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Orissa High Court
R.N.MISRA
Gurubari Lenka - Appellant
Versus
Dulani Thakurani - Respondent
Second Appeal No. 364 of 1966
Decided On : 10/21/1970
ABATEMENT OF SUIT - DEATH OF PLAINTIFFS - NO SUBSTITUTION - EFFECT - SALE DEED - PASSING OF TITLE - DEFERRED PAYMENT OF CONSIDERATION - INTENTION OF PARTIES - POSSESSION - FINDING OF FACT - SECOND APPEAL.
Fact of the Case:
Plaintiffs filed a suit for title, possession, and damages, claiming that defendants 1 and 2 sold the disputed property to plaintiff No. 1, a deity represented by its marfatdars, under a registered sale deed. Defendants 1 and 2 denied the sale and claimed ownership and possession of the property. During the trial, some plaintiffs and defendants compromised their litigation, and defendants 7 and 8 went ex parte. The trial court dismissed the suit, finding that consideration under the sale deed did not pass, plaintiffs were never put in possession, and title was not intended to pass. On appeal, the appellate court reversed the trial court's decision and decreed the suit.
Finding of the Court:
The High Court held that the suit did not abate due to the death of two plaintiffs during the pendency of the suit because the deity was the real plaintiff and the marfatdars represented it. The court also held that the sale deed clearly indicated the parties' intention to pass title in praesenti despite deferred payment of consideration and that the plaintiffs were entitled to possession of the property. However, the court modified the appellate court's judgment by requiring the plaintiffs to pay the consideration money under the sale deed within a month, failing which the defendants could execute the decree for realization of the consideration money along with costs of execution.
Issues: 1. Whether the suit abated due to the death of two plaintiffs during the pendency of the suit without substitution? 2. Whether the sale deed passed title to the plaintiffs despite deferred payment of consideration? 3. Whether the plaintiffs were entitled to possession of the property?
Ratio Decidendi: 1. A properly constituted suit at its inception does not abate as a whole due to non-substitution in place of one of the joint marfatdars of a deity. 2. If the terms of a sale deed are clear and unambiguous, external aid is not available to find out the true intention of the parties, and the narration in the document is the sole guiding feature. 3. Parties can agree that title would pass in praesenti and payment of consideration would be deferred, and in such a case, title passes even without passing of consideration.
Final Decision: The Second Appeal was dismissed, and the judgment of the lower appellate court was upheld subject to the modification that the plaintiffs were called upon to pay the consideration money under the sale deed to defendants 1 and 2 within a month, failing which the defendants could execute the decree for realization of the consideration money along with costs of execution.
JUDGMENT :- Defendants 1 and 2 are in appeal against a reversing decision of the learned Subordinate Judge of Cuttack in a suit for title, possession and recovery of damages.
2. The plaintiffs claimed that defendants 1 and 2 were the owners of the disputed property and sold the same to plaintiff No. 1 - a deity represented by its marfatdars plaintiffs 3 to 6, 10 and some others - under a registered sale deed dated 19-8-49 for a consideration of Rs. 100/-. It was settled that the consideration for the sale would be paid at the time of endorsement of the registration ticket. Title passed under the sale deed and the vendee, that is, the deity represented by the marfatdars became the owner of the property. Defendants 1 and 2 gave up possession of the disputed property and the deity came to possess the same. The sale deed was lying with defendants 1 and 2 and they refused to part with it during the current settlement operations and even went to the extent of denying the sale. In 1950 defendants 1 and 2 took away the crop raised by the plaintiff.
3. Defendants 1 to 3 in their joint written statement contended that defendants 1 and 2 were the owners in possession of the disputed property and they have been continuing in such possession qua owners. The execution of the sale deed and the plaintiff's claim of parting with possession were denied. It was further contended that defendant No. 3 was never in custody of the sale deed and there was no occasion for him to refuse to part with it. Defendants 4, 6, 9 and 10 filed another joint written statement supporting the claim of defendants 1 to 3.
4. During the trial, plaintiffs 3, 6, 12, 14, 18 and 21 and defendants 4 to 6 and 10 compromised their litigation with defendants 1 to 3. Defendants 7 and 8 went ex parte. The trial court came to hold that consideration under the sale deed (Ext. B) did not pass; the plaintiffs had never been put in possession of the disputed property; in the absence of passing of consideration title was not intended to pass. On these findings it dismissed the suit.
5. The plaintiffs thereupon appealed and the learned Appellate Judge came to differ with the conclusions of the trial court and ultimately decreed the suit. This reversing appellate decision is impugned in the present Second Appeal.
6. Three contentions are mainly advanced by Mr. D. Mohanty, the learned counsel for the defendants 1 and 2 -appellants. According to him, the entire suit must be taken to have abated as plaintiffs 20 and 21 died during the pendency of the suit and there was no substitution. In this Court an application supported by affidavit was filed taking this ground of abatement. By order No. 5 dated 11-2-67 this question was directed to be taken up at the hearing and objection, if any, by the respondents was called upon to be filed. No objection has at all been filed. The suit was filed on 30-1-60. Plaintiff No. 20 died on 25-2-60 and plaintiff No. 21 died on 24-10-60. Admittedly there has been no substitution.
Mr. Mohanty, therefore, contends that the suit must be taken to have abated. In support of this contention of his he relies upon two decisions of this Court in ILR (1962) Cut 17 (Kanhu Padhan v. Bhutulu Padhan) and AIR 1967 Orissa 6 (Nilamani v. Radhamohan). It is further stated by Mr. Mohanty that in view of the fact that the plaintiffs came forward with a common case if the suit abates as against plaintiffs 20 and 21, the entire suit must be taken to have abated. There is no challenge to the allegation about the death of plaintiffs 20 and 21. Mr. Dasgupta appearing for the respondents, however, states that while he accepts the fact of death it has no bearing on the maintainability of the Second Appeal. The two other contentions relate to the merit of the matter. Mr. Mohanty contends that in view of the finding that there was no consideration under Ext. B it must be taken that the sale deed failed for want of consideration and no title can be taken to have passed under it. There was pr
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