1. In this case the plaintiffs, who are sons of Bhubaneswar Roy Chowdhury, sued to recover possession of certain immoveable properties on the strength of a conveyance, dated 18th April 1897, executed by Purna Chander Chatterji in favour of Behari Lal Mitter--the benatnidar of the plaintiffs' father. Plaintiffs' case was that the Roy Chowdhury defendants, in collusion with their agent Purna Chander Chatterji, who was father of defendants Nos. 1 and 2, created two fictitious nimosat howlas and thus interfered with Bhubaneswar Roy Chowdhury's right in the lands in question. Bhubaneswar Roy Chowdhury brought a suit, No. 597 of 1896, in the Subordinate Judge's Court against Purna Chander Chatterji and the Roy Chowdhury defendants to recover possession in howla right and to have the fictitious nimosat howlas cancelled. That suit was settled through the intervention of Rakhal Das Bidyabhusan, the guru thakur of both the parties. The conveyance in favour of Bebari Lal Mitter as benamidar for Bhubanes-war Roy Chowdhury was executed by Purna Chander Chatterji. By that conveyance an 8-anna share in the two nimosat houlas, which were for the purposes of that settlement taken as genuine, was conveyed to Behari Lal Mitter. The consideration named in the deed was the withdrawal of Suit No. 597 of 1896 and the payment in cash of Rs. 1,500. That conveyance was duly executed and registered and the suit was withdrawn. It appears that for some days after the execution and registration the deed remained with Rakhal Das Bidyabhusan and then came into the hands of the plaintiffs' father. The contention of the defendants is and has always been that the Rs. 1,500 was not in fact paid. In Suit No. 482 of 1900 which came up to this Court on second appeal (No. 1038 of 1901), Behari Lal Mitter was the plaintiff and Bhubaneswar Roy Chowdhury a pro forma defendant. In that suit, which was a suit for rent, the contention of Bhubaneswar Roy Chowdhury was that the Rs. 1,500 was actually paid. That contention was found to be false. In the present case, the allegations of the plaintiffs in paragraph 3 of the plaint are that the consideration for the kobala was only the withdrawal of Suit No. 597 of 1896, that there was no stipulation for the payment of any money consideration and that no such consideration in fact passed. It is alleged that the sum of Rs. 1,500 was really the value of the said suit and was mentioned under the wrong impression that it was necessary to state some money consideration in a deed of sale. Defendants in their written statement deny the payment of the Rs. 1,500; and with regard to the deposit of the deed with Rakhal Das, state that it was agreed at the date of the kobala that the kobala would be kept with Rakhal Das and that after the payment of the Rs. 1,500 Rakhal Das was to deliver the kobala to Bhubaneswar Roy Chowdhury. In paragraph 19 they further state that, on the ground that the kobala would remain in deposit until the receipt of the consideration, the name of the guru thakur was mentioned as the costodian in the ticket for the taking back of the kobala, that he took back the kobala from the registry office and that the plaintiffs' father Bhubaneswar Roy Chowdury subsequently, by improper means, induced the guru thakur to hand over the document to him. The questions of fact with regard to- the payment of the Rs. 1,500 have been found against the plaintiffs; and the learned District Judge, on appeal, has declined to give the plaintiffs the relief that they claimed, on the ground that it would be inequitable to do so. Plaintiffs in this second appeal ask us to pass an order similar to that which was passed in the case of Nil Madhab Parhi v. Haran Prosad Parhi 20 Ind. Cas. 326 : 19 C.L.J. 146 : 17 C.W.N. 1161 offering to pay the Rs. 1,500 and all costs of this litigation. The only question before us is whether they should be allowed to do that.
2. No question of limitation arises in the suit, as the conveyance was in 1897 and this suit was instituted on 28th August 1907. It is unnecessary, therefore, to consider the allegation of the plaintiffs that they had been in possession and were dispossessed in 1899.
3. It has been argued before us for the defendants that it was really the intention of the parties that the ownership in the property should not pass until the Rs. 1,500 was paid. That is the sole point which has been made to meet the demand of the plaintiffs for possession under the deed of sale. It is now well settled that the mere registration of a document, especially if it be not accompanied by delivery, does not necessarily indicate the transfer of the property to the vendee. It may be the intention of the parties that the ownership should not pass until the consideration is paid. If, however, that is the contention of the vendor, the burden of proving it would lie uponhim. Ordinarily speaking, if a document be executed and registered in favour of any person and that person also gets the document, the mere fact of non-payment of the consideration would not affect the passing of the property. We may refer to the cases of Mauladan v. Rughunandan Pershad Singh 27 C. 7 and Gostho Behary Ghosh v. Rohini Gowalini 4 Ind. Cas. 541 : 13 C.W.N. 692. In the present case the learned District Judge makes the following remark: 'I also think that from the circumstances of the case it was the intention of the defendants that title should not pass until the money was paid, and this would be a legitimate inference from the deed of sale itself.' It is conceded that there was no evidence given at the trial of any such intention; nor is there anything in the deed itself to indicate such an intention on the part of the vendor or the vendee. On the contrary, the deed says: 'The right and interest of me and my representatives in the 8-anna share sold is extinguished from this date and the same has devolved on you. Neither I nor any of my heirs and representatives shall ever be competent to claim either in our own names or in benami of others any of the subordinate tenures of the said share.' Nor, indeed, was this the case of the defendants as made in their written statement. We have set out above what they said with regard to the deposit of the document; and it is clear from the allegations in paragraphs 18 and 19 of the written statement that their case was that the document had been deposited with Rakhal Das Bidyabhusan in order to secure the payment of the Rs. 1,500 and for no other purpose. No issue was raised on this point nor any evidence led in respect of it. The remark, therefore, of the learned District Judge to which we have referred cannot be supported. It appears moreover to be somewhat inconsistent with the subsequent remark which he makes: 'it would seem that the ownership of the land in dispute was transferred to the plaintiffs and they are consequently entitled to pray for delivery of possession subject to any equities which may exist in favour of the defendants.'
4. There is a further point in this case which is in favour of the view that the property passed to the plaintiffs at the date of the deed of sale, and that is that the Rs. 1,500 was only part of the consideration and that the withdrawal of the suit, which was valued as about the same sum, represents about half of the consideration for the document. This being so, there appears to be no reason why the plaintiffs should not be allowed the relief which they ask for upon appropriate terms. The learned Counsel for the plaintiffs has not sought to minimize the impropriety of their conduct and that of their father in making false and contradictory statements about the Rs. 1,500. In the former suit they pleaded falsely that it had been paid. In the present suit, instead of bringing the amount into Court and asking for relief upon that basis, they maintained again falsely that the Rs. 1,500 formed no part of the consideration for the deed of sale. It is obvious, therefore, that the plaintiffs cannot be allowed a decree for possession except on the most stringent terms which will save the defendants from all loss.
5. We think that an order similar to the one passed in the case of Nil Hadhab Parhi v. Haran Prosad Parhi 20 Ind. Cas. 326 : 19 C.L.J. 146 : 17 C.W.N. 1161 will he the proper order to pass in this case. We accordingly pass a conditional decree in favour of the plaintiffs on the following terms: On the plaintiffs depositing in this Court Rs. 1,500 together with the costs of the contesting defendants in all the Courts (to be specified in the decree) within one month from the date on which the decree of this Court is actually signed, a decree will be drawn up in favour of the plaintiffs for recovery of possession of the lands in suit. No order for mesne profits can, of course, be made in their favour. Their Counsel expressly stated that the plaintiffs would make claim in that respect. If the Rs. 1,500 and the costs be not so paid, the decree will be that the appeal do stand dismissed with costs.