1. Defendants are the appellants. It appears that D-1, (the husband of D-2) Satyabadi Sahu, Krishna Sahu and Laxman Sahu are four brothers. The family had some lands at, different places including lands in village Chandipadaro. Appellant 2 (D-2) had purchased, some homestead lands with a house thereon at Chatrapur. Satyabadi and his other brothers wanted, to take an interest in that homestead land of D-2, treating it to be a portion of the joint family property, but failed.
It also appears that it was so arranged between the present plaintiff, Krishna Sahu and Satyabadi on the one hand, and the defendants-appellants on the other, that Krishna and Satyabadi would separately take the homestead land and the house of D-2 at Chatrapur in exchange for their lands that would fall to their share in the village Chandipadaro. Accordingly on 27-7-43, D-2 executed sale-deeds one in favour of the present plaintiff and another in favour of Satyabadi with respect to her homestead land and the house thereon situate at Chatrapur. But they, in return, could not execute any such deed in favour of D-2 in respect of their lands at Chandipadaro; but promised to do so after partition of their lands had been finalised. Admittedly the partition deed was effected between the brothers with respect to their joint family property on 18-2-44. Notwithstanding it, they did not execute any sale-deed in favour of D-2 as previously agreed Upon. It is why D-2 cancelled the two sale-deeds executed by her on 27-7-43.
It should be noted here that the dispute between the parties went so far as to culminate in the initiation of 145 proceedings with respect to the disputed land. The Magistrate could not come to any finding as to which party is in possession of the disputed land, and he therefore kept the property under attachment and directed the parties to establish their right in the Civil Court. It is why the respondent filed a suit out of which this appeal has arisen for a declaration of his title to the property on the strength of the sale-deed executed in his favour by D-2 on 27-7-43. A similar suit was also filed by the present appellant against Satyabadi Sahu for a declaration of her title to the other portion of the homestead and for recovery of possession thereof.
2. The case of the plaintiff is that he has purchased the property for a cash consideration of Rs. 500/- and has acquired a good title to it on the execution of the sale-deed by D-2 and has been in possession thereof since his purchase. The claim was contested by both the defendants (appellants) mainly on the ground that in pursuance of an oral agreement for exchange of lands, D-2 executed a deed with respect to her Chatrapur land on the promise of the plaintiff (respondent) to execute similar deed in her favour with respect to her Chandipadaro land after the partition of that land had been finalised. Though the said partition was finalised in February 1944, the plaintiff did not execute any sale-deed in her favour, although asked for many a time. It is why she has cancelled the sale-deed executed in favour of the plaintiff; and the plaintiff has acquired no title to the property on account of his failure to execute a similar deed in her favour with respect to his own land.
3. Both the Courts below have concurrently held that in pursuance of an oral agreement for exchange of land as between the parties, D-2 has executed a sale-deed. Exhibit I in favour of the plaintiff on the promise of the plaintiff to execute a similar deed in favour of D-2 with respect to his Chandipadaro land after the partition among the brothers had been finalised, that the partition was effected in February, 1944, taut the plaintiff did not execute any Kabala in favour of D-2; and that notwithstanding it, the plaintiff has acquired a good title to the property on the execution of the sale-deed, Ext. I by D-2. They have further held that it is open to the defendants to legally enforce the specific performance of the contract for the execution of the sale-deed with respect to the Chandipadaro land. They have, therefore, decreed the plaintiff's suit. Against that decree and judgment of the appellate Court the defendants have preferred this second appeal.
4. As has been stated above, there is a concurrent finding of both the Courts below that in pursuance of an agreement for exchange of land between the parties, D-2 has executed a sale-deed now in question in favour of the plaintiff. This finding was not challenged before me by the respondent. The only question that was canvassed, at the bar is as to whether the plaintiff has acquired any title to the property by virtue of the deed, Ext. I. Exhibit C is a deed of cancellation which D-2 executed on 21-6-44 cancelling thereby the deed, Ext, I. She appears to have done it when she found herself helpless in persuading the plaintiff to execute a similar document in pursuance of the agreement of exchange.
It is contended on behalf of the respondent that the mere execution of the sale-deed with out any specific agreement for the postponement of the passing of the title till after the execution of another document by the plaintiff is itself sufficient to pass valid title in the disputed property to the plaintiff under Ext. I. But on the other hand, it is contended on the side of the appellant that as the transaction is an exchange, but not a sale, the title would not pass to the plaintiff under Ext. I until and unless a similar document is executed by the plaintiff in favour of D-2 with respect to his land at Chandipadaro. In my view, the contention advanced on the side of the appellant is tenable.
The word 'sale' has been defined in the T. P. Act in S. 54 as 'A transfer of ownership in exchange of price paid or promised, or part paid, or part promised.'
It appears from this definition that a 'sale' should always be for a price, but in the case of 'exchange' the transfer of the ownership of one thing is not for any price paid or promised, but for transfer of another thing in return. The word 'exchange' has been defined in Section 118 of the T. P. Act, as:
'When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an 'exchange'.'
If in case a transfer of ownership of an immovable property is exchanged for money, then the 'transaction cannot be an exchange, but a sale. It being so, unless the properties of both parties are simultaneously transferred in favour of each other, the title to the property cannot pass in favour of the one when the other party does not execute any such document in favour of the other. Exchange can be effected either by one document or by different documents. The consideration for the one document executed in pursuance of an agreement for exchange is the execution of a document by the other party. Unless it is so done, the party who has taken the deed from the other party without himself executing any document in favour of that other party, cannot claim to have got a valid title to the property until and unless he executes a similar document transferring his interest in favour of that other party. It being so, the title cannot pass, nor could have passed to the present plaintiff on the mere execution of the sale-deed Ext. I. In the case of an exchange, the intention of parties cannot but be that there should be a reciprocal transfer of two things at the same time and that until such a thing is done, the passing of title under the one document executed in pursuance of the contract, should always be postponed till after the execution of the another document by the other party. In this view of the position of law, I hold that the plaintiff in this case has acquired no title to the property, because, he has failed to act according to the promise even though the partition was finally effected in February, 1944.
5. Learned advocate appearing for the respondent relies upon a decision of the Allahabad High Court reported in -- 'Gopi Ram v. Durjan', AIR 1929 All 63 (A), in support of his contention that under Ext. I the plaintiff has got good title to the property, but the only remedy available to the present appellant is to sue the plaintiff for specific performance of the contract with respect to the Chandipadaro land. But the facts of that case are not similar to the facts of the present 'case, in that case land was exchanged between the parties under one deed of exchange. But in spite of that deed of exchange, the defendant was withholding possession of his land. It is why, the plaintiff in that case brought a suit for recovery of possession' of the land in dispute on the basis of that exchange.
Their Lordship's of the Allahabad High Court while discussing this point has made a distinction between an executed contract and an executory contract and held that specific performance of a contract is available only in the case of an executory agreement, but not in the case of an executed contract. He has further observed in that case to the effect that when the exchange-deed was finally executed, the contract is not available to the parties in that suit. It being so, that authority is not of any avail to the respondent. It is further urged on the side of the respondent that when there was a mutual exchange of possession the defendants cannot avail the plea that passing of the title in favour of the plaintiff to the disputed property has been postponed till after the execution of a similar Kabala by the plaintiff. But the transaction of exchange cannot be completed till after the execution in the present case of deeds j'by both parties in favour of each other. When I one of the parties has failed to execute the deed in pursuance of the agreement, the mere fact of exchange of possession cannot be sufficient to complete the passing of title in favour of each other, especially when properties to be exchanged are each worth more than Rs. 100/-. It being so, this contention is not sustainable.
6. But the case filed by the present defendants against Satyabadi Sahu ultimately came up before this Court in -- 'Second Appeal No. 309 of 1948 (Orissa) (B)'. In that case a similar question arose as to whether Satyabadi has acquired any title by the deed executed by the present appellant in his favour without Satyabadi executing a similar document in favour of D-2 with respect to the Chandipadaro land. A Division Bench of this Court in the unreported case have held that when it was an exchange, the title to the two items of the property on each side would pass to the other simultaneously on execution of the necessary document or documents, and that 'it is impossible to say that the title passes until the entire transaction is fully completed.' Both these cases are of same nature. The view taken by the Division Bench of this Court is in consonance with the view which I have taken in this case on a consideration of the distinction between 'exchange' and sale.
7. In the result, I would differ from the courts below in this that the plaintiff-respondent has not acquired any title to the property merely on the execution of the sale-deed Ext. I in his favour by D-2. As the plaintiff has not carried out his part of the contract and as there has been no reciprocal transfer of the property as contemplated within the definition of 'exchange', I would hold that the plaintiff-respondent has acquired no title to the property under Ext. I.
8. I would, therefore, set aside the judgment and decree of the Courts below and dismiss the plaintiff's suit with costs. The appeal is allowed with costs.