Pabni Mahtani vs Haralal Mahto and Others

Lalit Mohan Sharma, J.—The appellant filed Title Suit No. 220 of 1963 for declaration of her title and recovery of possession with respect to 1.78 acre of land fully described in the plaint which was decreed by the trial court. The defendants filed an appeal which was heard by the Additional Subordinate Judge, Dhanbad, and was allowed and the suit dismissed by the impugned decision. The plaintiff has now come to this Court in second appeal.

The disputed property belonged to Bagi Mahto impleaded as defendant No. 1 in the suit who executed a registered sale deed dated 30-12-1955 in favour of the plaintiff for a consideration of Rs. 600/-. The plaintiff claims to have come in peaceful possession of the land. She complains that her possession was illegally disturbed by defendants 2 to 4 on the basis of an usufructuary mortgage executed subsequently. The defendants pleaded that the plaintiff did not acquire any title under the sale deed, Ext. A (3), executed by defendant No. 1 because the transfer of title was dependant on passing of the consideration and on the plaintiff''s failure to pay the same the sale deed was cancelled. It was stated that the plaintiff never came in possession of the land at any point of time and the sale deed referred to above was not acted upon. The plaintiff''s case of payment of sale price subsequent to the registration of the document was denied,

The trial court agreed with the plaintiff, but the lower appellate court after considering the entire evidence on the record accepted the defence case and dismissed the suit.

This appeal was initially placed for hearing before a learned single Judge who referred it to a Division Bench for consideration of the question as to whether the title under the sale deed Ext. A (3) passed on its registration independent of the question of payment of the consideration money.

Mr. H. K. Banerjee, the learned Counsel for the plaintiff-appellant, contended that in view of the provisions of the sale deed, it must be held that title to the suit land passed thereunder immediately on registration. He relied on the recital stating that the document was being executed for divesting of the vendor''s right in the property and for vesting the same in the transferee. He also referred to the statement with respect to possession.

6 The question whether effective transfer of the title to a property under a sale deed is dependent on payment of consideration money or not has been the subject-matter of numerous decisions of this Court during the last several decades. It has been held by several Bench decisions that the issue is dependant on the intention of the parties and that a statement in the sale deed about the passing of consideration can be contradicted and proved wrong by the vendor by leading evidence before the court (See Motilal Sahu Vs. Ugrah Narain Sahu and Others, Panchoo Sahu Vs. Janki Mandar and Others, and Baldeo Singh and Others Vs. Dwarika Singh and Others, . In several cases, it has further been held that if the execution of a sale deed states that on receiving the entire consideration money, he was conveying the title to the property to the vendee, it is presumed that the parties intended the transfer of title to take place on passing of the consideration. The recitals in the sale deed Ext. A(3) when examined in this light, lend to a similar con-elusion. The language of the sale deed in Baldeo Singh v. Dwarika Singh (supra) quoted in the judgment were similar to those in the present case and it was held that from the aforesaid recital, it is obvious that the parties to the sale deed had agreed that title to the land in question should pass to the vendee only after payment of the full consideration money." The lower appellate court has on a corsideration of the evidence on the record held that the plea of payment by 1 he plaintiff is not correct and the price was never paid. It, therefore, follows that the sale deed Ext. A (3) did not convey any title to the plaintiff. Consequently, she is bound to lose. I, therefore, hold, that the decision of the court below is correct. The appeal is accordingly dismissed but in the circumstances, without costs.