BALDEO SAHU Vs. SM DUKHI KUER

JUDGEMENT

(1.) This is an appeal by the defendants from concurrent findings of the Courts below. The appeal arose out of a suit by the plaintiffs to recover possession of property covered by a sale-deed executed in favour by defendants 1 to 3 on the 28th of November 1943. The recitals stated that the subject-matter of the deed was being conveyed to the vendee for a consideration of Rs. 250/- and that the right, title and interest of the vendor vested in the vendee from the date of the execution of the sale-deed. It was also recited that the consideration money had passed to the vendor, and that the vendee had been put in possession. Nevertheless, on the 14th of January 1946, the vendor purported to cancel this deed on the ground that the consideration money had not been paid by the vendee, and that the latter had not been put in possession. On the following day the vendor executed another deed of sale in favour of defendant No. 4. On a construction of the deed, the Courts below have taken the view that it was the intention of the parties that title should pass to the vendee on the date the deed was executed.

(2.) It is contended that in view of the recitals that consideration had passed and possession had been delivered, it should have been held by the Courts below that the intention of the parties was not that the title should pass on the date the sale-deed was executed but on the date when the consideration was paid. In a number of decisions in this and other Courts it has been held that, al-though normally in the case of a transfer by a registered deed, title passes on registration, yet if the language of the deed shows that it was the intention of the parties that title should pass at some other time, then mere registration does not suffice to pass the title. In all these cases, however, what the intention of the parties was, was regarded as a question of fact. Where it has not been possible to ascertain the intention of the parties from the document itself, and it was not possible either in the three cases cited before me by the defendants, appellant, this Court refused to interfere with the conclusion of the Courts below that it was not the intention of the parties that title should pass on registration but that it should pass on payment of the consideration. Those cases are: 'Raju Mahton v. Hossaini Mian', AIR (7) 1920 Pat 774; 'Abdullah v. Bichuk Gossain', AIR (21) 1934 Pat 68 and 'Pirtam Singh v. Jagannath Sarawgi', AIR (34) 1947 Pat 1. The only case I have come across in which this Court did upset the finding of the Court below with regard to the intention of the parties is L P A No. 33 of 1947. In that case Mukherji, J., sitting singly, reversed the decision of the Court below that it was the in tention of the parties that title should pass only on payment of consideration. Mukherji J. held that the Court of appeal below was not entitled to go outside the terms of the document for the purpose of ascertaining the intention of the parties. He, therefore, reversed the decision of the Subordinate Judge and restored the decision of the Munsiff. In the 'Letters Patent Appeal' it was held that the Subordinate Judge, as a final Court of fact, was entitled to come to a decision with regard to the intention of the parties, and Mukherji, J., in Second Appeal was entitled to interfere with that finding. The result was that the decision of Mukherji, J., was set aside, and the decision of the lower appellate Court was restored. Here too the Courts below have agreed on a construction of the document and the surrounding circumstances that the parties intended title to pass on the date the document was executed.

(3.) The appeal is dismissed with costs.