Kulsum Bibi vs Ananta Prasad Rana

S. Acharya, J.—The Defendant has preferred this appeal against the decision of the Subordinate Judge, Balasore, in Money Appeal No. 17/71 of 1970/71-I, reversing the decision of the Munsif, Balasore, in Original Suit No. 148 of 1968-1.

The Petitioner�s case in short is that the Defendant executed a registered sale deed (certified copy of which is Ext. 4 and hereinafter referred to as Ext. 4) in favour of the Petitioner on 19-7-1968 in respect of the suit property. Subsequently the Defendant cancelled the aforesaid sale deed on 19-8-1968 as per Ext. A. According to the Petitioner, the right, title and interest over the suit property vested in him by virtue of the registered sale deed Ext. 4 dated 19-7-1968, and as he became a full owner of the said property from the date of the execution of the deed, the deed of cancellation Ext. A executed subsequently by the Defendant would be of no effect and would not divest the Petitioner of his right, title and interest in the suit property. On the above facts the Petitioner prays for the declaration of his title to the suit land, and for confirmation or in the alternative for recovery of possession of the same.

The defence case in short is that title did not pass to the Petitioner on the execution of the aforesaid sale deed on 19-8-1968 as the consideration for the said sale was not paid by the Petitioner to the Defendant as agreed upon, and as such the Petitioner has not acquired any right, title and interest in the suit property. It is asserted that as consideration for the said sale was not paid, the Defendant was within her rights and was justified in cancelling the sale deed by the subsequent registered deed (Ext. A) dated 19.8-1968.

The trial Court inter alia found that the Petitioner did not pay the consideration money for the above sale; that the receipt Ext. 2 showing payment of consideration was not genuine, and that title to the suit property did not pass to the Petitioner on the execution and registration of the sale deed Ext. 4.

The appellate Court also found that no consideration was paid to the Defendant for the said sale. It, however, held that though the consideration for the sale had not been paid, still title passed on execution and registration of the sale deed. On the above finding the appellate Court decreed the Petitioner�s suit and ordered delivery of possession of the suit property in favour of the Petitioner.

As stated above, both the Courts have held that no consideration was paid by the vendee to the Defendant under the sale deed Ext. 4. This concurrent finding of fact cannot be and has not been successfully assailed by the Petitioner. On a perusal of the discussion of the evidence on record on this aspect of the matter in the judgments of the Courts below I am convinced that the above finding has been arrived at on a cogent and convincing consideration of the relevant evidence on record and I do not see any reason to interfere with the said finding. So the moot question which arises for consideration on the arguments advanced by the counsel for both the parties is whether title passed to the vendee on the execution of the sale deed irrespective of the nonpayment of the consideration money. To decide such a matter the primary criterion is the recitals in the sale deed. It is well settled that the intention of the parties to the effect is to be gathered primarily from the recitals in the document; and if the document, is unambiguous and the intention of the parties to that effect is clearly expressed therein, then the recitals should be taken as the sole criterion for a decision on that matter, but where the recitals are inconclusive, indecisive or ambiguous then the conduct of the parties and the surrounding and other relevant circumstances may be legitimately looked into. On a careful perusal of the sate deed I find that the recitals do not give a clear indication of the intention of the parties to the question under consideration. The sentence regarding the vesting of title and the payment of consideration when transliterated in Roman script is as follows:

Ukta Sampatti Ballia Anurbar O Dhulibhag Satwa O Bahu Durabarti Thibaru Nikatastha Paribhukta Jami Kbarid Kariba Karana O Keteka Khuchura Runa Parisodha Kariba Karana Tankara Abasyaka Hebaru Ukta Sampatlku Bikri Kari Mulya Tlkata Barada Deba Samayare Bujhi Nebu Ukta Satware Tumbhanku Ambha Tulya Malika Dakhalkar Karai Dei Ambhe Nije Warisanukrame Chirakala Pain Nisatwaban Helu.

Undoubtedly the, said most important sentence in the deed is rather involved and of intricate and complicated nature. It, is not clearly stated therein that the property was sold by the execution and registration of the deed. The last part of the sentence would of course appear to mean that the vendor was divested of her right in the property. The clause regarding payment of considerations appearing in the middle of that sentence is to the effect that the consideration money would be taken at the time of endorsing the registration ticket. But as the aid most important sentence in the deed is so involved, intricate and couched in rather ambiguous language and terms, I am doubtful if the vendor, a lay Mohammedan female, executed the said deed by properly and fully understanding the implications of the said complex and intricate recitals in the said sentence. Because of the above I am of the view that the recitals in the deed would not reflect the true intention of the parties specially that of the vendor, to the above effect. Moreover, from the said complex and intricate sentence it is extremely difficult to definitely ascertain the intention of the parties to the above effect. That being so, along with the recitals in the deed one has to take into consideration the relevant surrounding circumstances and the conduct of the parties appearing in the evidence on record.

The deed was executed on 9-7-1968. Both the Courts below have arrived at the finding that after the execution of the said deed the consideration as stipulated to be paid for the said deed was not paid to the vendor. There is convincing evidence on record to show that soon after the registration of the deed efforts were made by the Defendant to realise the consideration money from the Petitioner, but, though the Petitioner somehow took away the registration ticket from the Defendant, he did not pay the consideration money and evaded payment of the same on some pretext or other. As the money thus was not paid on the date Of the execution of the sale deed Roshan Khan, the husband of the Defendant, along with d.ws. 2 and 5 went to the house of the Petitioner on the next day morning and again demanded payment of the consideration money. But the Petitioner evaded payment and asked Roshan Khan, to come to the Court premises to make some corrections in the registration ticket whereafter he would pay the consideration money. Roshan Khan agreed that the necessary corrections in the registration ticket would be made, but he d.ws. 2 and 5 and others present there insisted that the consideration money must be paid before insisting upon the correction of the registration ticket. As the Petitioner did not pay the consideration money the correction as desired by the Petitioner was not made. Roshan Khan sought the intervention of Kamala Babu, a local advocate, in the matter but the Petitioner even then did not pay the money. Kamala Babu, the advocate, has been examined as d.w. 4 and he has fully corroborated the evidence of the other witnesses to the above effect.

Thus from the oral evidence on record it is evident that the Defendant and her men were keen on getting the consideration money immediately after the execution of the sale deed and they continued to make efforts in that direction from that time onwards.

Apart from the above, it is admitted by the Petitioner that the Defendant filed an application before the Sub. Registrar stating that the consideration money due on the said sale deed was not paid to her. Later the Defendant, by another registered document (Ext. A) cancelled the said sale deed on the ground that the consideration money as stipulated therein was not paid by the Petitioner.

The above-mentioned conduct of the parties and the surrounding circumstances indicate that payment of the consideration soon after the registration of the document had been agreed upon by both the parties and on such agreement the deed was executed. On those facts it is difficult to comprehend that passing of the title to the property immediately on the registration of the deed was intended Irrespective of the payment of the consideration money.

Moreover, the purpose for selling the property, as is seen from the sale deed Ext. 4. was to utilise the consideration money for certain purposes as specifically mentioned therein. That being so it cannot be said that the vendor intended to transfer title in the property without receiving the consideration for the same. As the decision to sell the property was with the said definite purpose, receipt of the consideration money was the only reason which actuated the Defendant to sell that property. If that was so, the vendor certainly did not agree or intend to transfer the title in the property immediately on the registration of the deed with the hope of receiving payment of the consideration money at a later time. There is nothing in the evidence on record to show any compelling reason or circumstance which impelled the vender to transfer title in the property on the registration of the deed on the mere promise of deferred payment. Rather the purposes for which the property was decided to be sold militate against such a theory. Moreover, the stipulation in the deed, that the consideration money would be paid at the time of the endorsement of the registration ticket, ion the context in which it appears in the said sentence suggests that the title in the property would pass only on the payment of the consideration at that time. Apart from all these, the stand taken by the Petitioner that he paid the consideration money at the proper time, and his vain attempt to show payment of the same by the filing of the faked receipt Ext. 2 also suggest that the Petitioner himself knew and was conscious of the position that he must pay the consideration money in order to derive title to the suit property.

Apart from the above, there is no evidence to show that the Petitioner actually received possession of the suit property in pursuance of the sale deed executed on 19-7-1968. His failure to adduce evidence to this effect and his prayer for delivery of possession show that he did not get delivery of possession after the execution of the sale deed. This is also a factor which militates against the theory of vesting of title on the Petitioner on and from the date of execution and registration of the sale deed in spite of non-payment of the consideration.

Moreover, a sale, transferring one�s right, title and interest in one�s property, is seldom effected without the intention of receiving the consideration money for the same before or at the time of or very soon after the execution of the sale deed. Vesting of title irrespective of payment of consideration is not a usual feature and is generally not agreed to by the vendor; and inference to that effect should not be deduced unless something very positive or strong is shown in favour of such a proposition.

On the above considerations I am satisfied that the parries and ,specially the vendor never intended that the title in the suit property would pass to the vendee merely on the execution and registration of the sale deed on 19-7-1968 without payment of the consideration money. Accordingly the Petitioner did not acquire title to the suit property on the strength of the sale deed Ext. 4, and the Defendant was perfectly with in her rights to cancel the said sale deed by the subsequent registered deed Ext. A dated 19-8-1968. The Petitioner accordingly is not entitled to the declaration of title and the other reliefs prayed for by him, and his suit, therefore, is liable to be dismissed in its entirety.

In view of the above findings and conclusions the cross-appeal preferred by the Petitioner would necessarily fail, and is hereby dismissed, but in the circumstances without costs.

On the above discussions and consolidations the second appeal preferred by the Defendant is allowed with costs.