Ramcharan Sahu and Another vs Kali Prasad Sahu and Others

Kulwant Sahay, J.—This is an appeal by the defendants against the decree of the Subordinate Judge of Monghyr affirming the decree of the Munsif and decreeing the plaintiffs'' suit for possession of 7 kathas 4 1/2 dhurs of land with the buildings thereon. The suit was decreed by the Munsif but on appeal it was dismissed by the Subordinate Judge of Monghyr. The plaintiff filed a second appeal to this Court, which was Appeal No. 183 of 1922. See 86 Ind. Cas. 629. That appeal was allowed by a Division Bench of this Court, the decree of the Subordinate Judge was set aside and the case was remanded for rehearing. After remand the Subordinate Judge has affirmed the decree of the Munsif and has given a decree to the plaintiffs substantially as claimed. The defendants have, therefore, come up in second appeal to this Court.

The facts of the case are set out in detail in the order of remand of this Court, dated, the 16th January, 1925.

It appears that the defendants-first party executed a document called bai beyananama in favour of the plaintiffs on the 8th of September, 1919, in respect of 7 kathas 4 1/2 dhurs out of 8 kathas 4 1/2 dhurs of land agreeing to sell the same to the plaintiffs for a consideration of Rs. 1,125. On the following day two deeds of sale were executed by the defendants-first party, one in favour of the plaintiffs in respect of the 7 kathas 4 1/2 dhurs for a consideration of Rs. 1,125 and the other in respect of 8 kathas 4 1/2 dhurs which included the land sold to the plaintiffs for a consideration of Rs. 2,000 in favour of the defendants-second party. The conveyance in favour of the defendants was registered on the 10th of September, 1919, and the bai-beyananama of the plaintiffs was also registered on the same day. The Sub-Registrar, however, refused to register the conveyance in favour of the plaintiffs, and subsequently it was registered under an. order of the District Registrar. The present suit was instituted by the plaintiffs lor a declaration of their title and for recovery of possession.

The defendants-second party set up a previous agreement alleged to have been entered into by the defendants-first party in August, 1919, under which the defendants-first party are alleged to have entered into a contract to sell the 8 kathas 4 1/2 dhurs of land to the defendants-second party for a consideration of Rs. 2,000 and it was alleged that the plaintiffs had full knowledge and information regarding this agreement.

Having regard to the pleadings of the parties and to the direction contained in the order of remand of this Court the learned Subordinate judge proceeded to decide the following questions which arose for his decision :

(1) Was there an executory contract entered into in August, 1919, between the defendants-first party and the defendants-second party? Was it known to the plaintiffs ?

(2) Is the bai-beyananama, dated the 8th of September, 1919, a sale out and out or an executory contract? Had defendants-second party notice of this bai-beyananama?

(3) When were the sale-deeds, dated the 9th of September, 1919, in favour of the plaintiffs-first party and the defendant-second party executed? Are any one of them for consideration?

(4) Which of the sales should prevail?

(5) What relief, if any, are the plaintiffs entitled to?

It may be noted here that in the order of remand it was expressly indicated that "a further point also which may in one even become important is, which of the two documents of the 9th September, that Is the two kabalas executed in favour of the rival claimants, was executed first," The learned Subordinate Judge did not lay it down as one of the points arising in the case but, apparently, he included it in point No. 3 set out above.

The learned Subordinate Judge found that the defendants-second party had failed to prove that there was an executory contract entered into in August, 1919, between the defendants-first party and the defendants second party and, that, even if it was so executed, it was not known to the plaintiffs. On the second point, the learned Subordinate Judge held that the deed dated the 8th of September, 1919, was a sale-deed, and it operated as a conveyance. He next found that there was no proof that the defendants-second party knew of the execution of the bai-beyananama of the 8th of September. Lastly, he found that both the kabalas, i.e., the one in favour of the plaintiffs and the other in favour of the defendants-second party were executed on the 10th of September and not on the 9th and, that, each party knew of the kabala of the other party. Having held that the deed of the 8th of September operated as a conveyance out and out, the learned Subordinate Judge held that the title passed to the plaintiffs and that the defendants-second party did not acquire any title under their kabala in respect of the 7 kathas 4 1/2 dhurs of land sold to the plaintiffs. He, however, believed that the conveyance of the defendants-second party was for consideration and it was Valid to the extent of one katha which had not been purchased by the plaintiffs.

The points taken by the learned Counsel for the appellants are: First, that, the suit being one in ejectment and the defendants second party being in possession, the plaintiffs could not succeed unless they established their title; secondly, the fact that the plaintiffs got a bai-beyananama of which the defendants had no notice leit the defendants'' conveyance good unless it was held that the bai-beyananama was a conveyance, and it was argued that it was a mere agreement and not a conveyance and lastly, that, if the bai-beyananama be treated as a mere agreement and not a conveyance, then the plaintiffs could not succeed in the absence of a finding that the conveyance of the 9th of September, 1919, in favour of the plaintiffs was executed first.

The important question for consideration in the appeal is, whether the document of the 8th of September was a conveyance or a mere agreement to sell. The document purports to be a bai-beyananama or an agreement to sell. After describing the property forming the subject-matter of the agreement the document runs thus:

We the executants stand in need of money for liquidation of legal debts covered by the bonds executed by Musammat Ritia mother of executant No. 2 and executant No. 3 as well as those due to other petty creditors and for meeting household and other necessary expenses; and it is impossible to re-pay the said debts unless a portion of the said land is sold and it is impossible to meet the necessities. Accordingly we the executants made negotiation to sell 7 kathas 4 dhurs 10 dhurkis of land out of 8 kathas 4 dhurs 10 dhurkis of the said land, specified and bounded below, with Kali Prasad Sahu son of Etwari Sahu deceased resident of Mahalla Dilawarpur, Pargana Monghyr and Umar Ram Miatri son of Fojro Ram Mistri deceased resident of Purabsarai, Pargana Monghyr, and the said purchaser agreed to purchase the said land and to advance fair price, therefor.

Therefore we the executants, of our own free-will and accord, in sound state of our body and mind and enjoyment of proper senses, without pressure, coercion, threat and persuasion of anybody else, have entered into a contract with the said purchaser for selling the said property for a consideration of Rs. 1,125 and out of the said consideration money we have received Rs. 25 as earnest money in cash from the said purchaser. We the executants do declare that we shall execute a kabala for the said consideration money in favour of the said purchaser within a week and shall realise the balance consideration money from the said purchaser at the time of the execution of the said kabala after deduction of the amount payable to the creditors. We shall not raise any objection and plea whatever to the execution of the kabala. If we do so the same shall be null and void. The said land became the absolute title of the said purchaser under this beyananama. We the executants have ceased to have any other title in the said land than to get the remaining consideration money. If we put forward any claim whatever the same shall be null and void and shall not be entertained by the Court as against this deed. We the executants do further declare that if we fail to execute the kabala within a week, the said purchaser shall be authorised to acquire (hasil kar lewaga) the said land on payment of the balance consideration money by such means as he thinks proper. To this we or our heirs and representatives have not and shall not have any objection whatever. Therefore we have given these few words in the form of the bai beyananama in writing in favour of Babu Kali Prasad Sahu son of Etwari Sahu deceased resident of Dilawarpur, Pargana Monghyr, and Umar Ram Mistri son of Fojro Ram deceased resident of Purabsarai Thana Sub-Registry Office and District Monghyr, by occupation Mahajans, zemindars and holders of Gola, so that the same may be of use when required.

It is contended on behalf of the respondent that this document operates as a conveyance out and out and is not a mere agreement to sell.

In order to determine whether the document was a conveyance or a mere agreement to sell one has to find out the intention of the parties as expressed in the document itself. The document was stamped with an eight-annas stamp which was the proper stamp for an agreement and not for a conveyance. The deed provides that if the executants fail to execute the kabala, i.e., a regular conveyance within a week the purchaser was authorised to acquire the land on payment of the balance of the consideration money by such means as he thought proper. This goes to show that the purchaser had not acquired the land under the deed, and in order to acquire the land it was necessary to do something more. It is clear on a reference to the deed that it was not the intention of the vendors that title should pass without payment of the balance of the consideration money. It is contended that what was meant by the clause relating to the purchaser "acquiring" the land on payment of the balance of the consideration money, was acquring possession of the land. I am unable to agree with this contention. In the beginning of para. 3 of the document it is clearly stated that the executants had entered into a contract for selling the property and that they would execute a kabala within a week and shall realise the balance of the consideration money at the time of the execution of the kabala, This clearly goes to show that the intention was that the document itself would not operate as a conveyance but a separate regular kabala had to be executed so that title might pass to the vendee, and that the balance of the consideration money was to be paid at the time of the execution of the kabala. To my mind, reading the document as a whole, there can be no doubt that the intention of the parties was that it was to operate as an agreement and not as a conveyance.

Stress is laid upon the following passage in the document: ''''The said land became the absolute title of the said purchaser under this beyananama. We the executants have ceased to have any other title in the said land than to get the remaining consideration money."

In Pichi Kala Mangamma v. Pami Ramamma 16 Ind. Cas. 587 : 37 M. 480 : 12 M.L.T. 262 : (1912) M.W.N. 917 a Division Bench of the Madras High Court had to consider a document which was similarly worded. In that document it was stated "I have sold to you and put you now alone in the possession of the jeraiti land." That document also provided that the executant was to execute a sale-deed on a proper stamp-paper within three months. The learned Judges of the Madras High Court construed that document to be a mere agreement and not a conveyance. As regards the clause "I have sold to you", it was held that it really meant "I have entered into a binding agreement to sell to you." Possession had been delivered by the executant of the subject matter of the agreement in that case and still their Lordships held that the document did not operate as a conveyance and that possession was to be held under the conveyance to be executed subsequently.

The terms of the document in Dayal Singh v. Indar Singh 98 Ind. Cas. 508 : 31 C.W.N. 125 : AIR 1920 PC 94 : 24 A.L.J. 807 : (1926) M.W.N. 602 : 3 O.W.N. 634 : 24 L.W. 396 : 44 C.L.J. 97 : 7 P.L.T. 661 : 28 Bom. L.R. 1372 : 51 M.L.J. 788 : 53 I.A. 214 : 28 P.L.R. 10 (P.C.) also appear to be similar to the terms of the document now before us, and there also it appears to have been held that the document was a mere agreement to sell and not a sale.

I am, therefore, of opinion that the bai-beyananama of the 8th of September, 1919, was not a conveyance and did not pass title to the plaintiffs.

The, other findings of the learned Subordinate Judge are findings of fact, and it must be held that the defendants-second party had no notice of the agreement of the 8th of September, 1919. The question then remains which of the rival claimants acquired title under the deeds of the 9th of September, 1919. The learned Subordinate Judge has found that the deeds were really executed on the 10th of September, and that each party knew of the deed of the other party. He, however, has come to no finding as to which of the two deeds was executed first. It is contended on behalf of the appellants that the evidence on the record was not sufficient to enable the Court to come to a finding on that point. The learned Subordinate Judge, however, does not say so. If the evidence on the record be not sufficient to enable the Court to come to a finding that the conveyance executed in favour of the plaintiffs was in point of time executed first the plaintiffs are bound to fail. This question, however, was expressly laid down for decision in the order of remand, and upon the findings arrived at it is necessary to come to a decision on this point before the case can be finally disposed of.

The appeal, therefore, succeeds. The decree of the Subordinate Judge must be set aside and the case remanded to him for a finding as to Whether the conveyance executed in favour of the plaintiffs was executed prior in point of time to the conveyance in favour of the defendants-second party. If it be found that the plaintiffs'' document was executed first, the plaintiffs will be entitled to a decree. If it be found that the plaintiffs had failed to prove that their document was executed first, the suit will be dismissed. The case being in ejectment the plaintiffs can only succeed on proof of their title.

The result is that the appeal is allowed and the case remanded to the learned Subordinate Judge for decision as indicated above. Costs will abide the result.

Macpherson, J.

I agree.