SHIVA NARAYAN SAH Vs. BAIDYA NATH PRASAD TIWARY

JUDGEMENT

(1.) This Second Appeal by the defendants is directed against the concurrent judgment of the courts below decreeing the suit of the plaintiffs. The suit was for a declaration that the original plaintiff whose heirs are respondents before this Court acquired valid title to Schedule 1 property by a registered sale deed dated 18th March. 1960 and was entitled to the custody of the registration receipt of the said deed on payment of Rs. 765/- in favour of defendants first party and Rs. 1300/- in favour of defendants second party. The original plaintiff also sought a direction that defendants second and third parties be ordered to deposit the deed of mortgage by conditional sale and the registration receipt in token of payment of Rs. 1300/- in court and to give up possession of the disputed property in her favour.

(2.) The admitted facts are that on 3rd December. 1956 defendant No. 1 executed a deed for Rs. 1300/- in favour of defendant No. 2 in respect of the disputed property. According to this deed the property was to go back to defendant No. 1 on payment of the amount aforesaid if paid before 13th Baisakh. 1371 Fs (corresponding to 9th May. 1964). If the amount was not paid by that date the property was to become absolute pro-perty of defendant No. 2. On 18th of March. 1960 defendant No. 1 sold the disputed property to the plaintiff under a registered sale deed (Exhibit 5/a) for a consideration of Rs. 3500/-. Out of this Rs. 1200/- was paid in cash, Rs. 1535/-was left in deposit for payment to different creditors including defendant No. 2 or defendant No. 1 and the remaining amount of Rs. 765/- was to be paid at the time of exchange of equivalents. On 18th of April. 1960 defendant No. 1 by a registered deed cancelled the aforesaid sale deed. On 23rd of April. 1960 he executed another registered sale deed in favour of defendant No. 3. The consideration of this sale deed was also Rupees 3500/-. It may be stated here that defendant No. 3 is the step-mother of defendant No. 2.

(3.) The main question which arises for decision in the appeal is whether title had passed to the plaintiff before the execution of the sale deed by defendant No. 1 in favour of defendant No. 3 on 23rd of April. 1960. According to the case of the plaintiff, title passed to her with the execution and registration of the sale deed. According to the case of the appellants, title could pass only on payment of full consideration at the time of exchange of equivalents and as full consideration was not paid before the date of cancellation deed or execution of the sale deed in favour of defendant No. 3. the plaintiff could not acquire any title in the property by virtue of Exhibit 5/a. The case of defendant No. 2 further was that the deed dated 3rd December, 1956 was not a deed of mortgage by conditional sale but it was a deed of sale with condition of re-purchase and. therefore, the deed could not be redeemed. It may be stated here that the case of the plaintiff further was that much before the date of cancellation, she had tendered Rs. 765/- to defendant No. 1 and Rs. 1300/- to defendant No. 2 and they had refused to accept the amount.