bear its own costs throughout.