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Nitai Chandra Naskar and anr. Vs. Srimati Champaklata Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.104
AppellantNitai Chandra Naskar and anr.
RespondentSrimati Champaklata Debi and ors.
Cases Referred and Kashi Das Gosain v. Chaithru Patras Uraon
Excerpt:
vendor and purchaser - sale--consideration not paid--title, whether passes. - .....if the intention is that title should pass immediately even though the consideration has not been paid, the title passes; that is, the failure to pay the consideration for a conveyance does not defeat the conveyance, except where there is an agreement that it should take effect only if the consideration is first paid: gostho behary ghosh v. rohini gowalini 4 ind. cas. 541 ; 13 c.w.n.692; ponnayya goundan v. muttu goundan 17 m. 146 ; 6 ind. dec. (n.s.) 100; subbaier v. moniam subramania iyer 10 ind. cas. 546 ; 36 m. 8 ; 10 m.l.t. 51 ; (1911) 2 m.w.n. 6 ; 21 m.l.j. 800, manogi singh v. sarat lal mahto 4 c.l.j. 334; sarat chandra naskar v. hari pada mistri 4 c.l.j. 338 and kashi das gosain v. chaithru patras uraon 23 ind. cas. 813 ; 19 c.l.j. 239, when the title has passed to the.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould in a suit for recovery of possession of land. The rival claimants to the property, which admittedly belonged at one time to Dasarath Sardar, were a purchaser from the heir of Dasarath and a purchaser from Dasarath himself. The question in controversy, consequently, is, whether the property formed part of the estate of Dasarath at the time of his death or had vested in the defendant by the conveyance executed by Dasarath on the 16th July 1909. This conveyance was impeached on two grounds: first, that it was obtained by undue influence, and, secondly, that no consideration was paid for it. The plea that it was obtained by undue influence has been negatived and no question of law obviously arises on that part of the case. It has also been found that consideration was not actually paid at the time of the transfer, though the vendor did intend that title should transfer from himself to the purchaser. This is a finding that the transaction was not colourable, but was intended to be genuine and operative. The question thus arises, whether the validity of the intended transfer was affected by the circumstance that the purchaser did not pay to the vendor the consideration named in the deed. The District Judge felt some difficulty in the determination of this point and held that the deed, if not operative as a conveyance, could be upheld as a gift. There is, however, an obvious difficulty in the adoption of that position, because, under Section 123 of the Transfer of Property Act, a deed of gift must be attested by two witnesses. The decision of the Judicial Committee in Ismail Mussajee v. Hafiz Boo 33 C. 773 ; 10 C.W.N. 570 (P.C.) ; 3 A.L.J. 353 ; 3 C.L.J. 484 ; 8 Bom. L.R. 379 ; 16 M.L.J. 166 ; 1 M.L.T. 137 ; 33 I.A. 86 where a deed, in form a conveyance, was treated as a gift, is of no assistance, as the parties there were Mahomedans entitled to the benefit of Section 129 of the Transfer of Property Act. Consequently, the transaction in this case, if operative, must be upheld as a conveyance. Now the appellant has broadly contended that as consideration has not been paid for the conveyance, it is inoperative in law. In our opinion, there is no foundation for this comprehensive proposition. The definition of sale given in Section 54 of the Transfer of Property Act negatives the contention of the appellant: 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. The true test is, what is the intention of the parties to the transaction. If the intention is that title should pass immediately even though the consideration has not been paid, the title passes; that is, the failure to pay the consideration for a conveyance does not defeat the conveyance, except where there is an agreement that it should take effect only if the consideration is first paid: Gostho Behary Ghosh v. Rohini Gowalini 4 Ind. Cas. 541 ; 13 C.W.N.692; Ponnayya Goundan v. Muttu Goundan 17 M. 146 ; 6 Ind. Dec. (N.S.) 100; Subbaier v. Moniam Subramania Iyer 10 Ind. Cas. 546 ; 36 M. 8 ; 10 M.L.T. 51 ; (1911) 2 M.W.N. 6 ; 21 M.L.J. 800, Manogi Singh v. Sarat Lal Mahto 4 C.L.J. 334; Sarat Chandra Naskar v. Hari Pada Mistri 4 C.L.J. 338 and Kashi Das Gosain v. Chaithru Patras Uraon 23 Ind. Cas. 813 ; 19 C.L.J. 239, When the title has passed to the purchaser, the vendor or his representatives may sue for recovery of the purchase-money. Consequently, in the case before us, let us assume that the vendor or his representatives might have been able to exact payment of the consideration money; but that does net invalidate the transfer. The conveyance thus did take effect upon execution and registration, as it was intended that title should vest immediately in the purchaser. In this view, the suit of the plaintiff has been rightly dismissed. The result is that this appeal is dismissed with costs.


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