The intention of the parties to a sale deed is the determining factor in deciding whether title passes upon registration of the deed or upon payment of the consideration.

Narayan, J.

1. This appeal has been brought by the plaintiffs, and it arises out of a suit for declaration of title and recovery of possession with regard to certain properties which originally belonged to one Siasaran Singh. Siasaran died leaving two widows and three daughters. The widows contracted debts amounting to Rs. 4520/-, and after their death the three daughters of Siasaran inherited all his properties. There was a division of the properties between the daughters and Ramdulari Kuer who was impleaded as defendant 3 in this action, as one of the daughters, got one-third of the properties and also took upon herself the liability to pay one-third of the total debts, that is a sum of Rs. 1506/10/8p. On 16-4-1942 she sold the properties in suit to Ramnandi Kuer, the mother of the plaintiffs, for a consideration of Rs. 3000/-. Out of the said consideration of Rs. 3000/-, Rs. 1646/0/8p was to be paid to the creditors in satisfaction of the debts which Ramdulari Kuer was liable to pay, and the balance was to be paid at the time when the registration receipt was handed over to the vendee. There was a further agreement to the effect that the husband of Ramdulari Kuer would execute a jarnanatnama in favour of the vendee so as to compensate her in case there was any defect found in the vendors title to the properties. Neither the registration receipt nor the sale-deed was handed over to the vendee, and she did not get possession of the properties covered by the kobala. On 10-4-1943 Ramdulari Kuer executed a document cancelling the kobala, and on 6-7-1943 she transferred the properties covered by the kobala to the defendants first party. The vendee Ramnandi Kuer died thereafter, and the plaintiffs who are the sons of Ramnandi Kuer instituted this suit on 6-4-1946. The contention of the plaintiffs is that with the execution of the sale-deed their mother acquired absolute title to the properties and that consequently they are entitled to recover possession of the properties after dispossessing the defendants.

2. The defendants first party are the main contesting defendants in this suit, and the contentions raised by them are that the sale-deed remained inoperative because the consideration money was not paid and that the intention of the parties to the sale-deed was that title would not pass until the consideration was paid.

3. The Court of first instance decreed the suit, but on appeal by one of the defendants first party its decision was reversed by the learned Additional District Judge of Patna. The learned Additional District Judge was of the opinion that the intention of the parties was that title would not pass until the consideration was paid, and that as the consideration had not been paid in spite of notice to the vendee the sale-deed had remained inoperative. The learned. Additional District Judge, therefore, dismissed the suit but with this condition that the plaintiffs who had paid Rs. 164/15/- in satisfaction of a decree would be entitled to deduct this amount from the costs awarded to the defendants-appellants.

4. The counsel for the appellants relied on the definition of sale as given in Section 54, T. P. Act, the word sale having been defined as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. And the counsel for the respondents relied on a very recent decision of this Court reported in -- Motilal Sahu V/s. Ugrah Narain Sahu, AIR 1950 Pat 288 (A) to which I was a party. As I felt that I had not received sufficient assistance from the counsel for deciding this important point, I took time to examine the authorities on the subject and to consider as to which of them could be applied to the facts of this case. Undoubtedly, there has been some conflict of judicial opinion on the question as to whether or not title would be deemed to have passed as soon as a sale-deed is registered and as to whether the mere non-payment of consideration will not render the sale-deed