1. This Letters Patent appeal under Clause 10 has been filed against the judgment of a Single Judge of this Court, delivered on 15-7-1958. The suit out of which this appeal arises was filed by the respondent Punau against the appellants Sukaloo and Mst. Dukala for recovery of damages for removal of crop from the suit filed for the year 1950-51.
2. It is not disputed that the field in dispute belonged to one Bhikmanga. He married Mst. Sukwaro in churi form. At that time, the respondent Punau was less than a year old and he came to live along with his mother with Bhikmanga, who brought him up as his own son. Bhikmanga died in 1947 leaving behind him his widow Mst. Sukwaro, who died in 1951. Appellant No. 1 Sukaloo is Bhiknianga's father's brother's grandson and appellant No. 2 Mst. Dukala is his wife.
3. The plaintiff's case was that on 8-2-1948 Bhikmanga had executed a sale-deed in respect of the suit land in his favour for Rs. 4000/- and had delivered possession of the same to him. In 1950-51, the defendants forcibly removed the crop which he valued at Rs. 700/-.
4. The defendants denied the sale-deed and pleaded that it was without consideration. They stated that as Mst. Sukwaro was wasting the property, they took possession of the same as reversioners of Bhikmanga in 1951.
5. The trial Court and the appeal Court held that although the sale-deed (Ex. P-2) was executed by Bhikmanga, the consideration of Rs. 4000/-was never paid to him. Accordingly, they held that the respondent (plaintiff) derived no title to the land under the sale-deed. The claim was, therefore, dismissed.
6. The finding of the Courts below that the amount of Rs. 4000/- was not paid under the sale-deed was based on a consideration of the pecuniary circumstances of the plaintiff. It is a finding of fact which was binding in second appeal and was therefore accepted by the learned Single Judge. However, the decision of the Courts below was reversed by the learned Single Judge on two grounds, viz., (i) that although the sale was without consideration, the title in the property had passed to the plaintiff by the execution and the registration of the sale-deed; and (ii) that the sale-deed being without consideration amounted to a gift. Accordingly, the claim for damages was decreed for Rs. 500/- which was the value of the crop as found by the Courts below.
7. The first point which arises in this appeal is whether the sale-deed, being without consideration, passed the title in the property to the plaintiff-respondent. Section 54 of the Transfer of Property Act provides that a sale must be (i) by a registered document if it is worth more than Rs. 100/-; and (ii) there must be a price paid or promised or part-paid and part-promised.
There is little difficulty in holding that title in property can pass by sale even if no consideration is paid provided that the parties intend that it should be paid at some future date. The difficulty arises, in the instant case, on account of the fact that the recital that the whole consideration had been paid before the execution of the deed has been found to be false.
8. The point arose directly for consideration on facts very much similar to the present case in Hemraj Marwari v. Trimbak Kunbi, AIR 1924 Nag 146, Hallifax, A.J.C., deciding that case observed as follows :
'In all the rulings cited as apparently contradictory there was a transfer of ownership made in the prescribed manner which is the first of the two essentials of a sale. But in every case in which there was a promise of payment it is held that the second essential of a sale is present, and the whole definition is satisfied where the promise was subsequently kept or broken. So also in each case in which there was neither payment nor promise, it is held that the second essential is absent and the definition is not satisfied.'
A contrary view was taken by the Patna High Court in Bhonu Lal v. W.A. Vincent, AIR 1922 Pat 619. A distinction was drawn in that case between an ordinary contract and a conveyance. Interpreting section 54 of the Transfer of Property Act it was held that it is not an essential condition for a sale that the purchase money should be paid. The following observations made in that decision are pertinent:
'I cannot do better than quote the weighty observation of Farran, C.J., in Tatia v. Babaji, ILR 22 'Bom 176, 'I am not, however', said the distinguished Chief Justice, 'as at present advised, prepared to assent to the train of thought which puts conveyances of lands in the Mofussil, perfected by possession or registration, where the consideration expressed in the conveyance to have been paid has not in fact been paid, in the same category as contracts void for want of consideration. The radical distinction between a perfected conveyance and a contract does not seem to have been sufficiently borne in mind throughout the judgment'.
In my opinion, the document operated as a conveyance on the date of its execution, unless indeed it could be shown by the vendor that there was a separate oral agreement constituting a condition precedent to the attaching of any obligation under the document. But such a separate oral agreement could be proved only by the vendor or his representative-in-interest.'
In another case, decided by the Patna High Court, Jagdeep Sahay v. Sonu Lal, 52 Ind Cas 363: (AIR 1919 Pat 469), it was decided that
'in a sale of immovable property, title to the property passes to the purchaser on the execution of the deed of sale, unless there is a contract between the parties that title to the property will not pass to the purchaser until the full consideration has been paid; but such a contract must be alleged and proved by the party setting it up.'
The learned Single Judge has referred to Basalingava v. Chinnava, AIR 1932 Bom 247, which contains the following observations :
'There is a distinction between a sale where the consideration is intended to be paid and is not paid, and where the consideration is not in-tended by both parties to be paid at all. In the former case the title would pass to the purchaser and in the latter case though the vendor was tricked into going through the form of execution and registration of the document, the sale deed would be void as a colourable transaction.'
This case was referred to in Chandrashankar v. Abhla Mathur, AIR 1952 Bom 56. After quoting the above observations from Basalingaya's case, AIR 1932 Bom 247, their Lordships examined the facts of that case to see whether the intention of the parties was that title in the property should be passed on the execution of the conveyance without the consideration being fully paid. It was actually found that the recital about the payment of Rs. 699/- as consideration for the sale was false. Still, it was held that as the intention of the par ties was to transfer title, the non-payment of the consideration made no difference and the sale-deed operated from the date of its execution.
9. On a review of the decisions above, we are of the opinion that it is the intention of the parties which has to be looked into to decide whether the sale-deed operated as a transfer of interest from the vendor to the vendee on the date of its execution. If this was the intention, then it does not matter whether the whole of the consideration or part of it remained unpaid. Further, where a registered deed of sale purporting to operate as a conveyance on the face of it exists, the burden of proving that it was not so intended is on the party who asserts this fact.
10. In the instant case, therefore, the burden of proving that the registered sale-deed was not intended to operate as a conveyance and did not transfer the title was on the appellants-defendants. The defendants in their written statement merely denied the sale-deed and asserted that it was without consideration. They never pleaded that the intention of the parties was that the deed was not to operate as a sale-deed or that the title in the property was not to pass until consideration was fully paid.
From the evidence on record, the trial Court concluded that the respondent cultivated the suit field and paid rent for it after the sale-deed. Actually, the Court observed that the respondent continued in possession adversely to Bhikmanga after the execution of the sale-deed (paragraph 30). The lower appellate Court also held that the rent was being paid by the respondent as per entries in the rent-receipt book (Ex. P-3) and that his possession was shown in the khasra (Ex. P-1) from 1948 to 1951-52.
The lower appellate Court did not find the possession of the respondent adverse to Bhikmanga, but held that it was subordinate possession under him. This observation was based on the fact that the respondent used to live with Bhikmanga in the same house. The transfer of possession from the vendor to the vendee can only refer to such transfer of the property sold as can be made under the circumstances of the case. In the instant case, as both the parties were residing jointly, the only way in which the transfer could be made was by change in the village records and by payment of rent being made in the name of the vendee. This was done.
The deed (Ex. P-2) itself recites that possession was transferred on the date of the sale. From its tenor there could be no doubt that the deed wag intended to operate as a conveyance immediately after its execution. Accordingly, we agree with the learned Single Judge that the title in the property passed in this case from the vendor to the vendee immediately on the execution and registration of the sale-deed.
11. The position that a stranger to a deed has no right to dispute the validity of the deed for want of consideration was conceded by both the sides in the arguments before us. It was, however, urged that the appellants being the heirs of Bhikmanga could not be considered as strangers to the deed, as they were vitally affected by its execution. This argument found favour with the learned Single Judge who has held that the appellants represented the rights of the deceased and therefore all the pleas that the deceased would have been entitled to take are available to them. As the plea of want of consideration was open to the vendor, it was also open to the heirs.
On this argument, we agree the appellants stand in the shoes of Bhikmanga and could have challenged the deed for want of consideration. The right of Bhikmanga to challenge the deed for want of consideration arose on the execution of the deed and he could do so only within three years from the date of its execution under Article 91 of the Indian Limitation Act. (See Qasim Beg v. Muhammad Zia Beg, AIR 1915 All 212). The limitation for the purpose started during the lifetime of Bhikmanga and therefore after the expiry of three years there could be no challenge to the validity of the sale-deed.
12. The learned Single Judge has also held that although the sale was without consideration, it operated as a gift-deed. Shri R.K. Pandey for the respondent did not rely on this aspect of the case. We do not, therefore, decide the point.
13. In view of what we have said above, the appeal fails and is dismissed with costs.