Siddireddy Satyanarayana and Others vs Kadim Papa Rao

Krishna Saran Shrivastav, J.—The defendants are the appellants. Suit for recovery of the suit property has been decreed against them by the first appellate Court, reversing the judgment and decree of dismissal of the suit by the Subordinate Judge, Rajahmundry.

The facts of the case giving rise to this appeal, in brief, are that, the first appellant on behalf of himself and his minor sons, that is the defendants Nos. 2 and 3 had executed a sale deed, Ex.A-1, for a consideration of Rs. 12,000/- on 28-6-1974, in favour of the deceased plaintiff Kadim Venkataswamy, after receiving an advance of Rs. 3,500/- and the balance amount of consideration of Rs. 8,500/- was agreed to be paid before the Sub-Registrar at the time of registration of sale deed, Ex.A-1. Although it was mentioned in the sale deed, Ex.A-1, that the vendor had put the deceased-plaintiff Kadim Venkataswamy in possession of the suit property, yet, it was not delivered to him, because it was agreed between them that its possession would be delivered after three months therefrom, because, some tenant was occupying some part of the suit property. The deceased-plaintiff filed the suit for recovery of vacant possession of the suit property and for damages for its use and occupation, alleging that subsequent thereto, the appellants evaded the delivery of possession of the suit property and getting the sale deed, Ex.A-1, registered and, therefore, he filed the sale deed, Ex.A-1, before the Sub-Registrar for registration and the Sub-Registrar, after holding due enquiry, registered the sale deed, Ex.A-1, on 19-4-1975. The deceased plaintiff had offered the payment of the balance amount of consideration and had deposited the amount at the time of institution of the suit.

The appellants resisted the suit alleging that the 1st appellant was a man of feeble-mind and his mental condition was not good at the time of execution of the sale deed, Ex.A-1, that the intention of the appellants was to sell the suit property only on receiving the whole amount of consideration, that the payment of Rs. 8,500/- by the deceased plaintiff was a condition precedent for transferring the suit property in his favour, that the deceased plaintiff was never ready to pay the balance amount of consideration and, therefore, they were under the impression that the transaction had been treated as cancelled, but suddenly the deceased plaintiff, taking advantage of the possession of the sale deed, Ex.A-1, had submitted it before the Sub-Registrar without notice to the appellants and got the sale deed, Ex.A-1, registered, that the sale deed did not confer any title on the deceased plaintiff and, therefore, he was not entitled to take the vacant possession of the suit property. In the alternative, they have pleaded that the deceased plaintiff was liable to pay the balance amount of consideration with interest at the rate of 12 per cent per annum.

On assessment of the evidence on record, the trial Court dismissed the suit holding that the payment of the balance amount of consideration of Rs. 8,500/- was a condition precedent and the intention of the appellants was to convey the title only on receipt of the balance amount of consideration. This decree of dismissal of the suit has been successfully challenged by the adopted son of the deceased plaintiff who had died during the pendency of the suit.

Feeling aggrieved by the judgment and decree of the first appellate Court, the defendants have preferred this appeal.

Relying on the cases of Motilal Sahu v. Ugrah Narain Sahu and Ors. AIR 1950 Oat 288, Panchoo Sahu Vs. Janki Mandar and Others, , Shiva Narayan Sah and Others Vs. Baidya Nath Prasad Tiwary and Others, , Ram Chandra Singh and Others etc. Vs. Sub-divisional Officer, Hajipur and Others, , Hara Bewa and Others Vs. Banchanidhi Barik and Others, , Ananda Chandra Pradhan Vs. Nilakantha Tripathy and Others, and The Melur Co-operative Marketing Society Vs. Salia Mariam and Others, , it has been contended on behalf of the appellants that, the intention of the deceased plaintiff and the appellants should be judged from the recitals of the sale deed, Ex.A-1, in order to decide whether the sale deed, Ex.A-1, operates as a transfer of interest from the appellants to the deceased plaintiff on the date of its execution, that is 28-6-1974/19-4-1975. In the sale deed, Ex.A-1, it is clearly mentioned that, on payment of the balance amount of consideration of Rs. 8,500/-, the sale deed, Ex.A-1, would be registered. The possession of the suit property remained with the appellants. The deceased plaintiff had neither tendered the amount of balance consideration of Rs. 8,500/- nor had deposited with the Sub-Registrar, Rajahmundry, before registration of the sale deed, Ex.A-1. The title in respect of the suit property had not been legally transferred to the deceased plaintiff. When the intention was clear, then, merely because the deceased plaintiff had succeeded in getting the sale deed, Ex.A-1, registered in his favour had not conferred any title on him and, therefore, the appellate Court should have dismissed the appeal of the respondent.

It is a matter of record that, in spite of service of notice of appeal, the respondent did not appear.

In the case of Motilal Sahu AIR 1950 Oatba 288, the sale deed recited the passing Of full consideration and the delivery of possession to the vendee, but it was found that actually not a farthing passed under the sale deed and the possession and the registered sale deed remained with the vendor. A Division Bench of the Patna High Court, under these circumstances, held that the interference was irresistible that the intention of the parties was that title would not pass unless consideration money was paid and as the consideration was never paid, the title in the property remained with the vendor.

Again, a Division Bench of the Patna High Court, in the case of Panchoo Sahu (supra), held that, whether title passed on the mere execution and registration of the sale deed or whether the intention of the parties was that title would not pass until the full consideration was paid, is to be gathered from the sale deed itself. In this case also, it was mentioned in the sale deed in question that the whole amount of consideration was paid by the vendee to the vendor and the vendor had put the vendee in occupation of the vended property and that on receipt of the fair consideration of money, the vendor sold the vended land. It was held in this case that, these recitals clearly indicated that the title would pass and possession would be delivered on payment of the "whole and entire consideration money" and that the bulk of consideration was paid was immaterial and would not pass the title. These two cases have been referred to with approval by a later Division Bench of the Patna High Court in the case of Shiva Narayan Sah and Ors. (supra). In this case, it was held that the sale deed, Ex.5/a, did not confer title to the vendee with the execution and registration of the deed, because, the title was to pass at the time of exchange of equivalents when the vendee was required to pay the balance amount of consideration money to the vendor and the vendor was to handover registration receipt to the vendee, but the alternate argument of the vendee was accepted that the title did pass to the vendee later in the month of March, 1960 when the vendee had tendered the balance amount of consideration money to the vendor who was not entitled to refuse to accept the amount which was available within a reasonable time and, therefore, the sale deed was found valid from the date of the performance of the part of the contract by the vendee by tendering the balance amount of consideration.

In the case of Earn Bewa and others (supra), it is held that, where the question arises whether title passes on the registration of the document of sale or whether passing of the title depends upon the passing of consideration, the primary criterion is the recitals in the document. If the recitals in the document are indecisive or ambiguous, the surrounding circumstances and the conduct of the parties would be relevant. Similar view has been taken in the case of Ananda Chandra Pradhan (supra) that, in such cases, intention is to be gathered primarily from the recitals in the sale deed and if they are ambiguous, from the surrounding circumstances and the conduct of the parties.

The position of law that emerges from the principles laid down in the aforementioned cases, is that the question as to whether title from the vendor to the vendee has passed on the execution and registration of the sale deed or not on account of non-payment of consideration money, depends upon the intention of the parties which has to be looked into to decide whether the sale deed operated as a transfer of interest from the vendor to the vendee on the date of its execution. If the intention was to transfer the title, then, it is wholly immaterial whether the whole amount of consideration or part of it remained unpaid. Where the recitals in the sale deed are indecisive or ambiguous, then only the Court should consider the conduct of the parties and the surrounding circumstances to determine the intention of the parties at the time of the execution of the sale deed. Where there is evidence on record that the balance amount of consideration was tendered or paid to the vendee (sic. vendor), even subsequent to the execution of the sale deed, but within a reasonable time, title would be deemed to have passed from the date of such offer to pay the consideration of the actual payment.

The question, therefore, is whether the title has passed to the respondent on the date of execution and registration of the sale deed, Ex.A-1, or the intention of the parties to the sale deed, Ex.A-1, was that the title would not pass until the balance amount of consideration of Rs. 8,500/- was paid?.

The relevant portions of the sale deed, Ex.A-1, recite as follows:-

"We have sold the same to you for a consideration of Rs. 12,000/-. Out of the said sale consideration, we have received Rs. 3,500/- from you at the time of execution of the document and since you have agreed that you shall pay us the balance of Rs. 8,500/- at the time of registration of this deed in presence of the Sub-Registrar, Rajahmundry, we have received the sale consideration in full. Therefore, from now onwards, withdrawing our rights in the sale property, we put in absolute right and deliver of the same forthwith. You shall pay the panchayat taxes etc."

It again recites, lower down that:-

"We got this sale deed executed in your favour. Transfer memos are filed herewith to get your name mutated in the revenue records. The sale deed documents 17-6-1973 and 13-2-1974 through which we have purchased this property are herewith delivered to you as link deeds (or vouchers)."

The point arose in this case directly for consideration, on facts, is very much similar to the facts of the case in the Melur Co-operative Marketing Society (supra). In this case, the vendors were the mother and her three minor sons and the mother acting for herself and as guardian of the minor sons had executed the sale deed for Rs. 2,450/-. This document recited that the vendors had received Rs. 550/- on the date of the execution of the sale deed and the balance amount of consideration, that is Rs. 1,900/- would be received in the presence of the Sub-Registrar at the time of registration of the sale deed. Later, one of the vendors, that is the mother, sent a notice to the vendee to pay the balance amount of consideration before the Sub-Registrar within a week after the execution of the sale deed and get it registered. After about a month, the vendee presented the document before the Sub-Registrar and when noticed, she admitted the execution, but stated that the vendors were not willing for the registration of the document because the vendee was not willing to pay the sum of Rs. 1,900/-. The Sub-Registrar on the ground that the execution was admitted, registered the document. The sale deed recited that, on the date of its execution, the vendors had received the sum of Rs. 550/- in cash. Then, it recited that the balance amount of consideration of Rs. 1,900/- would be paid before the Sub-Registrar and in that way the sum of Rs. 2,450/- had been received and the vendee was entitled to enjoy the property with absolute powers of alienation. It is held in this case that the payment of the price is not necessarily a sine qua non to the completion of the sale. If the intention is that the property should pass on registration, the sale is complete as soon as the deed is registered, whether the price has been paid or not. Then, the purchaser is entitled to sue for possession although he has not paid the price. This would follow from the words of Section 54 of the Transfer of Property Act, "price paid or promised or part paid or part promised". If the price is not paid, the seller on that account cannot repudiate the sale and his only remedy is to sue for the price or the balance of the price unpaid. Applying this principle, the learned Single Judge of the Madras High Court, on the aforementioned facts, concluded that the intention of the parties was that the title should be passed to the vendee.

The relevant contents of the sale deed, Ex. A-1, reproduced in Para 13 above, show that the payment of whole amount of consideration of Rs. 12,000/- had been received by the appellants by accepting Rs. 3,500/- on the same day and agreeing to receive the balance of Rs. 8,500/- at the time of registration of the sale deed in the presence of the Sub-Registrar. The transfer memos were also delivered to the deceased plaintiff for getting his name mutated in the revenue records. The link deeds, that is to say the sale deeds, dated 17-6-1973 and 13-2-1974 were also delivered to the deceased plaintiff. They had withdrawn their rights in the sale property from the date of execution of the sale deed, Ex.A-1. The responsibility to pay the future taxes was undertaken by the deceased plaintiff. True that possession of the suit property was not delivered on the same day to the deceased plaintiff, but it was by virtue of the subsequent oral agreement that the possession of the suit property would be delivered within a period of three months therefrom and, therefore, from the mere fact that the possession remained with the appellants, even after the execution of the sale deed, Ex.A-1, is not a material circumstance for deciding the intention of the parties to the sale deed, Ex.A-1. The sale deed, Ex.A-1, was also delivered to the deceased plaintiff after its execution by the first appellant. It is pertinent to note that, when the first appellant had appeared before the Sub-Registrar in answer to the notice issued to him for holding enquiry, he had not stated in his statement, a copy of which is at Ex.A-4, that payment of Rs. 8,500/- was a condition precedent for conveying the title in respect of the suit property in favour of the deceased plaintiff and the Sub-Registrar on assessment of the evidence had found that the first appellant had executed the sale deed, Ex.A-1, and, therefore, it was registered. There is no provision under which the Sub-Registrar could obtain and keep in deposit with him the balance amount of consideration of Rs. 8,500/-. There is evidence on record that the balance amount of consideration had been offered to the

From the aforesaid discussion, there could be no doubt that the sale deed, Ex.A-1, was intended to operate as a conveyance immediately after its execution and the title in the suit property passed in this case from the vendors to the vendee on the execution and registration of the sale deed, that is on 28-6-1974/19-4-1975. Even otherwise, as noted above, the vendee, that is the deceased plaintiff, had not only tendered the balance amount of consideration to the appellant, but had deposited the same at the time of institution of the suit and even for the sake of argument it is held that the title did not pass to the deceased plaintiff with the execution of the sale deed, Ex.A-1, it did pass on the date on which the offer was made by the deceased plaintiff and refused by the appellants, or at least from the date of institution of the suit when the balance amount of consideration was deposited with the trial Court.

Viewed from any angle, there appears to be no force in the contention of the learned Counsel of the appellants that, title in respect of the suit property did not pass to the deceased plaintiff in spite of the execution and registration of the sale deed, Ex.A-1.

In result, the appeal fails and is hereby dismissed. However, in the circumstances of the case, I leave the parties to bear their own costs throughout.