Pasayat, J.
1. Present appeal is directed against the judgment dated 18-8-1983, and consequential decree passed by the learned Subordinate Judge, Jagatsinghpur (as was then designated) in Title Suit No. 61 of 1982, where the reliefs sought for were for declaration of title, confirmation of possession, and in the alternative for recovery of possession.
2. Position of the parties in the present appeal vis-a-vis the suit is as follows:
Appellant was defendant No. 2 in the suit, respondents 1 to 3 were plaintiffs in the Court below and respondent No. 4 was defendant No. 1.
3. Plaintiffs' case in essence was as follows:
Defendant No. 1 being owner of the suit land transferred the same by a registered sale deed dated 7-6-1982 to the plaintiffs for a consideration of Rs. 5,000/-. There was an agreement between the vendor and the vendees that plaintiff No. 1, who was staying at Calcutta, shall pay consideration money after his return therefrom. The sale deed was executed and registered with a condition that the consideration money shall be paid at the time of endorsement of the registration ticket, after registration of the deed. On 8-6-1982 no intimation could be given to the plaintiff No. 1 due to cyclone. On 9-6-1982, therefore, he was intimated to come with the consideration money. On 12-6-1982, plaintiff No. I came and offered the consideration money to defendant No. 1. It was then disclosed that she had already transferred the land in favour of defendant No. 2 by cancelling the earlier sale deed. On enquiry, the plaintiffs came to know that on 9-6-1982 defendant No. 1 purchased stamp paper for cancellation of sale deed in favour of the plaintiffs, and on 10-6-1982 the deed of cancellation was made by defendant No. 1. On that very day, i.e., 10-6-1982, defendant No. 1 executed and registered another deed in favour of defendant No. 2. On 7-7-1982, the plaintiffs filed the suit as defendant No. 2 disturbed their possession. It was the specific stand of plaintiffs that possession was delivered to them.
Both the defendants contested the suit by filing their written statements. Their case in short is that title in respect of the suit land had not passed in favour of the plaintiffs, as they had not paid the consideration money. Defendant No. I, therefore, being left with no other alternative, cancelled the sale deed and executed another sale deed in favour of defendant No. 2 on 10-6-1982.
4. Trial Court framed six issues out of which issue No. 3 was the pivotal issue which reads as follows:
'(3) Whether the passing of title in this case depended upon the passing of consideration?'
Three witnesses were examined by the plaintiffs and plaintiff No. 1 himself was examined as P.W. 1, Defendants examined four witnesses out of whom defendant No. 1 herself was examined as D.W. 1.
Trial Court on consideration of materials on record came to hold that the documents more particularly the sale deed (Ext. 2) established that passing of title was not dependent upon passing of consideration. While decreeing the plaintiffs' suit is directed the plaintiffs to pay Rs. 5,000/- to defendant No. 1 towards consideration money. The plaintiffs have deposited the same in trial Court.
5. According to learned counsel for appellant, the conclusion that passing of title was not dependent upon payment of consideration is indefeasible. A too technical reading of the sale deed (Ext. 2) as regards passing of title should not have been done. Conclusions of the learned trial Judge regarding delivery of possession are not based on record, and therefore, the plaintiffs' suit should have been dismissed. Learned counsel for respondents on the other hand submitted that payment of consideration was not sine qua non for passing of title as has been rightly held by the learned trial Judge, and there is no infirmity in his judgment to warrant any interference.
6. Section 54 of the Transfer of Property Act, 1882 (in short, the 'Act') is a part of Chapter III dealing with sale of immoveable property. 'Sale' is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the property sold. No rights are left in the transferor. The essential elements of a sale are (i) the parties; (ii) the subject-matter; (iii) the transfer or conveyance; and (iv) the price or consideration. The word 'price' is used in its ordinary sense as meaning money only. It is used in the same sense as in Section 77 of the Indian Contract Act, 1872 (in short, the 'Contract Act'). As has been observed by the Supreme Court in Commissioner of Income-tax v. Motor and General Stores (P.) Ltd., AIR 1967 SC 200 (sic), though 'price' is not defined in the Act, it is used in the same sense as in the Sale of Goods Act, 1930 (in short, the 'Sale Act'), and means the money consideration for the sale of goods. The presence of a money consideration is an essential element in a transaction of sale. Price is the essence of a contract for sale, and unless price is fixed, there is no enforceable contract, because if no price is named law does not imply, as in the case of a sale of goods, a contract to buy at a reasonable price. In all sales it is evident that price is an essential ingredient and that where it is neither ascertained nor rendered ascertainable the contract is void for incompleteness, and incapable of enforcement. If the consideration is not money, but some other valuable consideration, it may be an exchange or barter, but not a sale. The payment of price is not necessarily a sine qua non to the completion of the sale. If the intention is that property should pass on registration, the sale is complete as soon as the deed is registered, whether the price has been paid or not, and the purchaser is entitled to sue for possession although he has not paid the price. This is clear from the words of the section, 'price paid or promised or part paid or part promised'. If the price is not paid the seller cannot on that account set aside the conveyance. We can only sue for the price, and he will have a charge on the property for the unpaid purchase-money. This is a non-possessory charge in terms of Section 55(4)(b) of the Act.
7. The factual position needs reference for application of the legal position, Muralidhar Mohanty (D.W. 4) is the husband of defendant No. 1. From his evidence it is revealed that on 7-6-1982 his wife defendant No. 1 sold the land to plaintiffs. At 7 p.m. that day they returned home from the Sub-Registrar's Office. On 9-6-1982 they purchased stamp paper for execution of a deed of cancellation of the above sale deed. Later, on 10-6-1982 the sale deed dated 7-6-1982 was cancelled by defendant No. 1, vide Ext. 2 and the sale deed transferring the disputed properties in favour of defend ant No. 2 was executed and registered by her on the same day under Ext. A. There was actually a gap of one day from the date of execution and registration of the sale deed (Ext. 2), and purchase of stamp paper for cancelling the same deed of conveyance. Intention of the parties as to whether title to a particular property would pass only on payment of the consideration amount or it will pass independent of payment of the consideration amount has to be inferred from the recitals of the document itself. When the recitals of the document are clear and unambiguous on the point of passing of title and payment of consideration, the sole criterion to gather intention of the parties is to depend on the recitals of the document itself. Where there is ambiguity and uncertainty as to the terms of the agreement between the parties concerning their intention, conduct of the parties, surrounding circumstances attending the case and evidence adduced on both sides have to be taken into consideration. As observed by this Court in Ramchandra Bihari Lal Firm v. Mathuramohan Naik, AIR 1964 Ori 239; Gurubari Lenka v. Dulani Thakurani, AIR 1971 Orissa 147; and Umakanta Das v. Pradip Kumar Ray, AIR 1986 Orissa 196: (1986) 61 Cal LT 480, if the term in the sale deed is not ambiguous, then any external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature. If the intention of the parties is clear as found from the recitals, passing of title is in presenti and not kept in abeyance till full payment of consideration. The recitals regarding passing of title, and payment of consideration vide Ext. 2 reads as follows :
'Today of my free-will the scheduled properties are sold and the consideration money will be received after registration at the time of endorsement of registration ticket, and the vendees have been delivered possession and the title has been passed to them as owners. The vendees and their successors in interest would enjoy the property as owners in possession thereof, and get their names mutated in the Revenue records.'
The recital in the sale deed is clear and there is no ambiguity. Therefore, there is no question of any external aid being taken to find out true intention of parties. The translated terms as referred to above, unequivocally indicate that title passed on execution of the deed, and was not dependent upon passing of consideration. The plaintiffs were put in possession of the suit land, after execution of the sale deed (Ext. 2), and title also passed. The conclusions of the learned trial Judge are irreversible.
8. The appeal fails and is dismissed; but in the circumstances without any order as to costs.