9911796707
TMI Blog1973 (3) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1300/- in favour of defendants second party. The original plaintiff also sought a direction that defendants second and third parties be ordered to deposit the deed of mortgage by conditional sale and the registration receipt in token of payment of ₹ 1300/- in court and to give up possession of the disputed property in her favour. 2. The admitted facts are that on 3rd December. 1956 defendant No. 1 executed a deed for ₹ 1300/- in favour of defendant No. 2 in respect of the disputed property. According to this deed the property was to go back to defendant No. 1 on payment of the amount aforesaid if paid before 13th Baisakh. 1371 Fs (corresponding to 9th May. 1964). If the amount was not paid by that date the property was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant No. 2 further was that the deed dated 3rd December, 1956 was not a deed of mortgage by conditional sale but it was a deed of sale with condition of re-purchase and. therefore, the deed could not be redeemed. It may be stated here that the case of the plaintiff further was that much before the date of cancellation, she had tendered ₹ 765/- to defendant No. 1 and ₹ 1300/- to defendant No. 2 and they had refused to accept the amount. 4. The courts below have accepted the case of the respondents that title passed to the original plaintiff with the execution and registration of the sale deed. They have further accepted their case that the balance of consideration money of Exhibit 5/a and the mortgage money under the deed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was with the vendor and possession was not delivered to the vendee also show that title was not to pass till exchange of equivalents. He has also drawn our attention to a recital in the deed according to which, as already stated, ₹ 765/- was to be paid at the time of exchange of equivalents. On the other hand, Mr. R. S. Chatterji. learned counsel for the respondents, has submitted that as bulk of the consideration money which was to be paid to defendant No. 1 was already paid and the document does not expressly say that title was not to pass till the payment of the balance of the consideration money, title did pass to the vendee with the execution and registration of the deed. We have examined the authorities cited by learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hand over the registration receipt. This evidence has been accepted by both the courts below. Their finding, therefore, that there was tender by the original plaintiff of the balance of the consideration money and refusal by defendant No. 1 to accept the same is a finding of fact and cannot be challenged in the second appeal. The original plaintiff did all what she was required to do for the exchange of equivalents. It was defendant No. 1. the vendor who refused to perform his part. In our opinion, therefore, title did pass to the vendee of Exhibit 5/a in March. 1960 when she tendered the balance of consideration money to defendant No. 1. It was not open to defendant No. 1 to refuse to accept the amount which was offered within a reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 150 of the Bengal Tenancy Act. Of course, their Lordships also referred to Section 38 of the Contract Act. These cases, therefore, in our opinion, cannot be considered as authority for the proposition that if tender is not accompanied by deposit in court, title would not pass to the vendee if he tenders the consideration money to the vendor within a reasonable time and the vendor refuses to accept it. Section 55 (5) (b) of the Transfer of Property Act itself says that the buyer is bound to pay or tender at the time and place of completing the sale, the purchase money to the seller or such person as he directs. The section does not say that if there is a tender and there is a refusal by the seller the buyer is bound to make a depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow has not discussed the evidence of the witnesses in detail but its judgment was one of affirmance. The trial Court has discussed the evidence of witnesses in detail and the court of appeal below has agreed with the view taken by that court. In that view of the matter, the judgment of the lower appellate Court cannot be said to be bad in law on the ground that it has not dis-cussed the evidence of the witnesses on the question of tender of the balance of consideration money of Exhibit 5/a and of mortgage money under the deed dated 3rd December. 1956 in detail. We have already accepted the findings of the court below while dealing with the first contention of Mr. Mukherjee. 11. Mr. Mukherji has also argued that no decree for redemption of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
