HARA BEWA Vs. BANCHANIDHI BARIK

JUDGEMENT

(1.) THIS second appeal is by defendants 1, 6 and 7 against the confirming Judgment of Sri I. C. Misra Subordinate Judge of Balasore, arising out of a suit brought by the plaintiffs for declaration of title and for possession in respect of three schedules, of lands described in the plaint. It is the case of both parties that defendant No. 1 Kara Bewa inherited the properties on the death of Her husband Ranka Barik. The plaintiffs base their title on a registered sale -deed (Ext. A) dated 19 -5 -1949, conveying the entire properties for a consideration of Rs. 200/ -. On 8 -7 -1949 she cancelled the document (Ext. A) by a registered cancellation deed (Ext. b) stating therein that the consideration money was not paid by the vendees as agreed. On 19 -9 -1049 she sold these properties by another registered sale -deed (Ext. C) in favour or defendants 6 and 7.

(2.) THE defence is that title had not passed in favour of the plaintiffs on the basis of the earlier document as the intention of the parties to the document was to the effect that title would not, pass unless consideration is paid. It was further urged by defendant No. 1 that the plaintiffs had contracted to pay a sum of Rs. 480/ - as consideration money even though a consideration of Rs. 200/ - was only mentioned in the sale deed in favour of the plaintiffs. Defendants 6 and 7 claim title on the basis of the sale -deed (Ext. C) executed in their favour relying on the position that title had not passed in favour of the plaintiffs on account of non -payment of the consideration money.

(3.) THE lower appellate Court has indeed approached the case from the right point of view that in cases of this nature where the question arises whether title passes on the registration of the document of sale, or that passing of the title depends upon the passing of consideration, the primary criterion is the recitals in the document. It requires no reiteration that only if the recitals in the document are indecisive or ambiguous the sorrounding circumstances in the conduct of the parties would be relevant. The relevant passage from the sale -deed (Ext. A) is as follows as translated: