Raju Mahton and Others vs Hossaini Mian and Another

This appeal arises out of a suit for recovery of possession on the basis of a sale-deed said to have been executed by the defendants in favour of the plaintiff''s father in March 1906.

The defendants impugn the document as having been executed on account of fraud practised upon them by the plaintiff''s father representing that the deed to be executed would be only an usufructuary mortgage, and not a deed of sale. They further state that on discovery of the fraud the withheld the document and did not deliver it to the plaintiff''s father nor gave possession of the properties in question. They also denied the passing of the consideration.

Both the Courts below have dismissed the suit. On appeal, the only question raised before the Court below was as to whether the plaintiffs have any right, title or interest in the suit lands and are they entitled to get possession thereof (Issue No. 4). The lower Appellate Court held that the transaction between the parties was proved to be a sale and that the deed in question was intended to be operative; but that the transaction was incomplete inasmuch as the consideration did not pass. The lower Appellate Court agreed with the finding of the Munsif that the recital as to the discharge of the consideration money by payment of the prior debts due from the defendants; was false and that the prior debts were as a matter of fact not discharged. The prior mortgage bonds were neither torn off nor any endorsement made thereon to show that they were paid off or discharged. The finding of the Courts below is based upon good evidence and being a finding of fact cannot be challenged in second appeal. The result is that the consideration-money in the sale-deed did not at all pass. The sale-deed in question remained throughout in the possession of the defendants and was not given to the plaintiffs. The possession of the vended property was not also parted. To put it shortly, there was no delivery of the sale-deed and the property in question, nor the passing of the consideration. There was, therefore, nothing to show that there was any transfer of ownership which is essential for a valid sale u/s 54 of the Transfer of Property Act. There is no particular mode prescribed for effecting the transfer of ownership, but the ordinary modes are those indicated above, namely, the delivery of title-deed and of the property and the passing of the consideration. It has not been proved that there was any intention of the parties in the present case to do away with the aforesaid requirements. It appears to me that the mere registration of the document in this case did not pass the title to the plaintiffs. Although more than 10 years after the execution of the sale-deed have elapsed no attempt was made until the institution of the present suit by the plaintiffs to recover possession of the property or to enforce their right under the deed. The finding of the Court that they were never in possession shows clearly that they never thought that they had acquired any title under the sale-deed in question. It is impossible to conceive that a vendee would sleep over his right after paying the consideration-money, for many years.

I do not propose to discuss the various authorities on the point, for the principle appears to be simple and well-established. Each case has to be determined according to the circumstances of that case, showing the intention of the parties. This principle was laid down in the leading case of London Freehold and Leasehold Property Company v. Baron Suffield (1897) 8 Ch. 608 : 66 L.J. Ch. 790 : 77 L.T. 445 : 46 W.R. 102 and has been reiterated in a string of cases, vide Sarat Chandra Naskar v. Bari Pada Mistri 4 C.L.J. 338.

I, therefore, agree with the view taken by the Court below and dismiss the appeal with costs.