In cases of sale of property, the primary criterion to determine whether title passes on the registration of the document of sale or depends on the passing of consideration is the recitals in the document. Extrinsic evidence is admissible only if the recitals are indecisive or ambiguous.

Judgement

MOHAPATRA, J. :- This second appeal is by defendants 1, 6 and 7 against the confirming judgment of Sri I. C. Misra, Subordinate Judge of Balasore, arising out of a suit brought by the plaintiffs for declaration of title and for possession in respect of three schedules of lands described in the plaint. It is the case of both parties that defendant No. 1 Kara Bewa inherited the properties on the death of her husband Ranka Barik. The plaintiffs base their title on a registered sale-deed (Ext. A) dated 19-5-1949, conveying the entire properties for a consideration of Rs. 200/-. On 8-7-1949 she cancelled the document (Ext. A) by a registered cancellation deed (Ext. B) stating therein that the consideration money was not paid by the vendees as agreed. On 19-9-1949 she sold these properties by another registered sale-deed (Ext. C) in favour of defendants 6 and 7.

2. The defence is that title had not passed in favour of the plaintiffs on the basis of the earlier document as the intention of the parties to the document was to the effect that title would not pass unless consideration is paid. It was further urged by defendant No. 1 that the plaintiffs had contracted to pay a sum of Rs. 480/- as consideration money even though a consideration of Rs. 200/- was only mentioned in the sale deed in favour of the plaintiffs. Defendants 6 and 7 claim title on the basis of the sale-deed (Ext. C) executed in their favour relying on the position that title had not passed in favour of the plaintiffs on account of non-payment of the consideration money.

3. The Courts below concurrently found that Ex. A the sale-deed in favour of the plaintiffs dated 19-5-1949 was only for Rs. 200/- and not for Rs. 480/- as stated by defendant No. 1. They have concurrently found that the consideration money had not been paid.

4. The lower appellate Court has indeed approached the case from the right point of view that in cases of this nature where the question arises whether title passes on the registration of the document of sale, or that passing of the title depends upon the passing of consideration, the primary criterion is the recitals in the document. It requires no reiteration that only if the recitals in the document are indecisive or ambiguous, the sorrounding circumstances in the conduct of the parties would be relevant. The relevant passage from the sale-deed (Ext. A) is as follows as translated :

"I today having duly sold to you (the Vendees) A. 2-19½ decimals of land, as scheduled below at the present prevailing rate for the aforesaid consideration of Rs. 200/- and having received the entire consideration money in cash from you today, hereby stipulate as follows :

"That you the vendees with your lineal descendants will enjoy the properties under sale with all sorts of rights appertaining thereto till the sun and moon endure. You will get your name mutated in the zamindari sherista according to notice under S. 31. You will alienate the property according to your necessity."

I have gone through the original document carefully. To me it appears the recitals are not clearly decisive. If really the recitals were to the effect that on receipt of the consideration money I sell the property to you and make you the full owner thereof, it would have been clear enough to show that the passing of title would depend upon the passing of consideration. On the contrary if there is a clear conveyance that the executant conveys title in favour of the vendee from the date of the execution of the document and the recital regarding consideration comes later independently of the clause regarding title, then only it is clear that title passes independent of the question of consideration.

But here the sentence is so involved and the terms regarding passing of title, passing of consideration and the vendees being the owners in respect of the properties sold are so intermingled that it is very difficult to make out from the recitals a definite position that in fact the parties i