TMI Blog2009 (2) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ing conveyed to the purchaser. This makes it clear that the title was intended to pass only on the payment of balance consideration of ₹ 40,000/- in the presence of the Sub-Registrar. This is also supported by the evidence of DW-1 to DW-4. The Sub-Registrar has also clearly recorded that no amount was tendered or paid by the purchaser to the vendors in his presence. Therefore title in fact did not pass either on execution or registration of the sale deed. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact, the appellant, therefore, sought a decree for possession of the suit properties from the respondents with mesne profits. If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant. All the three courts have also concurrently found that the appellant had pleaded a false case that he had paid a part of the balance consideration, that is, ₹ 25,000/- on July 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uddalore vide judgment dated December 15, 1988, rendered in Appeal No. 55 of 1987, is set aside. 2. The facts emerging from the record of the case are as under: - The suit properties originally belonged to the family of the respondents. First respondent (for himself and his minor sons) and the second respondent sold the properties to the appellant for a consideration of ₹ 43,000/- by a deed dated June 26, 1983. Out of the sale consideration of ₹ 43,000/- a sum of ₹ 3,000/- was to be appropriated towards the discharge of the mortgage executed by the respondents in favour of the appellant. The balance of ₹ 40,000/- was to be paid before the Sub-Registrar at the time of registration of the sale deed. It is the case of the appellant that before the document could be presented for registration, he paid to the respondents a sum of ₹ 25,000/- on 21.7.1983 as they required that amount for purchasing a lorry, therefore, at the time of registration of the sale deed he was required to pay only the balance of ₹ 15,000/- to the respondents. It is the case of the appellant that as the respondents had denied payment of ₹ 25,000/- to them, he was lef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad acquired title to the suit properties when the sale deed dated June 26, 1983 was duly registered and was entitled to declaration of his title as well as possession of the suit properties with mesne profits. According to the trial court, remedy of the respondents was only to sue the appellant for recovery of the consideration mentioned in the deed but they were estopped from denying his title. Therefore, the trial court decreed the suit by judgment dated January 23, 1987. 5. Feeling aggrieved the respondents preferred Appeal No. 55 of 1987 in the District Court South Arcot District at Cuddalore. The learned District Judge also held that title of the appellant to the suit properties was established in view of the execution of sale deed and its registration, but he was not entitled to mesne profits. After holding that the appellant had failed to prove the payment of ₹ 25,000/- he held that the appellant was due in respect of the balance consideration of ₹ 40,000/- to the respondents. The learned District Judge clarified that the appellant would be entitled to possession of the suit properties only after he deposited the said ₹ 40,000/- and that the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deed and its registration, the possession of the suit properties would have been delivered to the appellant. 10. All the three courts have also concurrently found that the appellant had pleaded a false case that he had paid a part of the balance consideration, that is, ₹ 25,000/- on July 21, 2003 to the respondents to enable them to purchase lorry. This case of the appellant was disbelieved by the trial court as well as the first appellate court which is the final court of facts. That finding was not challenged by the appellant before the High Court. From the averments made in the plaint it is evident that the appellant was ready and willing to make payment of only ₹ 15,000/- and not ₹ 40,000/-. He had never shown his readiness or willingness to make payment of ₹ 40,000/- which was the balance of the consideration and which had to be paid only in the presence of the Sub-Registrar, as mentioned in the deed. Therefore, the first respondent who was present before the Sub-Registrar on behalf of the respondents on October 26, 1983, was justified in not signing or affixing his thumb mark in the endorsement of registration to be made on the deed, by the Sub-R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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