G.B. Patnaik, J.
1. Plaintiff is the appellant against the reversing judgment and decree of the District Judge, Puri, in Title Appeal No. 50 of 1975 wherein the judgment and decree of the Subordinate Judge, Puri, in O. S. No. 70 of 1972 have been reversed.
2. The suit land measuring 1.84 acres appertaining to Khate No. 45, plot No. 253 with an area of 0,96 decimals in village Sadangi and Khata No. 46, plot No. 685, area 0.34 decimals and Khata No. 46, plot No. 688, area 0.54 in village Kantimal, was the property of Jayakrushna, father of defendant 9. According to the plaint case Jayakrushna sold the properly to one Chintamoni and Chintamoni in his turn re-conveyed the land in favour of defendant 9 and thus defendant 9 became the sole owner in possession of the suit land. On 12-8-1960, defendant 9 sold the properly to the plaintiff for Rs. 500/- and as the plaintiff was a minor, her mother was looking after the properly. Plaintiff got married in 1963, whereafter her husband took over management of the suit property, but the sale deed which was with her mother was taken away by defendant 9. Defendant 9 then sold the property to defendants 1 to 7 who, on the basis of their purchase, threatened to dispossess the plaintiff. A proceeding under Section 145, Criminal P. C., was initiated between the plaintiff and defendants 1 to 8 which terminated in favour of them by order dated 20th of June, 1972. Hence, the plaintiff filed the present suit for declaration of her title and recovery of possession in respect of the suit property. The sale deed dated 12-8-1960 in favour of the plaintiff is Ext. 1. The three sale deeds executed by defendant 9 are Ext, A dated 1-5-1968 in favour of defendants 3 to 7, Ext. B dated 27-11-1962 and Ext. C dated 9-2-1968 both in favour of defendant 1.
3. Out of the defendants, defendant 2 filed a written statement admitting the plaintiff's case and plaintiff's title and possession over the suit property. Defendants 1 and 3 to 7 contested the suit, while defendants 6 and 9 remained ex parte. According to the contesting defendants, the alleged sale deed dated 12-8-1960 in favour of the plaintiff under Ext. 1 is a sham, collusive and fraudulent transaction not backed by any consideration not was it given effect to and, therefore, does not convey any title in favour of the plaintiff. It was further asserted that neither the plaintiff not her mother had ever taken possession of the suit property and the said sale deed (Exhibit 1) had been executed by way of security just to satisfy the bridegroom when the plaintiff was given in marriage. Defendant 9, the owner of the property, having conveyed valid title in favour of the contesting defendants under the three sale deeds (Exts. A, B and C) they are the rightful owners in possession of the same.
4. On the pleadings of the parties, the learned Subordinate Judge framed as many as seven issues and on consideration of the materials on record came to hold that since defendant 9 and plaintiff were living together in the same house, possession of the suit land would not be a material factor for determination of the points involved in the suit. He disbelieved the evidence of P. W. 1 and held that plaintiff and her mother had no ostensible means for raising the consideration price of Rs, 500/- to make the acquisition under Ext. 1. He further held that it would be hard to conclude that defendant 9 had created the document at the instance of the plaintiff's parent-in-law and the sale transaction with the plaintiff was backed by consideration, which according to him, most probably was love and affection of defendant 9 towards the plaintiff. His ultimate conclusion, therefore, was that the sale deed executed by defendant 9 in favour of the plaintiff was not sham but a genuine one and, therefore, plaintiff had acquired right, title and interest over the property. Since Ext. 1 was found to be valid and backed by consideration, defendant 9 had no further interest to dispose of the self-same property under Exts. A, B and C and, therefore, defendants 1 and 3 to 7 were no better than trespassers. Accordingly, the suit was decreed and recovery of possession was ordered.
5. On appeal, the learned District Judge posed two questions, first, whether the consideration amount under the sale deed (Ext. 1) had passed and secondly, whether the plaintiff had acquired title in the suit land within twelve years prior to the suit. He recorded a finding that neither the plaintiff nor her mother was able to pay the consideration under the sale deed (Exhibit 1). On a consideration of the oral evidence of P. W. 1, the maternal uncle of the plaintiff. At the same time, he came to the conclusion that defendant 9 being in charge of the marriage of the plaintiff might have executed the sale deed as a measure of security when the bridegroom had demanded dowry. According to the learned Appellate Judge, the fact that Ext. 1 was in the custody of defendant 9 strengthens his aforesaid conclusion. The learned Appellate Judge also observed that it was hard to believe that actually defendant 9 had given delivery of possession of the suit hind to the plaintiff through her mother and on toe evidence of D. Ws. 3, 5 and 6 came to hold that defendant 9 was in possession of the suit land. He further found that since the plaintiff failed to prove passing of consideration under Exhibit 1 as well as possession, she had failed to discharge the onus of proving title and accordingly, the plaintiff's suit must fail. On these findings, the judgment and decree of the learned trial Court were set aside and the plaintiff's suit was dismissed.
6. In this second appeal, the learned counsel for the appellant, has raised the following contentions:--
(a) In view of the admission of defendant 2 in her written statement, the plaintiff's suit with respect to 0.11 decimals of land which is under possession of defendant 2 could not have been dismissed and non-consideration of the said admission of defendant 2 vitiates the entire judgment;
(b) Passing of consideration is not a condition precedent for passing of title under Ext. 1 and title passes under Ext. 1 even if consideration had not passed;
(c) The finding of the appellate Court regarding passing of consideration is also erroneous; and
(d) The appellate Court misplaced the onus of proving that the transaction (Exhibit 1) is valid, on the plaintiff, in the context of allegation by the defendants of shameness of the transaction and such misplacement of onus has vitiated the entire judgment.
The learned counsel for the respondents, on the other hand, has contended that the finding as to consideration being one of fact cannot be disturbed in second appeal and under Ext. 1 title passes only on passing of consideration. Therefore, consideration not having passed, no title passes in favour of the plaintiff. The learned counsel has also urged that this point has not been raised in any Court below nor even in the grounds of appeal and hence the appellant should not be permitted to raise the same ground. So far as the question of non-consideration of admission of defendant 2 is concerned, the learned counsel has submitted that plaintiffs case depends on the validity of Ext. 1 and if Ext. 1 is found to be invalid then the so-called admission of defendant 2 will not confer any title on the plaintiff even with respect to the land said to have been in possession of defendant 2.
7. The finding that neither the plaintiff nor her mother was able to pay the consideration under Ext. 1 is a pure question of fact and the said finding teas been based on discussion of the evidence on record and, therefore, it would not be proper to disturb the said finding of fact in this second appeal. The submission of the learned counsel for the appellant that in view of the so-called admission of defendant 1, the entire suit could not have been dismissed, is also without any force, since, as has been tightly pointed out by the learned counsel for the respondents that plaintiffs title is based upon Ext. 1 and if it is found that Ext. 1 did not convey any title, then the so-called admission of defendant 2 will certainly not confer any title on the plaintiff. In this view of the mutter, even if the appellate Court has not discussed the so-called admission of defendant 2, yet, the appellate judgment cannot be said to be vitiated on that score. I would, therefore, reject the said submission made on behalf of the learned counsel for the appellant.
8. The next and most important question which remains, therefore, to be considered is whether title passes irrespective of the fact whether consideration has passed or not under Ext. 1. It is true that the appellant has not urged this point in any of the Courts below, but since this is a pure question of law to be decided on a reading of the document (Ext. 1) itself, I permit the same to be urged in the second appeal.
9. Counsel for both sides placed before me a large number of authorities on the point and I shall refer to some of them only. The law on the subject has been well discussed in a Bench decision of this Court in the case of Hara Bewa v. Banchanidhi Bank, AIR 1957 Ori 243. It has been held in the said decision that where a question arises whether title passes on the registration of the document of sale or whether passing of title depends upon passing of consideration, the primary criterion is the recitals in the document. If the recitals in the document are indecisive or ambiguous in which case the document is characterised as an involved one, the surrounding circumstances and the conduct of parties would be relevant to gather, the true intention of the parties and in such a case, it would be open to lead evidence in that regard.
A learned single Judge of this Court in the case of Michhu Kuanr v. Raghu Jena, AIR 1961 Ori 19, referring to an earlier decision of the Court in the case of Balabhandra Misra v. Smt. Nirmala Sundari Devi, AIR 1954 Orissa 21, held that if there was a clear conveyance that the executant conveyed title in favour of the vendee from the date of execution of the document and the recital regarding consideration came later independent of the clause regarding title, then it was clear, that title passed independent of the question of consideration.
In the case of Nrusinghanath Deb v. Banmali Panda, AIR 1970 Orissa 218 (219), another learned Judge of this Court construing a conveyance held that the intention seemed to be unequivocal of making a conveyance of the title in presenti and not dependent upon passing of the consideration. In that particular, case, the document itself narrated that the consideration was to be received subsequently at the time of endorsing the registration ticket.
Keeping the aforesaid principles in view, let me now examine the. document Ext. 1 itself. The relevant portions of the said document having been translated by me into English read as follows :--
'Having sold the land for a consideration of Rs. 500/- to you, having received the same consideration amount in the presence of the witnesses to this deed, and having divested of all rights from the properties put you in possession of the same as owner thereof and stipulate that you with your lineal descendants will enjoy the property getting yourself mutated in the appropriate zamindari sherista and will obtain necessary rent receipts after paying the revenue therefor.'
I have myself gone through the original document carefully and find that the recitals are not clearly decisive. There is no clear conveyance that the executant conveys title in favour of the vendee from the date of execution of the document and the recital regarding consideration does not come later as an independent clause. The sentence is rather involved and the terms regarding passing of consideration and the vendee being owner in respect of the property are intermingled. The recitals of Ext. 1 are almost similar to the recitals of the document which was being considered in Hara Bewa's case (AIR 1957 Orissa 243) and, therefore, the ratio of that case applies in full force. If one looks at the surrounding circumstances, one finds that the custody of the document was with defendant 9 which is undoubtedly a strong piece of circumstances to throw light as to the intention of the parties. It further, appears as per the finding of the Courts below that possession of the land not being delivered which is also equally another strong piece of evidence to indicate the intention of the parties. Thus, the conclusion is inescapable that it was not the intention of the parties that title would pass under ' Ext. 1 immediately on the execution of the document Rather it is dependent upon passing of consideration. Since the finding of the lower appellate Court is that no consideration had passed, it must be held that the plaintiff has failed to prove her title pursuant to Ext. 1. Thus, this contention raised on behalf of the appellant also fails.
10. In the result, the appellate judgment and decree of the learned District Judge are affirmed and the second appeal is dismissed, but in the facts and circumstances of the case, there would be no order for costs of this Court.