Radha Mohan Prasad, J.
1. As both these second appeals at the instance of defendant 1st party arise out of common judgment passed in Title Appeals No. 30 of 1997 and 21 of 1997 respectively by 3rd Additional District Judge, Saharsa with consent of the parties, they have been heard together and are being disposed of by this common order.
2. The case of the plaintiffs, in brief, is that Most. Sanjha Devi after the death of her husband Lakhan Das began to maintain her minor step son Jago Das, born of Sundari Devi first wife of Lakhan Das. She purchased 9 dhurs of suit land from one Ram Subhag Thakur vide registered sale-deed dated 13-3-1987 (Exhibit-1) for construction of residential house. She claimed that she included the name of her minor son Jago Das in the sale-deed with clear recital that he will have no right in the suit land till her life time. Further case of the plaintiffs is that in the year 1990, when Jago Das was aged about 12-13 years, he under the influence of the defendant Ist set-appellant executed a sale-deed dated 9-4-1990 (Exhibit-1/C) in his favour for an area of 4 1/2 dhurs. It is alleged that defendant 2nd set-Bhagwat Yadav got another sale-deed (Exhibit-1/A) for the remaining 4 1/2 dhurs of land executed by Sanjha Devi on 26-5-1990 by putting her in darkness. Later Sanjha Devi executed registered deed of cancellation (Exhibit-1/B) on 16-8-1990. It is further alleged that the defendant appellant forcibly and illegally dispossessed the plaintiffs from the suit land on 4-11-1990. Hence, the plaintiffs filed suit for declaration of two sale-deed dated 9-4-1990 and 26-5-1990 (Exhibits 1/C and 1/A respectively as void, illegal and inoperative as also for recovery of possession.
3. The defendant Ist set-appellant in his written statement alleged that Jago Das was not minor at the time of execution of the sale-deed, and the suit land was purchased from the nucleus of the joint family property and both Sanjha Devi and Jago Das had equal Share in the same. His further case is that defendant 2nd set-Bhagwat Yadav purchased 4 1/2 dhurs of land from Sanjha Devi and came in possession thereof, and defendant Ist set- appellant purchased the said land from Bhagwat Yadav vide registered sale-deed dated 8-8-1990 (Exhibit-B/1) and, thus, came in possession over the entire land of 9 dhurs. Defendant 2nd set filed common written statement but did not appear in course of hearing of the suit or the appeal in the lower appellate Court.
4. The trial Court on consideration of the pleadings as well as evidence both oral and documentary adduced on behalf of the parties came to the conclusion that Jago Das was not minor at the time of execution of sale-deed dated 9-4-1990 (Exhibit-1/ C), and thus, dismissed the suit in part insofar as it relates to 4 1/2 dhurs of land covered by the said sale-deed. He further held that the sale-deed dated 26-5-1990 (Exhibit-1/A) was void and illegal as there was no passing of consideration and it was executed out of fraud, and thus, allowed the claim of the plaintiff Sanjha Devi with respect to the land covered by the said sale-deed and decreed the suit in part, On appeal filed by the plaintiffs being Title Appeal No. 30 of 1997, the lower appellate Court reversed the findings of the trial Court by holding that Jago Das was minor on the date of execution of the sale-deed, hence, the sale-deed executed by him is void. The Title appeal filed by the defendant-appellant being Title Appeal No. 21 of 1997 was dismissed by the lower appellate Court affirming the findings of the trial Court with respect to the sale-deed dated 26-5-1990, and decreed the suit in entirity.
5. Learned Counsel for the appellant has submitted that the Courts-below have failed to appreciate that non-passing of. consideration will not extinguish the title acquired by execution of the sale-deed. The title passes to the vendee with the execution and registration of the deed itself, In support of his contention, he placed reliance upon the decision of this Court in the case of Sheikh Sultan Ahmad v. Syed Maksad Hussain @ Bhakur and Anr., report in AIR 1944 Patna 3, Pritam Singh and Ors. v. Jagannath Sarawgi and Ors., reported in AIR 1947 Patna 1, Ganesh Prasad v. Deo Nandan Raut and Ors., reported in AIR 1985 Patna 94 : 1984 PLJR 659 and Baldeo Singh and Ors. v. Dwarika Singh and Ors., reported in AIR 1978 Patna 97 : 1978 PLJR 253.
6. I failed to appreciate as to how the aforementioned decisions are of any help to the appellant, rather it supports the case of the plaintiff-respondents. A Division Bench of this Court in the case of Baldeo Singh and Ors. v. Dwarika Singh and Ors. (supra), while dealing with the question as to whether title passes on mere execution and registration of a deed or only on payment of consideration held that it depends upon the intention of the parties to be gathered from the deed, and further, that though the sale-deed may recite that the consideration has been paid, but there is nothing to prevent the parties from adducing evidence to show that the recital is untrue, and, in fact, the consideration was not paid. According to the Division Bench, this will not be barred by Section 92 of the Evidence Act. Learned Single Judge of this Court in the case of Ganesh Prasad v. Deo Nandan Raut and Ors. (supra), while discussing a number of case laws held that want or failure of consideration, the condition precedent to the transfer, irrespective of the recitals of the document, can be proved by independent evidence, and further, that whether the consideration is executed or is still executory or in other words whether the consideration is actually paid and accepted or not is a question which a Court can determine on such evidence that the parties may lead and the contents of the document of disposition shall not be conclusive for the said purpose. This Court finds that both the Courts-below on the basis of evidence have come to the conclusion that no consideration was paid and, that there was clear intention of the parties to pass title only after the exchange of equivalents. This Court in the case of Shiva Narayan Sah @ Sibji Sah and Ors. v. Baidyanath Prasad Tewary and Ors. reported in 1974 BLJR 81, held that the title did not pass to the vendee with the execution and registration of the deed. It was to pass at the time of, exchange of equivalents when the vendee was required to pay the balance of the consideration money to the vendor and the vendor was to hand over registration receipt to the vendee.
7. Under the above circumstances, I do not find any error in the impugned judgment warranting interference in Second Appeal. No other question muchless substantial question has been argued on behalf of the appellant. Both the appeals are, thus, dismissed.