RADHAMOHAN THAKUR Vs. BIPIN BEHARI MITRA

JUDGEMENT

(1.) On 24 August 1931 Janaki Nath Banerji sold to Babu Bipin Behari Mitra four annas share of a zamindari for the sum of Rs. 1200. The sale deed was duly registered. Bipin Behari Mitra paid to Janaki Nath Banerji's agent the sum of Rs. 70 in cash with a written promise to pay the balance of Rs. 1130 which represented the amount of a mortgage debt secured on this property due to the plain, tiffs of this suit.

(2.) After the deed had been executed Bipin Behari entered into possession of the property; and the guardian of the two minors among the mortgagees, Srimati Nomamayee Dasi, issued notice upon him to pay the mortgage debt. The mortgage debt was not paid, and subsequently on 11 January 1932 the mortgagees approached the vendor and obtained from him a sale deed purporting to convey this property to them. The mortgagees then instituted a suit against Bipin Behari praying for a declaration that they were the lawful owners of the property with the false allegation that they were in possession and praying for confirmation of possession.

(3.) The plaintiffs alleged that at the time of the conveyance to Bipin Behari it had been agreed that title should not pass until the full consideration was paid and that as Bipin Behari had not paid the full consideration, no title to the property had passed by the conveyance of 24 August 1931. The Munsif decreed the plaintiffs suit, but his decision was reversed in appeal by the Subordinate Judge. The Subordinate Judge has found that the consideration of the sale deed consisted of Rs. 70 to be paid in cash and Rs. 1130 for payment of which a written promise was given and that title and possession passed to Bipin Behari immediately on the registration of the sale deed. The plaintiffs (the subsequent purchasers) have come in second appeal from that decision.