FIRST APPEAL No.334 OF 1988 Against the judgment and decree dated 30.01.1988 passed by Sri G. Mahton, Sub Judge 10th, Patna in Title Suit No. 142 of 1977. RAM BACHAN DEVI & ORS. ………… Defendants/Appellants Versus YOGENDRA PD.SINGH & ORS ……….. Plaintiff/Respondent ******** For the defendant/appellant : Mr. Shashi Shekhar Dvivedi, Sr. Advocate. Mr. Ratnesh Kumar Singh, Advocate. Mr. Sunil Kumar Mishra, Advocate. Mr. Sanjay Kumar, Advocate. For the plaintiff/respondent : Mr. Ram Suresh Roy, Sr. Advocate. Mr. Kamala Prasad Roy, Advocate. Dated : 17th day of August, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendants-appellants have filed this first appeal against the judgment dated 30.1.1988 and the decree following thereupon signed on 17.2.1988 by Sri. G. Mahton, the learned Sub Judge 10th, Patna in Title Suit No. 142 of 1977 decreeing the plaintiff-respondent’s suit. 2. The plaintiff-respondent filed the aforesaid tile suit No. 142 of 1977 claiming relief that on declaration of the plaintiff’s title and want of title of the defendant Nos. 1 and 2 to the lands described in scheduled-I to the plaint, the possession of the plaintiff be confirmed and in the alternative, the possession may be delivered to the plaintiff. The plaintiff also prayed for mean profit from 25.7.1985 and also Mungeshwar Sahoo, J. -2- prayed for declaration that gift dated 12.1.1968 is forged, fabricated, created document and did not confer any title on the defendant No.2. 3. The plaintiff claims the aforesaid relief on the facts which may be stated in brief that the defendant Yogeshwar Singh is father-in- law of the plaintiff. Yogeshwar Singh had four daughters. The second daughter Sachita @ Chinta Mani Devi is the wife of plaintiff. The fourth daughter Ram Bachan Devi is the defendant no.2. Yogeshwar Singh himself is defendant no.1. It may be mentioned here that Yogeshwar Singh defendant no.1 died during the pendency of the appeal and his name has been expunged. According to the plaintiff, the defendant No.1 was in need of money so he took loan by executing several mortgage deeds, hand notes and Hath Pahicha and thereafter again when he was in need of money he sold the suit property for Rs. 10,000/- in favour of the plaintiff and a registered sale deed was executed on 4.2.1963. By this sale deed 7.05 acres of land described in schedule-I of the plaint was transferred. After execution of the sale deed possession was delivered. According to the terms of the sale deed substantial part of the consideration amount was to be paid to the mortgagees/creditors. The plaintiff paid the debts mentioned in the sale deed what he was liable to pay and has redeemed some of the mortgage himself and some by paying rehan money through the defendant No.1. The mortgagees returned the deeds which remained in possession of the defendant No.1 who is father-in-law of the plaintiff. 4. The further case of the plaintiff is that the plaintiff had to pay Rs. 1600/- for redemption of mortgage in favour of Munni Sao although it was recited only Rs. 1100/- in the sale deed. Bhuneshwar Singh, the brother of the defendant No.1 jointly with defendant No.1 executed seven rehan deeds in favour of Sheonarain Singh on 7.6.1946 for -3- Rs.1000/- each but out of that the plaintiff was to pay only the consideration of two rehan deeds. The said Bhuwneshwar Singh had taken Rs. 1000/- and paid to Shiv Narain Singh on 11.6.1985 and granted a receipt in token of the same. The defendant No.1 took Rs.500/- from the plaintiff on 28.6.1965 and paid it to Ramdeo Ram and Bandhu Ram for redemption of rehan deed dated 3.5.1960 and 11.6.1965. Further he took Rs. 325/- from the plaintiff and paid it to Basudeo Ram and Bandhu Ram for redemption of rehan deed 27.7.1961. Likewise he again took Rs.800/- on 13.6.1965 from the plaintiff for redemption of the rehan deed dated 7.7.1949 in the name of Charitra Tahakur. Besides the above, the defendant No.1 took a sum of Rs. 650/- for payment to Musafir Singh and Satyanarain Singh for redemption of their rehan deeds. 5. The further case is that the defendant no.1 had also taken loan from Shivdhar Dayal, Advocate who filed money suit No. 83 of 1962 which was decreed and the plaintiff paid the decreetal amount through the defendant No.1. The defendant No.1 also took loan of Rs.1010/- from one Damodar singh and executed hand note which was paid by the plaintiff. Defendant No.1 had also taken loan from Jagdamb Sahai who also filed money suit which was decreed and the plaintiff paid the decreetal amount. In the manner aforesaid, the plaintiff paid the entire consideration amount and requested the defendant No.1 to refund the registration receipt but he gave assurance only and the plaintiff relied on him as he is his father in law so after taking the sale deed from the registration office it remained with the defendant no.1. 6. The further case of the plaintiff is that because of the above registration of the sale deed on 4.2.1963 the title has passed in favour of the plaintiff and the defendant No.1 had no right, title, interest or -4- possession over the suit property but he cancelled the sale deed on 15.6.1967 and executed a gift deed in favour of the defendant No.2, the 4th daughter Ram Bachan Devi on 12.1.1968. Subsequently 144 Cr.P.C. proceeding was started which was converted to 145 Cr.P.C. proceeding and during the pendency of the said proceeding, the plaintiff was advised to file the suit. The plaintiff was mutated in respect to the suit property but D.C.L.R. on appeal by the defendant reversed the order in favour of defendant No.2 and on revision before the Commissioner, the Commissioner dismissed the revision of the plaintiff. Hence the suit. 7. On being noticed the defendants appeared and filed three sets of contesting written statement. The defendant No.1 filed separate written statement. The defendant No.2 filed separate written statement. The defendant Nos. 4 and 5 who are subsequent mortgagee of defendant No.2 have also filed a separate contesting written statement. Their defence is in similar line. According to them the defendant no.1 decided to sell the suit property measuring 7.05 acres for some of Rs.10000/- for payments to rehandars and to repay the loan. The plaintiff undertook to pay the consideration money within a short time but he never paid the amount mentioned in the sale deed inspite of reminders, so the sale deed was cancelled by the defendant. The defendant no.1 himself redeemed the entire rehan deeds mentioned in the sale deed by executing another rehan deeds and some of the rehan deeds were redeemed by the defendant No.2 after execution of gift deed in her favour. 8. The further case of the defendants is that the passing of title to the plaintiff was dependent on payment of whole consideration amount and as the plaintiff failed to pay the consideration amount in -5- spite of requests and reminders, the defendant had to withdraw the original sale deed from the registration office on 18.6.1964 and he continued in possession over the land mentioned in the sale deeds. The plaintiff never came in possession. The defendant no.1 having full right, title and interest in the suit land cancelled the said sale deed by another cancellation deed. The defendant No.2 in addition to the above further alleged that the suit is not maintainable as she is in possession of the lands after gift and has executed the sale deeds. She has also redeemed some of the rehan deeds as mentioned in the sale deeds. According to the defendant Nos. 4 and 5 they are the rehandars and vendee of Ram Bachan Devi and Yogeshwar Singh. 9. On the basis of these pleadings of the parties, the learned court below framed the following issues: (i) Has the plaintiff any cause of action for the present suit ? (ii) Is the suit maintainable in its present form ? (iii) Is the suit barred by limitation ? (iv) Has the plaintiff acquired right, title and interest and possession by virtue of the sale deeds as alleged. (v) Was the deed of cancellation dated 15.6.67 executed by defendant No.1 valid under law ? (vi) Has the defendant No.2 got right, title and interest possession by virtue of this deed of gift executed on 12.1.68 ? (vii) Is the plaintiff entitled to a decree as claimed for ? (viii) To what relief or reliefs the plaintiff is entitled to ? -6- 10. After trial the learned court below found that the suit is not barred by law of limitation. The learned court below also found that the recital never shows that passing of title is dependant upon the payment of the entire consideration money. Thus, the title passed to the plaintiff soon after the execution of the sale deed. The learned court below also came to the conclusion that the plaintiff has been able to prove the payment of consideration as described in the sale deed Ext. K. The some of the amount was directly paid by Yogendra Singh and some of the amount was paid through Yogeshwar Singh who is father in law of the plaintiff. The learned court below also found that the plaintiff has valid right, title and interest and possession soon after the execution of the sale deed and subsequent thereafter he has been dispossessed. On these findings the learned Court below decreed the plaintiff’s suit. 11. The learned Senior counsel for the appellant Mr. Shashi Shekhar Dvivedi submitted that the sale deed Ext. K dated 4.2.1963 was executed by the defendant no.1 in favour of plaintiff because he had taken several loans from different persons on rehans, hand notes and Hath chittha and to repay the same as mentioned in detail in the sale deed. The consideration was Rs. 10000/- and the plaintiff was required to pay Rs. 6875/- to the rehandars for redeeming rehans mentioned in the sale deed. It was stipulated in the sale deed that the plaintiff after redeeming the rehandars shall keep the rehans deeds with him and remaining Rs.3125/- was to be paid at the time of Taqabzul- badlain i.e. exchange of equivalent to the defendants for payment of loans on hand notes but the plaintiff neither redeemed any rehan nor paid the amount of Rs.3125 at the time of Taqabzul-badlain so title never passed on him but the learned court below without considering the legal position as laid down by the Hon’ble Apex Court as well as by -7- this Court on the basis of the recital in the sale deed came to the conclusion that on mere registration title passed to the plaintiff. Learned counsel relied upon various decisions of this Court such as, AIR 1949 Patna 364 Mohd. Murtaza Hussain Vs. Abdul Rahman, AIR 1953 Patna 330 Girish Narain Singh Vs. Akhtar Hussain and AIR 1978 Patna 97 Baldeo Singh and others Vs. Dwarika Singh and others and submitted that in similarly situated case, this court in the aforesaid decisions held that title did not pass to the plaintiff. Learned counsel submitted that the question whether the title passed upon execution of a sale deed and its registration or is postponed till payment of the entire consideration depends upon the intention of the parties. Learned counsel further submitted that the learned court below has wrongly appreciated the documentary evidences adduced by the defendants-appellants. On these grounds, learned counsel submitted that the impugned judgment and decree are liable to be set aside. 12. Learned Senior counsel Mr. Roy appearing on behalf of the plaintiff-respondent submitted that the registered sale deed dated 4.2.1963 is out and out sale. If the consideration amount was not paid then the defendant should have filed suit for cancellation of the sale deed within the prescribed period of three years from the date of registration but after expiry of the period of three years the plaintiff could not have cancelled the sale deed particularly, when the title has vested on the plaintiff. The plaintiff would have filed the suit for cancellation of the sale deed as provided under Section 31 of the Specific Relief Act as he had no right to cancel unilaterally. According to the learned counsel, there is no such provision for cancelling the document unilaterally that too after expiry of period of limitation. The learned counsel further submitted that there is clear recital in the sale -8- deed Ext. K that the amount of Rs.3125/- was paid at the time of execution of registration of the sale deed and there was no period fixed for payment of the amount to rehandars but even then the plaintiff paid the amount to the rehandars and because the defendant No.1 was the owner of the land the rehandars returned the document to him and moreover, the defendant no.1 himself took money from the plaintiff and paid the rehandars and kept the rehan deeds in his possession. The plaintiff relied upon him because he was his father-in-law. There was no dispute between them earlier but as soon as the 4th daughter of the defendant No.1 was married and the husband of 4th daughter came the dispute started and taking advantage of the possession of sale deed as well as rehan deeds the defendant No.2 got the sale deed Ext. K cancelled and also got a gift in her favour. According to the learned counsel considering all these aspects of the matter and the evidences available on record, the learned court below decreed the plaintiff’s suit as such there is no illegality. On these grounds the learned counsel submitted that this first appeal is liable to be dismissed. Both the parties have filed written arguments. 13. In view of the above rival contentions of the parties the points arises for consideration in this first appeal is as to whether the title passed to the plaintiff by Ext. K i.e. the registered sale deed dated 4.2.1963 and whether the plaintiff had paid the consideration amount as mentioned in the sale deed and whether the impugned judgment and decree are sustainable in the eye of law. F I N D I N G S 14. It may be mentioned here that the sale deed Ext. K is the original sale deed filed on behalf of the defendant whereas the certified copy of the said sale deed has been filed by the plaintiff, which has -9- been marked as Ext. I. It appears that this document is in Kaithi language. In the paper book also photocopies of the said documents is available. However, the appellants have got it translated and filed the same with I.A. no. 4406 of 2001 serving the copy of the same to the respondents. It is not disputed by the respondent. From perusal of the said sale deed i.e. the translated copy annexed with the said I.A. No. 4406 of 2001 it appears that 7.05 acres of land described in detail in the sale deed was transferred to the plaintiff and it is recited in the sale deed that after partition with his brother the defendant no.1 got the lands but since last some years the fields was not yielding sufficient crops and therefore, the defendants had taken loan through hand note and executing documents. During the time of marriage of second daughter also he obtained money by mortgaging the property and executing hand note. In such circumstances, he felt to sell substantial part of his property for repayment of the loan and redeeming the rehan lands. The plaintiff agreed to purchase the said lands for Rs. 10,000/-. In the sale deed the details of rehan deeds with consideration amount and debt has been mentioned and the plaintiff was required to pay the said amounts and redeem the loans total being Rs. 6875/-. It was stipulated that the plaintiff was required to pay the said amount to the said rehandars and shall keep the rehan deeds with him. Further for the remaining consideration of Rs. 3125/- it was stipulated that it was to be paid at the time of Taqabzul-badlain for payment of hand note loan to Sirdhar Dayal, Damodar Singh and Jagdamb Sahai and for personal expenses. 15. Mr. Dvivedi, learned Senior counsel submitted that although it was mentioned in the sale deed that at the time of Taqabzul-badlain Rs. 3125/- was to be paid but in fact it was never paid to the plaintiff -10- and further it was mentioned that after redeeming the plaintiff should keep the rehan deeds with him but neither the rehan deeds were in his possession nor he paid the balance consideration of Rs. 3125/- nor he took Chirkut of the sale deed and the sale deed was also never handed over to the plaintiff so in such circumstances, it cannot be said that title passed to the plaintiff on mere execution and registration of the sale deed. Learned counsel strongly relied upon AIR 1978 Patna 97 Baldev Singh and others Vs. Dwarika Singh and others. 16. From perusal of the said decision, it appears that the same averments which are made in the present sale deed were also made in the sale deed in that case which would be evident from paragraph 6 of the judgment. Considering the said recital in the sale deed in that case which is in the same term quoted in the plaint of this case and also in the impugned judgment, the division bench 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. At paragraph 5 it has been held as follows: “The question whether title to the property covered by a sale deed will pass to the vendee or not without payment of the full consideration money has been a subject-matter of controversy from time to time and it has been pointed out on several occasions by this court that it has to be ascertained on the facts and circumstances of each case. In some cases even if no consideration money has been paid, still the parties to the deed might agree that title will nonetheless pass to the vendee. In other cases, payment of the consideration money may be the condition for passing of the title to the vendee. This aspect of the matter has been considered in several Bench decisions of this Court, and reference in this connection may be made to -11- the cases of Md. Murtaza Hussain v. Abdul Rahman (AIR 1949 Pat 364), Motilal Sahu v. Ugrah Narain Sahu (AIR 1950 Pat 288), Panchoo Sahu vs. Janki Mandar (AIR 1952 Pat 263) and Shiva Narayan v. Baidya Nath Prasad (AIR 1973 Pat 386). Recently, this very Bench has considered the same point in the case of Mt. Orhulia v. Prasad Yadav (Second Appeal No. 386 of 1971), disposed of on 29-7-1977 (Pat).” 17. From perusal of the said decision it appears that the fact of that case is similar to this case at our hand. However, in that case the plaintiff admitted that neither consideration money was paid nor possession was delivered. The plaintiff tendered the consideration amount and asked for the registration receipt but the defendant neither accepted the consideration money nor made over the registration receipt. Hence the suit was filed. In the present case, according to the plaintiff he paid the entire consideration amount and came in possession. However, from perusal of the plaint itself it appears that the plaint was amended and subsequently the story of dispossession was introduced from the date of order passed under section 145 Cr.P.C. and as such prayed for means profit. 18. Learned counsel next relied upon AIR 1953 Patna 330 Girish Narayan Singh vs. Mohd. Akhtar Hussain. In that case, it was found that neither the sale deed was handed over to the vendee nor vendee came in possession of the property covered by the sale deed so the vender cancelled the sale deed and again he transferred the properties to the other defendants of that case. It was contended by the plaintiff in that case that with the execution of the sale deed the vendee acquired absolute title to the properties and, therefore, they are entitled to recover the possession. After considering the various -12- decisions it was held that no payment was made at the time of Taqabzul-badlain and, therefore, sale deed had not been made over to the vendee and possession had not been transferred. Same recitals were in the sale deed and it was found that the intention was that title will not pass unless the consideration money has been paid. It may be mentioned here that this decision has also been noticed in the case of Baldeo Singh (Supra). 19. In another division Bench case reported in AIR 1949 Patna 364 Mohd. Murtaza Hussain Vs. Abdul Rahman also the same view has been taken, it has again been followed in the aforesaid two decisions. It appears that in that case also in the sale deed same recital was there regarding passing of consideration. 20. In a decision reported in (2004) 9 SCC 734 Subbegowda (dead) By LR. Vs. Thimmegowda (dead) By LRs. the Hon’ble Supreme Court has held that a conditional transfer or a settlement accompanied by conditions is not unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the court will give effect to it unless there is some provisions of law which annuls or invalidates such conditions, restraint or limitation. In view of the above settled principles of law as discussed now it becomes clear that whether title of the property covered by a sale deed will pass to the vendee or not for want of payment of full consideration money has to be ascertained on the facts and circumstances of each case. In the present case at our hand according to the plaintiff he has paid the entire consideration amount. Whereas according to the defendant No.1 he has paid the rehandars and kept the rehan deeds and that the plaintiff has -13- not paid the balance consideration of Rs. 3125/- as stipulated in the sale deed. 21. From perusal of the sale deed it is clear that the following conditions are mentioned. (i) Out of total consideration of Rs.10000/-, Rs. 6875/- was to be paid by the plaintiff to the rehandars for redeeming rehans mentioned in the impugned sale deed. It may be mentioned here that in the sale deed Ext. K 10 rehan deeds in the name of different persons have mentioned. (ii) The further conditions were that the plaintiff after redeeming rehans should keep the rehan deeds with him. (iii) The futher conditions is that Rs. 3125/- was to be paid to the defendant No.1 in cash at the time of Taqabzul-badlain (exchange of equivalents) for payments of loan on hand notes. It was further stated that thereafter the plaintiff will come in possession and he shall get his name mutated. 22. Now let us see whether these conditions have been fulfilled by the plaintiffs. From perusal of various paragraphs of the plaint it appears that there is no pleading regarding payment of Rs. 3125/- in cash to the defendant No.1 at the time of Taqabzul-badlain. No doubt in the pleadings at paragraph 14 of the plaint it is said that he paid Rs. 900/- to the defendant No.1 and in his evidence PW 1 stated so but there is no documentary evidence in support of it. The defendant No.1 denied to have received the said amount from him. Except this there is no pleading and evidence regarding payment of Rs.3125/- 23. The plaintiff had tried to make out a case that Damodar Singh had given loan