Barinder Kaur vs Ajit Inder Singh

S.D. Bajaj, J.—In Civil Suit No. 370 filed on 26-9-1981 in the Court of learned Sub Judge 1st Class, Patiala, It was agreed between the parties on 18-5-1982 in terms of the compromise Exhibit P-3, that the Plaintiffs would surrender possession of plots of Surjit Singh, Harinder Kaur, Barinder Kaur and Kuldip Kaur, Defendants, which they had before filing the suit, back to Defendants and as consideration for it Barinder Kaur Defendant would sell her plot to Plaintiffs for Rs. 40,000/-.

It is admitted case of the parties that the Plaintiffs in Civil Suit No. 370 of 1981 as also the Defendants therein did not transfer anything to any one much less to Barinder Kaur. The Plaintiffs in that suit, however, obtained the sale deed of her plot Exhibit P. W. 2/A executed from Barinder Kaur Plaintiff Appellant in favour of Defendant-Respondent. Ajit Singh, the same date viz., on 18-5-1982. It was stated in the sale dead aforesaid that a sum of Rs. 40,000/-(Rupees forty thousand only) would be paid to the vendor by the vendee before the Sub Registrar at the time of Registration of the sale-deed.

On the sale deed Exhibit P. W. 2/A being presented for registration, Sub Registrar desired the purchaser to pay Rs. 40,000/- to the vendor Barinder Kaur Plaintiff Appellant before himself. The vendee admittedly had no money. Sub Registrar refused to register the sale deed and asked the vendee to get its terms duly altered. After deletion of the term regarding payment of sale consideration before the Sub Registrar it was incorporated in the sale deed that the vendor had received the sale consideration at her house before the execution of the document. The alteration in recital, got changed at the instance of the Sub Registrar, was got initialled from the vendor by the Sub Registrar himself in his office room without any money being paid to her in his presence or otherwise In result sale deed Exhibit P. W. 2/A was obviously wholly without consideration.

Plaintiff-Appellant filed Civil Suit No. 39 on 19-2-1983 before the learned Senior Sub Judge, Patiala, for recovery of possession of her plot aforesaid on the ground that the sale vide registered sale deed Exhibit P. W. 2/A was wholly without consideration. Learned trial Court dismissed the suit on the ground that the recital regarding the receipt of sale consideration at home before the execution of the sale deed, having been acknowledged by the vendor, both in the sale deed and before the Sub Registrar, there was no merit in her assertion of the sale deed being without consideration. In Civil Appeal No. 85-T decided on 23-8-1988 the learned lower Appellate Court reversed the findings of the learned trial Court on the point of payment of consideration but instead of decreeing the suit for recovery of the possession of the plot allegedly sold vide Exhibit P. W. 2/A ordered that the Defendant-Respondent would pay to Plaintiff-Appellant the sale consideration of Rs. 40,000/- together with interest at the rate of 12% per annum thereon with effect from the date of the execution on the sale deed viz. 18-5-1982.

Against the impugned judgments dated 22nd May, 1987 and 23rd August, 1988 R.S.A. No. 2721 of 1988 has been filed by Smt. Barinder Kaur while Ajit Inder Singh Defendant-Respondent has also assailed the judgment dated 23rd August, 1988 of the learned lower Appellate Court in his individual R.S.A. No. 2594 of 1988 Both the R.S. As involve common questions of law and facts for determination and have, therefore, been heard and are being decided together.

I have heard Shri Sanjay Majithia, Advocate, with Mr. Sanjiv Manrai, Advocate. for the Appellant and Mr. G.S. Grewal. Sr. Advocate, with Mr. K.S. Sidhu, Advocate, for the Respondent and have gone through the record of civil suit as also the first appeal before the learned lower Appellate Court.

Contents of compromise Exhibit P. 3. when read alongwith the contents of the sale deed Exhibit P. W. 2/A and the deposition of Shri Surrinder Mohan Sharma Tehsildar-cum-Sub Registar, Ludhina, P. W. 2 clarify the factual position regarding complete absence of consideration for the alleged sale, render the sale deed Exhibit P. W. 2/A as ineffectual and imperative on the score and call for the enforcement of right of the Plaintiff-Appellant to be restored to the original position obtaining prior therefore in regard to restoration of position of her plot so as to be quits with other parties to civil suit No. 39 decided on 22.5.1987.

Compromise Exhibit P. 3 reads, "That the Plaintiffs were in possession on the plots of Surjit Singh, Harinder Kaur, Barinder Kaur and Kuldip Kaur Defendants. The Defendants have agreed to transfer the ownership of plot owned by Smt. Barinder Kaur Defendant measuring 583 sq. yards and as a result of it the Plaintiffs have delivered the possession of the respective plots owned by Surjit Singh, Sent Harinder Kaur and Kuldip Kaur Defendants to them. The Plaintiffs have now no connection with the respective plots of Sh. Surjit Singh. Smt. Barinder Kaur and Kuldip Kaur Defendants as they are owners and now in possession of their respective plots. That Smt. Barinder Kaur Defendant will get the sale deed of her plot valued Rs. 40,000/- executed in favour of the Plaintiff today in consideration of the Plaintiffs having relinquished the possession with regard to the plots of Shri Surjit Singh, Harinder Kaur and Kuldip Kaur. The plot of Smt. Barinder Kaur adjoins the plot of Balbir Singh, Qanungo. That Smt. Barinder Kaur has already been compensated by the Defendants with regard to the plot owned by her." It would thus appear that as per terms of the compromise the vendor had already been compensated through transfer of the plot of Surjit Singh, Harinder Kaur and Kuldip Singh in favour of the Defendants and was to transfer her own plot in favour of Plaintiff No. 2 in consideration of the Plaintiffs relinquishing their rights in and title over the three plots of Surjit Singh, Harinder Kaur and Kuldip Kaur aforesaid. Rs. 40.000/- was fixed as value of the plot of Barinder Kaur Plaintiff-Appellant for purposes of its transfer through registered sale deed. This amount was, however, no to be paid by Plaintiff No. 2 (Defendant-Respondent) to Defendant No. 5 (now Plaintiff-Appellant before this Court) either at the time of the execution or at the time of registration of the sale deed because in terms of Clause (6) of compromise Exhibit P. 3 Smt. Barinder Kaur had already been compensated by the Defendants with regard to the plot owned by her. The crux of the matter as asserted by Plaintiff-Appellant and admitted by Defendant-Respondent is that Smt. Barinder Kaur was to be given a plot in lieu of her own agreed to be sold to Defendant-Respondent Ajit Inder Singh out of the plots of Surjit Singh, Harinder Kaur and Kuldip Kaur, possession whereof was allegedly in terms of the recitals of the compromise, relinquished by Plaintiffs in favour of Defendants. Since the transfer in favour of Barinder Kaur did not come about and was never made, there was complete failure of consideration for the transfer made in favour of Defendant-Respondents by her through sale deed Exhibit P. W. 2/A.

Again coming to the sale deed Exhibit P. W. 2/A and the deposition of the Sub Registrar, the original recital of the sale deed was that the sale consideration of Rs. 40,000/- would be paid before the Sub-Registrar. This was admittedly not paid. Even the revised recital regarding payment of consideration at home was got initialled from the vendor Smt. Barinder Kaur in the office room of the Sub Registrar on Sub Registrar''s asking her to do so. The parties did not get back home during that interval and as such the question of Defendant-Respondent making any payment to Plaintiff-Appellant at home as incorporated in the revised recital did not arise. Recital of course, was got changed at the asking of the Sub Registrar and not because any payment had been made by Defendant-Respondent to Plaintiff-Appellant in the meantime. Shri Surrinder Mohan Sharma, Tehsildar-cum Registrar, Ludhiana, P. W. 2 clearly assertes, "On 18.5.1982 I was posted as Sub Registrar at Patiala. On that day sale deed Ex. P. W. 2/A was presented before me. It was registered on that very day by me However, no payment was made before me. I hive seen endorsement Ex. P. W. 2/B and Ex. P. W. 2/C which bear my signature When the sale deed was first presented before me, the writing mark A to A was not there. At first, when the sale deed was presented before me. I asked the party to make the payment in accordance with the deed but the party had no money and then I asked them to get the sale deed corrected and refused to register the same. Thereafter, the party went outside and again came to me with the correction A to A and which I got initialled from the party in my presence and only then I registered the said deed. I do not remember if the Plaintiff also went outside or not when the correction was made. Cross-examination. I had verified from the party about the payment made to her i.e. to Virinder Kaur Plaintiff from Ajit Inder Singh. After that the parties signed the same. I had already returned sale deed to the parties when it was first presented to me. It is incorrect that the sale deed was presented before me only after the correction was already there." It is thus abundantly clear that sale consideration set out in Exhibit P. W. 2/A was also not paid before the Sub Registrar. Plaintiff-Appellant initialled the correction in the recitals of Exhibit P. W. 2/A in the hope that she would be compensated at home out of the plots of Surjit Singh, Harinder Kaur and Kuldip Kaur but admittedly nothing was done to compensate her in this regard. There was thus completely failure of consideration for the alleged sale on this point of time as well.

Learned Counsel for the Defendant-Respondent adverted to the cross-examination of Sub Registrar P. W. 2 and vehemently argued that the Plaintiff-Appellant having admitted the recital of consideration for the sale before him, the burden of proof that the sale was without consideration was upon her and therefore, the learned trial court had rightly dismissed her claim on this score. The argument is of no avail It is the same Sub Registrar who had categorically asserted that the Defendant-Respondent alone went out to have the recitals in the sale deed regarding payment of consideration at home corrected at his instance and the Plaintiff-Appellant appended her signatures to the changed recitals regarding consideration on his asking while sitting inside his office room. The parties admittedly did not get back home and the question of making payment of Rs. 40,000/- by Defendant-Respondent to Plaintiff-Appellant at home before the execution and attestation of the sale deed does not arise.

Ram Singh v. Ganga Ram and Ors. AIR 1922 Lah. 356 (2), Girish Narain Singh and Anr. v. Akhtar Hussain and Ors. AIR 1953 Pat 330, Balabhadra Misra v. Smt. Nirmal Sundari Devi and Ors. AIR 1954 Ori 23, Hira Bewa and Ors. v. Bachanidhi Barik and Ors. AIR 1957 0ri 243, Ram Chandra Bihari Lal Firm v. Mathuramohan Naik and Ors. and Ananda Chandra Pradhan v. Nilaksantha Tripathy and Ors.A.I.R. 1972 Ori 99, are all authorities for the view,"

Therefore, the crucial question for decision is whether on the execution of Exhibit 1 title to the suit lands passed to the Plaintiff, irrespective of the payment of the consideration money. To decide this question the intention with which the parties entered into the sale transactions has to be gathered. The above intention, as is well settled, has to be primarily gathered from the recitals in the sale deed and where the recitals are indecisive or ambiguous the surrounding circumstances and the conduct of the parties may legitimately be looked into. In the sale deed Exhibit 1 it is clearly and specially stated that as money was required for the expenses of the family, the suit land was sold to the vendee for the just consideration of Rs. 200/- received by the vendor 8 days prior to the execution of the sale deed Exhibit 1 in the presence of gentlemen, and possession thereof was delivered to the vendee.

On the recitals in Exhibit 1 it cannot be said that it was intended between the parties that title would pass to the vendee on the execution of the sale deed irrespective of the payment of the consideration money mentioned in the deed. On the contrary the above recitals clearly indicate that prior receipt of the consideration money as specifically mentioned therein, actuated the vendor to execute the sale deed. Exhibit 2. It is also evident therefrom that if the vendor would not have received the consideration money in advance he would not have executed the deed. Therefore, the passing of title to the suit lands was dependent very much on the payment of the consideration money. That therefore being the intention of the parties to the said sale deed, and as both the courts below found that there was no payment of consideration for or delivery of possession under the alleged sale, it cannot at all be said that title to the suit lands passed to the vendee merely on the execution of the sale deed and without payment of the consideration money mentioned therein.

As the above intention of the parties is very clearly gathered from the aforesaid recitals in the deed, the surrounding circumstances and the conduct of the parties need not further be looked into

I, therefore, concur with the finding of both the courts below that the Plaintiff did not acquire any title under Exhibit I. The above contention of Mr. Bos therefore fails.

In this view of the matter looking into the contents of Exhibit P. W. 2/A and the surrounding circumstances aforesaid, it can safely be said that the title of the plot of the Plaintiff-Appellant treasuring 583 square yards set out in the said deed had not yet passed to Defendant-Respondent Ajit Inder Singh Learned trial court thus erred in dismissing her civil suit No. 39 on 22nd May, 1987 and the learned lower Appellate Court in granting her a decree for Rs. 40,000/ with 12% interest from 18-5-1982 till realisation vide judgment dated 23-8-1988. In result R.S.A. Nos. 2594 and 2721 of 1988 are both allowed. Impugned judgments and decrees dated 22-5-1987 and 23-8-1988 are both set aside and civil suit No. 39 filed by Plaintiff-Appellant Barinder Kaur on 19-2-1983 for recovery of possession of the plot in dispute from Defendant-Respondent is decreed with costs throughout.