Ownership and the title in property pass on to the transferee under the terms and conditions of the deed of conveyance Section 8 of the Transfer of Property Act: Tripura High Court

HIGH COURT OF TRIPURA RFA 18 2015 1.Sri Parimal Ghosh son of Late Prafulla Ghosh. 2.Sri Bimal Ghosh. son of Late Prafulla Ghosh. 3.Sri Shyamal Ghosh. son of Late Prafulla Ghosh. 4.Smti Swapna Rani Ghosh W O. Sri Parimal Ghosh. All are resident of Village Karayiamura P.S. R.K. Pur P.O. R.K. Pur District Gomati Tripura. Appellant(s) Versus 1.Sri. Nandalal Ghosh S O. Late Sashi Kr. Ghosh. 2.Sri Sanjit Ghosh S o. Sri Nandalal Ghosh. Both are resident of Village Karayiamura P.S. R.K. Pur P.O. R.K. Pur District Gomati 3.Sri Himangshu Ghosh S o. Late Krishna Ghosh. 4.Sri Nirmal Kanti Ghosh S o. Late Jamini Ghosh. Both are resident of Village Karayiamura P.S. R.K. Pur P.O. R.K. Pur District Gomati Respondent(s) For Petitioner(s) : Mr. P Chakraborty Advocate : Mr. D Bhattacharya Advocate For Respondent(s) Whether fit for reporting Date of hearing Date of pronouncement NO 06.01.2021 31.03.2021 HON BLE MR. JUSTICE S. TALAPATRA HON BLE MR. JUSTICE S.G. CHATTOPADHYAY Talapatra J. JUDGMENT & ORDER This appeal under Section 96 of the CPC arises from the judgment dated 29.09.2015 delivered in T.S. No.39 of 2013 by the Civil Judge Sr. Div. Gomati District Udaipur. The said suit was instituted for declaration of right title interest and cancellation of sale deed recovery of possession perpetual injunction and mesne profit. The respondent No.1 hereinafter referred to as the plaintiff No.1 became the owner of the suit land mentioned in the Schedule “A” of the plaint measuring 1.60 acre by way of allotment made by the Collector under Section 14 of the TLR & LR Act. The Plaintiff No.1 had executed a General Power of Attorney in favour of his son the plaintiff No.2 vesting authority upon him to do all acts on his behalf over his properties including the suit land]. The plaintiff No.1 started possessing the suit land in the year 1967 though the allotee Khatian was opened in his name in the year 1975. Taking advantage of his absence from the suit land his brother Prafulla Kumar Ghosh recorded his possession over 0.72 acres of land in the allottee Khatian. The defendant No.6 did the same act over the land measuring 0.0161 acre. In the year 1993 the plaintiff left the suit land for Kolkata authorising Sri Priyalal Ghosh to look after the land. From the year 2006 being advised by Sri Priyalal Ghosh the plaintiff No.1 raised Rubber plantation within 0.40 acre of the “A” Schedule land. In that year Sri Priyalal Ghosh informed the plaintiff No.1 to appoint any other person to assist him in looking after the property of the plaintiff No.1. The plaintiff No.1 having regard to that request requested his nephews the defendants No. 1 to 3 to assist Sri Priyalal Ghosh and the said defendants suggested the plaintiff No.1 to appoint the defendant No.5 as his Attorney for looking after the property and to do all the acts on his behalf and accordingly the Plaintiff No.1 appointed the defendant No.5 as his Attorney in respect of the land measuring 0.80acres within the “A” schedule land after executing a Registered Deed of Power of Attorney bearing No.IV 2 dated 05.01.2007. In the year 2012 the plaintiff No.1 returned to the suit land and appointed his son as his attorney and demanded the Deed of Power of Attorney from the defendant No.5 but the defendant No.5 did not return the said Power of Attorney. In the first week of January 2013 the defendant No.5 disclosed to the plaintiff No.2 that under tremendous pressure from the husband and her husband‟s brothers i.e. the defendants No. 1 to 3 she was compelled to execute three sale deeds in their favour without payment of consideration amount. As stated by the plaintiff for executing such sale deeds no prior sanction of the plaintiff No.1 was taken. The plaintiff also pleaded that though it was mentioned in the sale deed that a total sum of Rs.10 00 000 was given for purchasing 0.80 acre of land but such consideration amount was actually not paid and the defendants No.1 to 3 had no source of income for earning such huge amount and so the plaintiff No.1 prayed to declare those Sale Deeds vide No. 1 1932 1 1933 and 1 1934 dated 26.09.2012 as void. The plaintiff No.1 cancelled the Deed of Power of Attorney dated 05.01.2007 and on 01.08.2013 the fact of cancellation was informed to the defendant No.5. The plaintiff No.1 has also contended that the defendants No. 1 to 3 dispossessed the plaintiff No.1 from the land described in Schedule “B(i) to “B(iii)” respectively on 13.06.2013 which are the part and parcel of the “A” Schedule land and on the same date the defendant No.6 also dispossessed the plaintiff No.1 from the schedule “B(iv)” land of the plaint. However the plaintiffs are in exclusive possession of “C” schedule land but there is threat from the defendants No. 1 to 3 and the defendant No.6 that they shall occupy the land forcibly. Thus a prayer for granting injunction has been made against the defendants. The plaintiff No.1 used to derive income of Rs.4 000 from each piece of land mentioned in the schedule B(i) B(ii) B(iii) and B(iv) and so the plaintiff No.1 is entitled to get mesne profit from the defendants till the date of dispossession till the date of recovery. Hence the suit was The defendants having received the summon filed the written statement and denied the facts relating to the transfer of property as alleged to have been made in connivance. Even the record of rights was opened on the basis of those sale deeds but no notice was received by the plaintiff No.1 as the owner. Thus it appeared to the plaintiff No.1 that the „Settlement staffs‟ were hand in gloves. It has been contended in the written statement that the plaintiff No.1 with a view to sell out his share within the suit land measuring 0.80 acres took consideration amount of Rs.10 00 000 from the defendants No. 1 to 3 and executed a deed of power of attorney in favour of the wife of the defendant No.1 i.e. the defendant No.5 to execute deeds of sale in his absence whenever it is required by the defendants. Accordingly deeds of sale on behalf of the plaintiff No.1 were registered in favour of the defendants No. 1 to 3. It has been also contended that the defendants were always in possession of the suit land and to get the entry in the ROR corrected which entry till then stood in the name of the plaintiff No.1 the defendants requested the plaintiff No.1 to execute the deed of sale in favour of the defendants No. 1 to 3. the plaintiff had demanded Rs.1 50 000 defendants for transferring the share in their name. However the defendants handed over Rs.50 000 on the day of execution of the unregistered agreement for sale with a condition that the rest amount of Rs.1 00 000 would be handed over to the Plaintiff No.1 after execution of the deed of sale. But in spite of repeated requests by the defendants the plaintiff No.1 denied to execute any deed of sale in favour of the defendants No. 1 to 3. 10. Having examined the rival pleadings the following issues were framed: i) Whether the suit is maintainable in its present from and nature ii) Is the plaintiff No.1 eneitlted to get his right title and interest over the “A” Schedule land iii) Are the plaintiffs entitled to get a declaration over the Sale Deeds bearing No. 1 1932 101933 1 934 dated 26.09.2012 executed by the defendant No.5 on behalf of the plaintiff No.1 in favour of the defendant No. 1 to 3 are invalid void and inoperative iv) Are the plaintiffs entitled to get a decree to recover possession of the “B(i)” “B(ii)” “B(iii)” and “B(iv)” schedules of the plaint by evicting the defendants No. 1 to 4 there from v) Are the plaintiffs entitled to get a decree of perpetual injunction restraining the defendants No. 1 to 4 from entering into the “C” schedule land vi) Are the plaintiffs entitled to get mesne profit from the date of their dispossession till recovery of possession of the land described in the Schedule “B” and the same is to be paid by the defendants No. 1 to 4 proportionately to the plaintiff No.1 vii) Whether the plaintiffs are entitled to get any other relief reliefs 11. The plaintiff in order to prove his case admitted documentary evidence and adduced and examined other witnesses. The defendants adduced four witnesses and also admitted some documents. 12. After the evidence was recorded the civil Judge having appreciated the evidence as recorded at the instance of the parties has observed that unlawful possession of the land mentioned in schedule “B(iv)” of the plaint and in some portions of the plaint it is mentioned that the defendant No.6 namely Sri. Nirmal Kanti Ghosh is in the unlawful possession of the said property. The defendants have also in the written statement stated that the defendant No.4 is in occupation of the said scheduled property but in the last part of the written statement it has been admitted by the defendants that the defendant No.6 is in possession of the said property and the defendant No.4 has been unnecessarily added as the defendant in the suit. Thus the issue No.1 was decided in favour of the plaintiff. 13. While deciding issue No.iii the civil judge has returned the finding having regard to the sale deeds bearing No. 1 1931 1 1933 and 1 1934 dated 06.09.2012 as executed by the defendant No.5 for and behalf of the plaintiff No.1. The civil judge has observed thatthe defendant No.5 sold out the land without prior sanction of the plaintiff No.1 andthe defendant No.5 sold out the said land without any consideration money to the defendants No.1 to 3. 14. Learned counsel for the defendants has submitted that the power of attorney was executed by the plaintiff No. 1 so that the defendant No.5 can execute the sale deeds in favour of the defendants No.1 to 3 in absence of the plaintiff No.1 as per the prior oral agreement which was entered into prior to execution of the power of attorney dated 05.01.2007. The sum of Rs. 10 00 000 was paid as consideration money to the plaintiff No.1 by the defendants No. 1 to 3. 15. It appeared to the civil judge on perusal of the power of attorney dated 05.01.2007 that plaintiff No.1 had authorised the defendant No.5 to sell out his property to anyone or any institution after bargaining the price and she was authorized to transfer the land to anyone by completing the required process. 16. Nowhere in the power of attorney it has been mentioned that for transferring the property of the plaintiff No.1 prior consent was to be taken by the defendant No.5. So the argument of prior consent as made by the learned counsel for the plaintiff has not been considered tenable by the civil judge. 17. From perusal of the records it surfaces that the plaintiff No.1 executed the power of attorney in favour of the defendant No.5. Simultaneously it can be located that said power of attorney was executed at the suggestion of the nephews of the plaintiff No.1. But the plaintiff No.1 has flatly Rs.10 00 000 to him by the defendants No. 1 to 3. 18. The defendants did not submit any money receipt in respect of payment of such consideration amount of Rs.10 00 000 . The defendants No. 1 to 3 have submitted that since there existed a cordial relation between the defendants No. 1 to 3 and the plaintiff No.1 no money receipt was taken. But during cross examination of DW1 it has been admitted that on the date of execution of the power of attorney one unregistered sale of agreement was executed relating to the ‘shares of the defendants No. 1 to 3’ by operation of which the plaintiff No.1 was to execute sale deeds in favour of those defendants. 19. The civil judge had recorded the following finding on further appreciation of the evidence: “Generally when an amount like Rs.10 00 000 is handed over being a consideration amount of an Agreement a person having common prudence shall take a money receipt of the same. But surprisingly though the defendants No. 1 to 3 took money receipt for payment of Rs. 50 000 from the plaintiff No.1 did not take money receipt for payment of Rs.10 00 000 . So it is very difficult to believe that prior to execution of Sale Deeds consideration amount was paid.” Emphasis added] 20. The civil judge has taken note of the admission made by DW1 DW2(Smt. Swapna Rani Ghosh) and DW4that on the day of execution and registration of the sale deeds no consideration amount was paid. Even the attorney namely Smt. Swapna Rani Ghosh admitted that she took no consideration amount from Sri Shyamal Ghosh Shri Bimal Ghosh or Shri Parimal Ghosh i.e. defendants No. 1 2 and 3 in the suit. Thus the civil judge has observed that it is highly improbable that the sale deeds were executed on payment of consideration amount and so the contention of the defendants that they paid the consideration amount to the plaintiff No. 1 cannot be relied on. 21. Having regard to Section 25 of the Indian Contract Act the civil judge has observed that since no consideration was paid transfer of the land as stated above is void. The defendants No. 1 2 and 3 even though have claimed that they have paid consideration amount of Rs.10 00 000 to the plaintiff No.1 but they have failed to prove such payment in the transaction. As a result the sale deeds are void and inoperative for all purposes. 22. Even though the defendant No.5 Smt. Swapna Rani Ghosh had authority to sell out those immovable properties but such sale without consideration money has not only affected the interest of the plaintiff No. 1 adversely but also made the transaction void even though the transaction was carried out by the registered sale deeds as noted before. 23. One of the important observations made by the civil judge reads as follows: “Moreover no date time and place of such payment of consideration amount is mentioned by the defendants. There is no explanation from the side of the defendants why the deeds of sale were not executed on the date of payment of alleged consideration amount and why those were executed after five years of execution of the power of attorney deed. Thus again appreciation goes in favour of the plaintiffs in this respect.” 24. Finally the civil judge has held that it has been proved by the plaintiffs that no consideration amount was paid in refund to the alleged transfer of property made by the attorney of the plaintiff No.1. Under these circumstances the transfers of lands being made without consideration by the deeds of sale being 1 1932 1 1933 and 1 1934 dated 26.09.2015 are liable to the cancelled and if those instruments are left outstanding those may cause serious injuries to the plaintiffs in future. Hence those are directed to be shown as cancelled in the book by the District Sub Registrar. 25. On the aspect of mutation of record of rights by virtue of those sale deeds the civil judge while deciding the issue No.2 having referred to the schedule of the plaint has observed that schedule A land appertains to RS Khatian No. 363 comprised RS Plot No.1517 RS Plot No. 1519 RS Plot No.1520 and RS Plot No.1521 and within the plots there situate land measuring 1.60 acres. Khatian No. 363 shows that the said khatian is the record of right of the A scheduled land. As per the khatian the suit land was admitted in the name of Shri Nandalal Ghosh i.e. the plaintiff No. 1 and still he is the owner of the land being the allottee. The contention of the defendants that actually the land mentioned in the schedule A land was under the occupation of the plaintiff No.1 and his brother Prafulla Kumar Ghosh who is the predecessors in interest of the defendants No. 1 2 and 3 is not borne in any record. But the plaintiff No. 1 being an influential person had in connivance with the settlement staff got one allotment khatian created in his favour. 26. The record of rights has a presumptive value. Thus there cannot be any difficulty to hold that the entire A schedule land was allotted in favour of the plaintiff No. 1. It has been observed by the civil judge that the plaintiff No. 1 is the title holder of the land. 27. The issue No. iv framed on the aspect of unlawful possession as stated by the plaintiff. Schedules B(i) to schedule B(iv) according to the plaintiffs were under wrongful possession of the defendants No. 1 2 3 and 6. According to the defendants No. 1 2 and 3 their father namely Prafulla Kumar Ghoshwas in possession of the suit property appertaining to RS plot No. 1517 measuring 0.72 acres. After his death the defendants No. 1 to 3 and defendant No. 5 being his wife are in occupation of the land. 28. Records related to schedule B(i) Schedule B(ii) and Schedule B(iii) land have demonstrated that the defendants No. 1 to 3 were in possession of the total land measuring 0.74 acre. A small piece of land measuring 0.02 acre is in access of the land mentioned in the Khatian. There is no doubt or dispute that the entire suit land described in the Schedule A was allotted to the plaintiff No. 1 in the year 1975 and hence the plaintiff No. 1 had no right to transfer the said land without prior permission of the Collector. Hence the defendants No. 1 to 3 and defendant No. 6 are liable to be evicted for their respective occupations over the suit land. 29. The civil judge has also granted perpetual injunction against the defendants in respect of the C schedule land which is part and parcel of A schedule land as that C schedule land is still under occupation of the plaintiffs. Thus the defendants have been refrained from disturbing the possession of the plaintiffs. 30. The civil judge has referred a decision of this Court in Haradhan Choudhury and Ors. Vs. Barada Kumar Sen and Ors reported in1 TLR 525 as regards the mesne profit. Such relief can only be granted on the basis of the cogent evidence laid before the court. Mere bald statement of the plaintiff cannot entitle ipse dixit the plaintiff mesne profit unless such claim is supported by reliable evidence. 31. Finally the civil judge has declared that: a) The plaintiff No. 1 has right title and interest over the suit land mentioned in the Schedule A of the plaint appertaining to R.S. Khatian No. 363 having R.S. Plot No. 1517 land measuring 0.72 acres R.S. Plot No. 1519 land measuring 0.20 acres R.S.Plot No. 1520 land measuring 0.52 acres and R.S. Plot No. 1521 land measuring 0.16 acres in total the land measuring 1.60 acres under Tehsil Bagma Mouja Kariayamura being an allottee b) The registered deeds of sale bearing Nos. 1 1932 1 1933 and 1 1934 all dated 26.09.2012 executed by the defendant No. 5 on behalf of the plakitniff No. 1in favour of the defendants No. 1 to 3 and registered at Sub Registry Office Udaipur Gomati District is void and in operative and liable to be cancelled. The defendants No. 1 to 3 shall deliver and cancel the same with the Sub Registry Office Udaipur Sub Division Gomati District. c) It has been directed that a copy of the judgment and decree be sent to the office of the sub registrar Udaipur Gomati District who shall attest note on the copies of the said instruments contained in his book the fact of their d) The defendants No. 1 to 3 and the defendant No. 6 shall vacate the suit land mentioned in the Schedule B(i) Schedule B(ii) Schedule B(iii) and Schedule B(iv) respectively within a period of thirty days from the date of drawing up of decree and shall hand over the vacant possession of the same to the plaintiff No. 1. The said defendants are also perpetually retrained from entering in to the above mentioned scheduled land after vacation of the e) The defendants No. 1 to 3 and the defendant No.6 are perpetually restrained from entering into the C Schedule land and disturbing the peaceful possession of the plaintiffs 32. Mr. P Chakraborty learned counsel having appeared for the defendants No. 1 to 3 and 5 the appellants herein has submitted that even the plaintiff No. 1 has not disputed that the defendant No. 5 was lawfully constituted attorney of the plaintiff No.1 and the said attorney was authorised to sell the property to any person or any organisation. 33. The defendant No. 5 sold the property to the defendants No. 1 to 3 three sons of Prafulla Ghosh when a sum of Rs.10 00 000 was paid to the plaintiff No. 1 as the consideration. In support thereof Mr. Chakraborty learned counsel has referred to the evidence of DW1 where he had volunteered that transaction of consideration amount was made prior to the execution of those deeds of sale between Shri Nandalal Ghosh and the defendants No. 1 to 3. He has also referred to the statement of DW2 that defendants No. 1 to 3 were in possession of the suit land prior to the execution of the sale deeds and they continued in the said possession. The reference has been made by Mr. Chakraborty learned counsel appearing for the appellants that in the year 2000 while the plaintiff No.1 came to Kariyamura to visit his niece and other relatives then the defendants No. 1 to 3 requested their uncle 1 TLR 213 where this court had occasion to observe that it is settled principle of law that ownership and the title in a property pass on to the transferee under the terms and conditions of the deed of conveyance Section 8 of the Transfer of Property Act declares that on a transfer of property all the interests which the transferor has or he was having at that time capable of passing to pass on such transfer unless a different intention is expressed or necessarily implied. A combined reading of section 8 and section 54 of the Transfer of Property Act suggests that through execution and registration of a sale deed the ownership and all interest in property shall pass to the transferee and that would be on terms and conditions embodied in the deed indicating the intention of the parties. supra) as under: 37. It has been further observed in Rakhi Debbarma “31. Chapter II of Indian Contract Act 1872 deals with contracts which are voidable contracts and void agreements and all such agreements and contracts that fulfil the requirement of section 10 and entered with free consent of the parties or competent to contract for a lawful consideration with lawful object under any law relating to the registration is required to be complied with and considered to be a legally executable contract under the Act.” 38. From the other side Mr. D Bhattcharjee learned counsel in order to repel the submission advanced by Mr. Chakraborty learned counsel has stated that the incidence of payment of consideration money to the extent of Rs.10 00 000 to the defendants No. 1 to 3 has not at all been proved. No prudent person shall believe such hoax. According to Mr. Bhattacharjee learned counsel there is no legal evidence to prove the claim of payment of consideration money for transferring the land in the schedules B(i) B(ii) B(iii) and B(iv). 39. The ultimate question that arises in this appeal is whether or not the transaction as reflected in sale deeds bearing No. 1 1932 1 1933 and 1 1934 dated 06.09.2012 are all void and inoperative. Mr. Bhattacharjee learned counsel has further submitted that the civil judge has correctly observed that when for granting advance of Rs.50 000 for entering into an unregistered agreement the defendants No. 1 2 and 3 had realised or obtained a receipt from the plaintiff No. 1 their claim for not obtaining the receipt of payment of consideration amount for cordial relation cannot be believed. It is therefore correctly held that it is not probable that payment of Rs.10 00 000 was made to the plaintiff No.1 as consideration amount. 40. It is also not believable that even after payment of Rs.10 00 000 for purpose of transaction the defendants No. 1 2 and 3 had not taken a receipt. There was no payment at all. That is the reason why the witnesses adduced by the defendants No. 1 2 3 and 5 did not state the date time and place and in whose presence such consideration amount was paid. Hence the civil judge has disbelieved the statements of those defendants as regards the payment of consideration money. 41. Having appreciated the submission made by the learned counsel for the parties this court finds that the land as described in Schedule A could not have been transferred without prior permission of the District Collector as every allotment is made by keeping the control over the land. When the Tripura Land Revenue and Land Reforms Rules 1980 replaced the former Tripura Land Revenue and Land Reforms Rules it became mandatory to obtain the prior permission from the District Collector for transfer of any part of the allotted land. But that aspect of the matter has not been asserted by anyone and that being a statutory requirement not obliged is the other reason to believe that the plaintiff No. 1 had any serious intention to sell the suit land. 42. That apart the inference drawn by the civil judge from the analysis of the evidence as recorded in the trial cannot be faulted with inasmuch as there is no proof how the defendants No. 1 to 3 gathered that huge sum of Rs. 10 00 000 and in whose presence the said amount was paid and or on which date and time such payment was made. It has been also observed that when the defendants No. 1 to 3 paid the earnest money to the extent of Rs.50 000 to the plaintiff No.1 they had obtained the receipt. Hence their plea that for cordial relation no receipt was obtained from the plaintiff No. 1 when they paid the consideration money cannot be acctepted. 43. Hence there is no merit in this appeal and accordingly the same stands dismissed. Draw the decree accordingly. Thereafter send down the LCRs. 

Summary: On a transfer of property, all the interests which the transferor has or he was having at that time, capable of passing to, pass on such transfer unless a different intention is expressed or necessarily implied. Further, section 8 and section 54 of the Transfer of Property Act suggests that through execution and registration of a sale deed, the ownership and all interest in property shall pass to the transferee and that would be on terms and conditions embodied in the deed indicating the intention of the parties. The judgement was passed by the High Court of Tripura in the case of Sri Parimal Ghosh &amp; Ors v. Sri Nandalal Ghosh &amp; Ors [RFA 18/2015] by Division Bench consisting of Hon’ble Justice S. Talapatra &amp; Justice S.G. Chattopadhyay. The said suit was instituted for declaration of right, title, interest and cancellation of sale deed, recovery of possession, perpetual injunction and mesne profit under Section 96 of the CPC. Learned counsel for the appellant has submitted that inference, as drawn by the civil judge in respect of payment of consideration money, is grossly unsustainable in view of the fact that those defendants have proved that such payment was made. Thus, “Section 25 of the Indian Contract Act will have no application in the facts as emerged. It has been dis-proved that the claim of payment of consideration money is a hoax.” Learned counsel for the respondent to repel the submission advanced counsel, has stated that the incidence of payment of consideration money to the extent of Rs.10,00,000/- to the defendants has not at all been proved. No prudent person shall believe such a hoax. According to learned counsel, there is no legal evidence to prove the claim of payment of consideration money for transferring the land in schedules B(i), B(ii), B(iii) and B(iv).