Ghose and Stevens, JJ.
1. This appeal arises out of a suit in which the plaintiff, who is the appellant before us, sought for a declaration that a deed of sale executed and registered by her in favour of the defendant was void and ineffectual. The plaintiff's case seems to have been that the defendant, after the execution of the deed of sale in question, desired that it should be registered, and promised that he would forthwith pay the consideration-money, and accordingly the plaintiff presented the deed for registration and bad it registered, and called upon the defendant to pay the consideration-money. The defendant, however, promised to pay it in a short time, but subsequently declined to make the payment. Thereupon the plaintiff was obliged to issue a notice upon him either to pay the consideration-money or to treat the transaction as cancelled, but the defendant refused to receive the notice.
2. The case of the other side was that the whole of the consideration-money, with the exception of a small amount, was paid to the plaintiff, and that this was a completed transaction.
3. The Court of First Instance, upon a consideration of the evidence in this case, held that the defendant did not pay any part of the consideration-money, and in the course of the judgment that it delivered brought to light certain facts which indicated that the parties did not consider the transaction as a completed transaction, notwithstanding the registration of the deed. The Munsif accordingly decreed the plaintiff's suit.
4. We might here mention that notwithstanding the registration of the document in question, it remained in the hands of the plaintiff, and it was not delivered over to the defendants.
5. The Subordinate Judge, in appeal, has reversed the judgment of the Munsif upon certain grounds which we are not quite able to follow, and he has done so without deciding the question whether any consideration passed from the defendant to the plaintiff. In one portion of his judgment he says. But there was no evidence in this case beyond the interested statement of the plaintiff's brother, to prove the alleged promise of paying the consideration after registration.' That is the only passage in which any reference is made to the question of the payment of the consideration-money. He then says that the plaintiff has misconceived his [her?] remedy, and that he [she?] should have brought a suit not for cancellation of the document but for recovery of the consideration-money; and he refers to Section 54 of the Transfer of Property Act as showing that the transaction was completed so soon as registration was had.
6. It seems to us that the Subordinate Judge is in error in holding that the mere registration of the document made the transaction a completed transaction. No doubt under Section 54 of the Transfer of Property Act the sale of an immoveable property of the value of one hundred rupees and upwards can only be made by a registered instrument, but it does not follow from this that the moment the instrument is registered it should be taken as conclusive that the title has passed. In the case of Sheo Narain Singh v. Darbari Mahton (1897) 2 C.W.N., 207, where the vendor by reason of non-payment by the vendee of the consideration-money, transferred the property to a third party, and that third party brought a suit to recover possession of the property upon the strength of his purchase against the first vendee, a Divisional Bench of this Court, upon a question similar to that raised before us in this case, made the following observations: 'It was argued before us that, having regard to the provisions of Section 54 of the Transfer of Property Act, the mere registration of the deed of sale conveyed the property. We are not prepared to go to that length. It is true that the Act prevents the property from passing, except the deed be registered, but it does not follow from that, that the mere registration of the deed necessarily passes the property. There might be circumstances that would show that it was not intended that the transfer should have any immediate operation, although the deed had been registered. Registration is required to be made within a certain period after execution, and apart from the section of the Transfer of Property Act, it is not a formality which creates any rights, although it affects the admissibility in evidence of the document. The question as to whether the consideration was paid has a most material bearing on the consideration of the question, whether it was intended that the transfer to the defendant No. 1 should be then and there an operative transfer, or whether it was intended that something further should be done before any effect should be given to it.'
7. We entirely agree in these observations. We think that the registration of a deed does not necessarily make the transaction between the parties concerned complete. We are further of opinion that it was absolutely necessary for the purpose of determining the question of the intention between the parties (for in a case like this the all-important question is one of intention) to decide whether consideration actually passed, and what was the understanding between the parties as to the payment thereof. No doubt, in the passage to which we have already referred, the Subordinate Judge says that he does not accept the evidence on the part of the plaintiff that the defendant promised to pay the consideration after registration; but we are not prepared to say that is really conclusive of the question which the Subordinate Judge had to, try. He had to consider whether the consideration really passed, as the defendant alleged, and what was the intention of the parties in the matter of the completion of the sale transaction in question; whether it was intended that the title should pass only upon the consideration being paid by the defendant, or upon the mere registration of the instrument in question.
8. We think that the judgment of the Subordinate Judge, as it stands, cannot be supported. We, therefore, set it aside, and send the case back to him for retrial with reference to the observations which we have made. Costs to abide the result.
9. This judgment governs the analogous appeal No. 2181 of 1897.