MD MURTAZA HUSSAIN Vs. ABDUL RAHMAN

JUDGEMENT

(1.) This is an appeal under the Letters Patent by the plaintiffs against the decision of Kay J. upholding the decision of the Court of appeal below reversing the decision of the Court of first instance. The appeal has arisen out of a suit by the plaintiffs to establish their title to property which was the subject-matter of a sale deed executed in their favour by defendants 3 and 4 on 23 January 1941. Subsequently, on 1 September 1941, the same vendors executed another sale deed with respect to the same property in favour of defendants 1 and 2. Ray J. held, on a construction of the document, that it was the intention of the parties to the sale deed in favour of the plaintiffs that the passing of title should depend on the passing of consideration, the receipt of which was acknowledged in the recitals of the deed, but which had not-in fact been paid.

(2.) The learned advocate for the appellants has referred us to a number of cases dealing, with the question whether evidence other than the deed may be looked at for the purpose of ascertaining the intention of the parties. That question, however, does not arise in a case where, on the language of the document itself the intention of the parties is clear. The relevant portions of the document we are dealing with in the present case are as follows: In exchange for the price of Rs. 100 settled as the-consideration for the sale (the vendors) have sold and executed the deed of sale in favour of the vendees after realisation of the entire consideration in cash in one lump sum for payment of miscellaneous debts to other persons.... Nothing remains due now and in their place have made him owner and have put him in possession.... Now the executants, regarding the subject-matter of conveyance or the realisation of the consideration money, have or would have no right to lay any claim or concern whatsoever against the aforesaid vendees. Prom this date the title of the vendee became permanent and perfect. The view taken by Ray J. with which I respectfully agree, is that, on a consideration of the entire document, the intention of the parties was that the passing of title should depend on the passing of consideration. The Courts below have found as a fact that, despite the recital acknowledging the receipt of the consideration money, it was not paid, and the only question that really requires consideration is whether evidence is admissible for the purpose of contradicting the recital. That question has been decided against the appellants by a decision of this Court which the advocate for the appellants himself cited: Radha Mohan Thakur V/s. Bipin Behari Mitra A.I.R.1938 pat. 505. In that case it was held that there is nothing in Section 92, Evidence Act to prevent a person from adducing evidence for the purpose of shewing that a recital in a Heed is untrue. The finding of fact in this case being that the consideration was not paid, and the proper construction of the deed being that the passing of title was dependent on the passing of consideration, the decision of Bay J. was entirely correct. The appeal must, therefore, be dismissed with costs. Meredith J.

(3.) I agree. But I should like to take this opportunity to state my own view. In a case like this, where we have to determine the terms of a contract, the question we have to ask is, what was the intention of the parties? In answering this, we have first to ask ourselves another question; to ascertain the intention, are we confined to the terms of the document itself, or can we look to extraneous evidence?