Payment of the entire consideration is not necessarily a condition precedent for the passing of title in a sale of property, and the intention of the parties must be determined from the terms of the sale deed and the surrounding circumstances.

JUDGEMENT :- PALANISWAMY, J.

The fourth defendant in O. S. No. 335 of 1965 on the file of the District Munsif, Melur, is the appellant in this second appeal. The suit properties consisting of three items of wet lands belonged to the first defendant Nainammal. The first defendant has three sons, and they are, Masthan (the second defendant), Manian and minor Mohammed Uthirif. Though her sons had no title to the properties, a sale deed was written on 18-3-1955 (Ex. A-1) in which the vendors were the first defendant and her three sons, the first defendant acting for herself and as guardian of the said minor. But the document was signed only by the first defendant for herself and as guardian for her minor son and the second defendant. The sale was for Rs. 2450. The document inter alia recited that the vendors had received Rs. 530 on the date of the execution of the sale deed and that the balance of the consideration, namely, Rs. 1,900, would be received in the presence of the Sub-Registrar at the time of the registration of the sale deed. On 16-5-1955, the first defendant issued the notice Ex. B-1 to the plaintiff stating that the agreement was that the sale should be completed within a week after the execution of the sale deed, that the first defendant was ready and willing to have the document registered on receipt of the balance of the consideration and that the plaintiff should pay the said balance at the time of the registration of the document and complete the transaction. On 16-7-1955, the plaintiff presented the document before the Sub-Registrar, Melur. Notices were issued to defendants 1 and 2, who appeared before the Sub-Registrar and admitted execution, but stated that inasmuch as the plaintiff was not willing to pay the sum of Rs. 1900 they were not willing for the registration of the document. Inasmuch as execution was admitted, the Sub-Registrar registered the document on 18-7-1955. On that date itself, the first defendant purported to cancel the safe deed Ex. A-1 by executing the cancellation deed Ex. B-7. On 10-9-1957, she executed a usufructuary mortgage over the suit properties in favour of the third defendant under Ex. P-8. On 7-12-1962 she sold the suit properties in favour of the fourth defendant, the appellant herein, under Ex. B-10, directing discharge of the aforesaid debt. The plaintiff laid this suit on 29-9-1965 praying for a declaration of his title to the suit properties and for recovery of possession of the same with mesne profits. He contended that he did not pay the balance sale consideration and dispute was raised with regard to the title by one Jamal Mohideen and that he was prepared to deposit the balance of the sale consideration. He also stated that though he was put in possession of the properties, he was dispossessed by the defendants in August, 1958.

2. The suit was resisted mainly by the fourth defendant contending inter alia that title did not pass in favour of the plaintiff as the intention was that payment of the entire consideration was condition precedent for conferment of title on the plaintiff and that as the plaintiff failed to pay the amount in spite of demand by the first defendant, the first defendant was competent to execute the sale in favour of the fourth defendant.

3. The trial Court accepted the defence of the fourth defendant and dismissed the suit. The lower appellate Court took a different view holding that non-payment of the balance of consideration was not material and did not affect the passing of title in favour of the plaintiff and that title passed la favour of the plaintiff on the execution of the sale deed and registration thereof. In that view, the suit was decreed with costs, and the appellate Court directed the Court to determine the mense profits claimed by the plaintiff. The appeal is directed against that decision.

4. The only question that arises for consideration is whether, under the terms of Ex. A-1, the intention of the parties was that payment of the entire

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