Umakanta Das And Another v. Pradip Kumar Ray And Others

1. Defendants 1 and 2 are the appellants against a judgment of reversal.

2. Plaintiffs who are the two sons of defendant No. 3 being minors filed the suit through their mother guardian. The suit is one for permanent injunction restraining defendants 1 and 2 from entering upon the disputed land, for a mandatory injunction against them to remove the obstructions and for setting aside the registered sale deed dated 9-4-1965 executed by defendant No. 3 in favour of defendants 1 and 2 which is Ext. 2 in the present case. The disputed land measures an area of Ac. 0.03 decimals pertaining to plot Nos. 49 and 59 under Khata No. 30 of village Haripur. According to the plaint case, the plaintiffs had lot of ancestral properties and there was lot of surplus income out of the said properties. The disputed land was purchased by defendant No. 3 under a registered sale deed dated 29-7-1937 from out of the surplus income of the ancestral property and, therefore, constitutes a part and parcel of the joint family properties of the plaintiffs and defendant No. 3. Defendant No. 3 had no right to transfer the said property in favour of defendants 1 and 2 without consent of the other coperceners. However, defendant No. 3 executed a sale deed (Ext. 2) without having any necessity for the sale in question and without receiving the consideration contained in the said deed. It has been further averred that though defendants 1 and 2 are the vendees under the sale deed (Ext. 2), but they have never obtained possession of the same and the plaintiffs are continuing to possess the same. It is only on 1-2-1972 when defendants 1 and 2 started some construction on portion of the disputed land, the plaintiffs protested and came to know about the sale in question by defendant No. 3 and hence the present suit was filed.

3. Defendants 1 and 2 in their written statement deny the allegations made in the plaint and aver that the property in question is the self-acquired property of defendant No. 3 who was the sole owner in possession thereof and as such was entitled to dispose of the same as he liked. It has also been contended by them that defendant No. 3 agreed to sell that land for a sum of Rs. 555/- and to receive the consideration on the endorsement of the registration ticket and accordingly executed a sale deed on 9-4-1965 and after execution and registration did not accept the consideration money though offered to him on several occasions. But all the same, defendants 1 and 2 got possession of the disputed land and title under the sale passed unto them even though consideration has not been paid. They further aver that the necessity for the sale in question was there since defendant No. 3 had started construction of a house and for that he required some money. Defendants 1 and 2 have also contended that after taking possession of the disputed land they have constructed three-roomed pucca house and are possessing the same from the date of the purchase.

4. On these pleadings, the learned Munsif has framed as many as eight issues and has come to hold that (1) the disputed property is not a part and parcel of the ancestral property of the plaintiffs and defendant No. 3, but is a self-acquired property of defendant No. 3; (ii) from the recitals of the document (Ext. 2) it is difficult to ascertain the true intention of the parties specifically that of the vendor to the effect that title would pass irrespective of passing of consideration; (iii) on consideration of the surrounding circumstances, title of the suit land must be held to have passed unto the vendees on execution and registration of the sale deed and defendants 1 and 2 are in possession of the suit land under the same; (iv) the sale in question is not void and invalid; (v) plaintiffs have no title or possession over the suit land and accordingly plaintiffs have no cause of action to file the present suit on these findings, the learned Munsif has dismissed the suit.

5. On appeal, the learned Subordinate Judge has reversed the findings. The Subordinate Judge has come to hold that the suit property was purchased out of the income of the ancestral property of respondent No. 3 and as such it is his ancestral property. On construction of the document (Ext. 2), he has come to hold that title does not pass irrespective of passing of consideration. There was no necessity for defendant No. 3 to execute the sale deed and, therefore, the sale in question is bad for want of legal necessity and the sale deed (Ext. 2) must be held to be invalid and inoperative. On these findings, the decision of the learned Munsif was reversed and plaintiffs' suit was decreed.

6. Mr. Brahmachari, the learned counsel for the appellants contends that the finding of the lower appellate court that the property acquired by defendant No. 3 in the year 1937 is not the self-acquired property of defendant No. 3 is contrary to law and against the well recognised principles of joint family acquisition and, therefore, cannot be sustained. He further contends that the document (Ext. 2) is clear and unambiguous and the same being legally construed clearly indicates that title passes irrespective of passing of consideration and, therefore, defendants 1 and 2 must be held to be the owner in possession of the disputed property. He also contends that the finding that there was no necessity for sale is also a finding unsupportable in law and, at any rate, the property being the self-acquired property of defendant No. 3, the finding as to the existence of legal necessity is immaterial.

Mr. Nayak, appearing for the plaintiffs-respondents, on the other hand, contends that the findings regarding the nature of property as to whether it is joint family property or self-acquired property; and as to the existence of a necessity for sale are all findings on questions of fact and should not be interfered with in second appeal. On the question of passing of title irrespective of passing of consideration under Ext. 2, he, however, submits that the document is ambiguous and the true intention of the parties cannot be ascertained from the contents of the document and, therefore, surrounding circumstances have to be looked into and if they are looked into, it must be held that title has not passed, as consideration has not been paid. The rival contentions require careful examination.

7. The first question which requires to be examined is whether the finding of the lower appellate court that the property in question was the ancestral property of the family can be sustained or not. The trial court had come to the conclusion that the property was the self-acquired property of defendant No. 3 mainly on the evidence of P.W 3 and D.W 1. The evidence of P.W 3 is categorical to the effect that the said property was purchased out of the money given by the maternal uncle of defendant No. 3. The lower appellate court has disbelieved the evidence of P.W 3. The grounds on which the evidence of P.W 3 has been disbelieved are that since defendant No. 3's family had sufficient joint family nucleus, there was no necessity on the part of his maternal uncle to give money for the purchase in question and secondly, if the maternal uncle desired that defendant No. 3 should have a piece of land at Bhadrak, then he could have donated a land from out of his own kutchery at Bhadrak and, therefore, according to the lower appellate court these two circumstances improbabilise the evidence of P.W 3. In my opinion, the lower appellate court instead of appreciating the evidence on record has entered into the arena of surmise and conjecture for disbelieving the evidence of P.W 3. A court of fact is no doubt competent to disbelieve a witness on appraising his evidence, but not on entering into the realm of conjecture. If the lower appellate court records a finding not on appreciation of the evidence on record but on entering into sphere of surmise and conjecture, then the said finding must be held to be one not on the evidence and, therefore, can be interfered with by the High Court in second appeal. The categorical evidence of P.W 3 with regard to the funds out of which the property in question was purchased by defendant No. 3 in the year 1937 which was duly corroborated by the evidence of D.W 1, cannot be brushed aside by a court of fact merely on hypothetical assumptions. In my view, the conclusion of the lower appellate court on this score must be set aside and the finding of the trial court on this score must be upheld. In other words, the property in question must be held to be the self-acquired property of defendant No. 3.

8. Once it is held that the property is the self-acquired property of defendant No. 3, the question whether the sale under Ext. 2 was for legal necessity or not does not arise for consideration and that consideration was germane only because of the finding that the property was the joint family property, I do not think, therefore, it is necessary to enter into any discussion on that aspect of the case.

9. The only other question which survives for consideration is whether under Ext. 2, the title passes even though the consideration has not passed. It is settled law that if the term in the sale deed is not ambiguous then any external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature. See Ramchandra Biharilal Firm v. Mathuramohan Naik, AIR 1964 Orissa 239 and Gurubari Lenka v. Dulani Thakurani, AIR 1971 Orissa 147. I have examined the document (Ext. 2) at great length and am of the opinion that the terms of the document are clear and unambiguous and, therefore, the intention has to be gathered only from the terms of the said document Under Sec. 54 of the Transfer of Property Act, title passes upon execution and registration of the sale deed and the provisions of Sec. 54 contemplate that there can be a valid sale even for a deferred consideration. The English translation of the material portion of Ext. 2 regarding passing of title and receiving of consideration is as follows:—

“I, the vendor being in possession of the property scheduled below having sold you the said property for a consideration of Rs. 555/- and having agreed to receive the consideration money at the time of endorsement on the registration ticket, am executing this deed to the effect that from today you, the vendees, and your successors-in-interest would enjoy the property as owners in possession thereof and would get your names mutated in the revenue papers.”

The aforesaid terms unequivocally indicates that the title under the deed would pass on the date of execution of the deed and would not depend upon passing of consideration and, therefore, defendants 1 and 2 became the owners-in-possession of the land in question on execution of the sale deed (Ext. 2). The conclusion of the lower appellate court on this score also must be set aside and the finding of the trial court is affirmed.

10. In view of my conclusion that the property acquired in the year 1937 is the self-acquired property of defendant No. 3 and defendants 1 and 2 acquired title over the property under Ext. 2, the plaintiffs' suit must fail and is accordingly dismissed. In the ultimate result, therefore, the judgment and decree of the lower appellate court are set aside and those of the trial court are affirmed. The second appeal is allowed, but in the circumstances, without any order as to costs of this Court.

Appeal allowed.