TMI Blog1986 (3) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... ed dated 9-4-1965 executed by defendant No. 3 in favour of defendants 1 and 2 which is Ext. 2 in the present case. The disputed land measures an area of Ac. 0.03 decimals pertaining to plot Nos. 49 and 59 under Khata No. 30 of village Haripur. According to the plaint case, the plaintiffs had lot of ancestral properties and there was lot of surplus income out of the said properties. The disputed land was purchased by defendant No. 3 under a registered sale deed dated 29-7-1937 from out of the surplus income of the ancestral property and, therefore, constitutes a part and parcel of the joint family properties of the plaintiffs and defendant No. 3. Defendant No. 3 had no right to transfer the said property in favour of defendants 1 and 2 witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the sale in question was there since defendant No. 3 had started construction of a house and for that he required some money. Defendants 1 and 2 have also contended that after taking possession of the disputed land they have constructed three-roomed, pucca house and are possessing the same from the date of the purchase. 4. On these pleadings, the learned Munsif has framed as many as eight issues and has come to hold that (1) the disputed property is not a part and parcel of the ancestral property of the plaintiffs arid defendant No. 3, but is a self-acquired property of defendant No. 3; (ii) from the recitals of the document(Ext. 2) it is difficult to ascertain the true intention of the parties specifically that of the vendor to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contrary to law and against the well recognised principles of joint family acquisition and, therefore, cannot be sustained. He further contends that the document (Ext 2) is clear and unambiguous and the same being legally construed clearly indicates that title passes irrespective of passing of consideration and, therefore, defendants 1 and 2 must be held to be the owner in possession of the disputed property. He also contends that the finding that there was no necessity for sale is also a finding unsupportable in law and, at any rate, the property being the self-acquired property of defendant No. 3, the finding as to the existence of legal necessity is immaterial. Mr. Nayak, appearing for the plaintiffs respondents, on the other hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maternal uncle to give money for the purchase in question and secondly, if the maternal uncle desired that defendant No. 3 should have a piece of land at Bhadrak, then he could have donated a land from out of his own kutchery at Bhadrak and, therefore, according to the lower appellate court these two circumstances improbabilise the evidence of P. W. 3. In my opinion, the lower appellate court instead of appreciating the evidence on record has entered into the arena of surmise and conjecture for disbelieving the evidence of P. W. 3. A court of fact is no doubt competent to disbelieve a witness on appraising his evidence, but not on entering into the realm of conjecture. If the lower appellate court records a finding not on appreciation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e document would be the sole determining feature. See Ramchandra Biharilal Firm v. Mathuramohan Naik and Gurubari Lenka v. Dulani Thakurani. AIR 1971 Ori 147. I have examined the document (Ext 2) at great length and am of the opinion that the terms of the document are clear and unambiguous and, therefore, the intention has to be gathered only from the terms of the said document. Under Sections 54 of the Transfer of Property Act, title passes upon execution and registration of the sale deed and the provisions of Sections 54 contemplate that there can be a valid sale even for a deferred consideration. The English translation of the material portion of Ext. 2 regarding passing of title and receiving of consideration is as follows : -- I, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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