DHURI SAH Vs. KISHUN PRASAD SAH

JUDGEMENT

(1.) The property in, dispute in the present case is a house bearing municipal holding No. 125 of ward No. 8, within the Municipality of Bhagalpur. Admittedly, at one point of time, this was the property of one Anandi Sah. It is not disputed that on the 14th May, 1957, Anandi Sah and the other members of his joint family executed a deed of sale in respect of that house in favour of the plaintiff, who is appellant here, for a consideration of Rs. 5,000/-. It was admitted therein that out of the total consideration of Rs. 5,000/-, a sum of Rs. 2,430/- was already paid on the 20th April, 1957, by the vendee to the vendors and that the balance of Rs. 2,570/- was to be paid at the time of the admission of the execution before the Registrar. The admission of the execution of the document was however, done by the two batches of the vendors on two dates. The sons of Anandi Sah admitted the execution before the Registrar on the 16th May, 1957, while their father did it on the 18th May, 1957, before the Registrar at his house. It is not denied that though, in accordanee with the stipulation made in the aforesaid deed of sale, the entire balance of the consideration money, viz., Rs. 2,570/-, was to be paid by the vendee at the time of the admission of the execution, but what was actually paid at the time by the vendee was only Rs. 200/-. The claim of the plaintiff is that thereafter on the 19th May, 1957, he paid a further sum of Rs. 2,200/- to Anandi Sah and in proof thereof got a receipt which is Exhibit 4 on the record. The remaining sum of Rs. 170/-, according to him, was left to be paid on the delivery of the registration receipt by the vendors to the vendee. But it is said that subsequently in spite of the attempt made on the part of the plaintiff to tender this amount of Rs. 170/- to the vendors, they did not accept the sum nor delivered to the plaintiff either the registration receipt or possession over the property. Hence the suit for declaration of title and recovery of possession in respect of the aforesaid house as also for mesne profits.

(2.) It appears that Anandi Sah died on the 26th May, 1957. Therefore, the present suit which was instituted on the 22nd January, 1968, was contested by his sons and grandsons alone, namely, defendants 1 to 8, who constitute defendants first party of the present case. The defence put up by these defendants, who alone have contested the suit, was; (1) that the story as set up by the plaintiff about the payment of Rs. 2,200/- to Anandi Sah was false and the receipt (Exhibit 4) was a forged and fabricated document, and (2) that under the terms of the aforesaid deed of sale the tilde in the house was to pass to the plaintiff only after the payment of the entire consideration money and, as the same was not paid, title did not pass to the vendee. Therefore, he was not entitled to any relief, either for declaration of title or for recovery of possession. Now, the general law is that title passes on the execution ana registration of the sale deed though the purchase money may remain wholly or partly unpaid, except where there is an agreement that the sale should take effect only if the consideration is first paid (vide Ramdhari Rai v. Gorakh Rai, AIR 1981 Pat 230). In the present case, therefore, the registration of the aforesaid deed of sale having been completed on, the 18th May, 1957, the title should have ordinarily passed to the plaintiff on that date, unless there was a contract to the contrary. Here, however, there is a controversy raised, as already stated above, by the defendants that under the deed of sale under consideration title was not to pass to the vendee unless the entire consideration money was paid. Therefore, the two Courts below in order to find out as to whether there was any such term stipulated in the contract between the parties have elaborately gone into this question and, on coming to a concurrent finding that there was no such term in the contract, have held that here

(3.) We are thus left with the controversy, so far as the plaintiff is concerned, as to the recovery of possession and mesne profits. It appears that at the time when the aforesaid deed of sale was executed, the house was in the occupation of a monthly tenant, Shyam Bihari Jaiswal, at a rental of Rs. 30/- per month. He was, therefore also impleaded as a defendant in the suit and was arrayed as defendant second party. The Court below has disposed of the question of occupation of the house by him In these words: