A sale-deed, even if without consideration, can pass title to the property to the plaintiff if the parties intend that it should be paid at some future date.

( 1 ) THIS Letters Patent appeal under Clause 10 has been filed against the judgment of a Single Judge of this Court, delivered on 15-7-1958. The suit out of which this appeal arises was filed by the respondent Punau against the appellants Sukaloo and Mst. Dukala for recovery of damages for removal of crop from the suit filed for the year 1950-51.

( 2 ) IT is not disputed that the field in dispute belonged to one Bhikmanga. He married Mst. Sukwaro in churi form. At that time, the respondent Punau was less than a year old and he came to live along with his mother with Bhikmanga, who brought him up as his own son. Bhikmanga died in 1947 leaving behind him his widow Mst. Sukwaro, who died in 1951. Appellant No. 1 Sukaloo is Bhiknianga's father's brother's grandson and appellant No. 2 Mst. Dukala is his wife.

( 3 ) THE plaintiff's case was that on 8-2-1948 Bhikmanga had executed a sale-deed in respect of the suit land in his favour for Rs. 4000/- and had delivered possession of the same to him. In 1950-51, the defendants forcibly removed the crop which he valued at Rs. 700/ -.

( 4 ) THE defendants denied the sale-deed and pleaded that it was without consideration. They stated that as Mst. Sukwaro was wasting the property, they took possession of the same as reversioners of Bhikmanga in 1951.

( 5 ) THE trial Court and the appeal Court held that although the sale-deed (Ex. P2) was executed by Bhikmanga, the consideration of Rs. 4000/-was never paid to him. Accordingly, they held that the respondent (plaintiff) derived no title to the land under the sale-deed. The claim was, therefore, dismissed.

( 6 ) THE finding of the Courts below that the amount of Rs. 4000/- was not paid under the sale-deed was based on a consideration of the pecuniary circumstances of the plaintiff. It is a finding of fact which was binding in second appeal and was therefore accepted by the learned Single Judge. However, the decision of the Courts below was reversed by the learned Single Judge on two grounds, viz. , (i) that although the sale was without consideration, the title in the property had passed to the plaintiff by the execution and the registration of the sale-deed; and (ii) that the sale-deed being without consideration amounted to a gift. Accordingly, the claim for damages was decreed for Rs. 500/- which was the value of the crop as found by the Courts below.

( 7 ) THE first point which arises in this appeal is whether the sale-deed, being without consideration, passed the title in the property to the plaintiff-respondent. Section 54 of the Transfer of Property Act provides that a sale must be (i) by a registered document if it is worth more than Rs. 100/-; and (ii) there must be a price paid or promised or part-paid and part-promised. There is little difficulty in holding that title in property can pass by sale even if no consideration is paid provided that the parties intend that it should be paid at some future date. The difficulty arises, in the instant case, on account of the fact that the recital that the whole consideration had been paid before the execution of the deed has been found to be false.

( 8 ) THE point arose directly for consideration on facts very much similar to the present case in Hemraj Marwari v. Trimbak Kunbi, AIR 1924 Nag 146, Hallifax, A. J. C. , deciding that case observed as follows : "in all the rulings cited as apparently contradictory there was a transfer of ownership made in the prescribed manner which is the first of the two essentials of a sale. But in every case in which there was a promise of payment it is held that the second essential of a sale is present, and the whole definition is satisfied where the promise was subsequently kept or broken. So also in each case in which there was neither payment nor promise, it is held that the second essential is absent and the definition is not satisfied. " A contrary view was taken by the Patna High Court in Bhonu Lal v. W. A. Vincent, AIR 1922 Pat 619. A