Oldfield, J.:— I agree to the remand for findings proposed in the judgment which my learned brother is about to deliver and reserve discussion of the case until their receipt.
Tyabji, J.:— The plaintiff prayed for (1) a declaration that a sale-deed (Exhibit I, dated 1st June, 1909 and purporting to convey the house and lands referred to in the schedule to the plaint) is nominal and that neither the 1st defendant nor any other defendants acquired any right thereby, (2) for cancellation and delivery of the said deed to the plaintiff, (3) for possession of the said lands of which the defendants or some of them had (according to the plaintiff) unlawfully taken possession in July 1910, (4) for mesne profits and (5) costs. The sale-deed was purported to be executed for 8th items of consideration, making up altogether Rs. 2,000. The District Munsif held that no part of the consideration was received by the plaintiff prior to the suit (paragraphs 6-16 of his judgment). He found, however, that a year after the institution of the suit, the 1st defendant discharged a debt of Rs. 100 payable by the plaintiff: the agreement to discharge this debt was the 7th item of consideration in the deed.
2. The District Munsif then proceeded to consider the effect of the finding that there was “an absence or non-payment” of consideration. For this purpose he first referred to the report in the Madras Law Journal of Amirthammal v. Ponnusawmi Pillai(1) and Amirthammal v. Periasami Pillai(2), the judgment in the Letters Patent Appeal which does not seem to have been brought to his notice. Next (in paragraph 19 of his judgment) he considered the effect of the averments in the plaint, which he held to be tantamount to an averment on the part of the plaintiff of an understanding between the parties that the transaction was not to be given effect to at once, but was brought about to meet the contingency of plaintiff's sudden death and to take effect only after her death.
3. This being the state of the pleadings according to the District Munsif, he referred to the evidence and stated his conclusion in paragraphs 21 and 22 of his judgment.
4. In the result he gave a decree declaring that the sale-deed, Exhibit I, is a nominal one during the life-time of the plaintiff and that it cannot confer any title on defendants so long as plaintiff is alive, and directing recovery by plaintiff of possession, from defendants, of the plaint B schedule property.”
5. Both parties appealed to the District Court, the plaintiff in order to obtain the unrestricted declarations for reliefs prayed for and the defendants to have the suit dismissed altogether.
6. In appeal the plaintiff succeeded completely.
7. The plaintiff's grounds of appeal to the lower Appellate Court are not before us. The defendants' grounds of appeal raised the contention
(1) that it should have been held that title was intended to pass to the defendants by the sale-deed (ground 1);
(2) that full or at least partial consideration had been paid (grounds 2, 3 and 4);
(3) that as part of the consideration had been paid by the defendants, the only remedy of the plaintiff was to sue for the balance (ground 15);
(4) that the District Munsif made out a new case for the plaintiff (referring no doubt to the finding on the 1st issue) (grounds 9 and 11); the rest of the defendants' grounds of appeal to the lower Appellate Court are either merely argumentative or not relevant to the questions before us.
8. The learned District Judge accepted the District Munsif's conclusion that the recitals in the sale-deed of consideration having proceeded from the 1st defendant to the plaintiff were “fictitious,” adopting the reasoning in paragraphs 6-16 of the District Munsif's judgment. Having referred to these paragraphs by number and expressed his concurrence, the District Judge proceeds to consider in paragraph 3 of his judgment the effect of the evidence, and finally deals with the law in paragraphs 4 and 5 of his judgment, distinguishing the facts as found by himself from the facts which, in his opinion, would be necessary to make the discussion in paragraphs 18 and 19 of the District Munsif's judgment applicable.
9. The District Judge's view as to the effect of the evidence is thus expressed in paragraph 3 of his judgment: “the intention was that title should not pass unless the plaintiff died at or about that time from the illness from which she was then suffering.” He again adverts to the view that he took of the evidence in paragraph 5 which brings out the effect of his finding, and the difference between the views of the evidence taken by himself and the District Munsif respectively.
10. The District Judge's view as to the legal consequence of the facts found is expressed partly in paragraph 3, partly in paragraphs 4 and 5 of his judgment. It is to the effect that the condition precedent to the sale having any effect had become impossible of fulfillment and that, therefore, the plaintiff was entitled to have the sale-deed cancelled.
11. The defendant appeals to this Court and the grounds argued before us are that the lower Appellate Court proceeded on a point which was not covered by the pleadings, that it erred in holding that the sale-deed does not operate because the condition precedent was not fulfilled, that the defendants were taken by surprise and had no opportunity of adducing any evidence on the point, that there was no evidence that the sale-deed should operate only if the plaintiff died of the illness she is alleged to have been suffering from at the time of Exhibit I, that no such agreement could be proved as it would be opposed to the provisions of Section 92 of the Indian Evidence Act and that there was ample consideration for the sale-deed.
12. The first question, therefore, that has to be decided is whether the lower Courts were right in interpreting the pleadings as they did. In this connection it is no doubt true that the defendants did not suggest, to the lower Appellate Court, as they now do, that they could have adduced evidence on the allegations considered to have been proved by the District Munsif and that they omitted to do so owing to their being misled by the terms, of the plaint and taken by surprise at the hearing. On the other hand, the lower Appellate Court does not deal with the defendants' grounds of appeal in which they, complained that the District Munsif had made out a new case for the plaintiff; and what is more, the case that the lower Appellate Court finds in favour of the plaintiff is not identical with that which the District Munsif considered might fairly be taken to represent the allegations in the plaint. For the case that the District Munsif considered to be alleged and made out was that the sale was to take effect when and as from the time that the plaintiff died; the District Judge held the plaintiff's case to be that the sale-deed was to have effect only if the plaintiff died of the illness from which she was then suffering.
13. The defendants are also justified in complaining that the real questions which the Court has to take into consideration in order to grant the reliefs prayed for have not been kept in mind. The importance of this in connection with Section 39 of the Specific Relief Act is insisted upon and illustrated in Vulley Mahomed v. Dattubhay(3).
14. Where there is a deed purporting to convey property for consideration and it is found that no consideration passed, one of the questions to be determined for the purposes of Section 39 of the Specific Relief Act is whether there was any intention to effect a transfer. For if there was, then failure to pay the consideration does not necessarily make the sale-deed void or voidable. It may only give the right to payment of the consideration together with a lien on the property until the consideration is paid.
15. In these circumstances it is necessary before disposing of this appeal to ask for findings on the following
Issues:—
(1) Whether the sale-deed referred to in the plaint was executed subject to a separate oral agreement constituting a condition precedent to its coming into operation.
(2) If the 1st question is answered in the affirmative, then what were the terms of the said agreement?
(3) Was the consideration referred to in Exhibit I intended to be paid by the 1st defendant, and
(4) Was it intended to effect any real transfer by Exhibit I and if so, what was the nature of the transfer intended to be made?
16. Inasmuch as no condition precedent is clearly put forward in the plaint, the defendants are entitled to have a written statement setting forth the case of the plaintiff on this point. Such a written statement shall be furnished within a reasonable time to be fixed by the District Judge.
17. The findings will be submitted within two months; seven days will be allowed for filing objections. Fresh evidence may be adduced.
18. In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following
FINDING
Issue (1). I find * * * * * that there was a separate oral agreement constituting a condition precedent to the sale-deed coming into operation.
Issue (2). * * * * * * * the agreement was not that the sale-deed should come into operation only if she died of the disease she was then suffering from, but that it was that it should come into operation only in the event of her death, whenever that may happen.
Issue (3). * * * * * the consideration referred to in Exhibit I was not intended to be paid by the 1st defendant.
Issue (4). * * * * it was intended that the 1st defendant should be put forward as the ostensible owner of the property conveyed under Exhibit I, but that possession and enjoyment should continue with the plaintiff during her life-time.
19. This second appeal coming on for final hearing on the nth August, 1915, after the return of the findings of the lower Appellate Court upon the issues referred to it for trial, and having stood over for consideration till this day, the Court delivered the following
JUDGMENT
20. The findings of the District Judge are not as clear as they might be. But we understand them to amount to this: that no title was intended to pass under the document Exhibit I until the death of plaintiff, on which the properties would vest in defendants. There is evidence to support this view, and we see no reason for not accepting it. It follows that the document was really intended to operate as a will and would be revocable by plaintiff at any time.
21. On this view, we see no reason to modify the decree of the lower Appellate Court except as to costs. Bearing in mind that plaintiff has only herself to blame for the litigation into which her disingenuous conduct has landed her, we direct that both parties bear their own costs throughout.
S.N/R.K
22. Appeal dismissed.