JACOB LAZARUS CHELLY v. DOKKA SAMUEL — 1995 DIGILAW 261 (KAR)

H. N. TILHARI, J. ( 1 ) PLAINTIFF-RESPONDENT in the second appeal, under Order 47, Rule 1 of the Code of Civil Procedure, from the judgment and decree dated 14th august, 1991, delivered by Sri Justice Murlidher Rao (now retired) in regular second appeal No. 90 of 1983, whereby, the Hon'ble single judge allowed the second appeal filed by the 1st defendant, who is opposite party in this review application and set aside the lower appellate court decree, decreeing the plaintiffs suit and restored the judgment and decree of the trial court dismissing the plaintiff-petitioner's suit for declaration of titie and possession. ( 2 ) THE facts of the case in brief are that the plaintiff-respondent, i. e. , applicant, filed against the defendant-appellant, i. e. , the present opposite party suit for declaration of title that plaintiff is the owner of suit properties and for decree for possession of the property in suit and for a sum of Rs. 1,600/- as mesne profit (past) and for future mesne profits. The plaintiff alleged that the suit properties belonged to him and he had been the owner thereof, after having purchased suit properties under a registered sale deed dated 23rd september, 1969, and on the basis of his title acquired under the strength of the sale deed dated 23-9-1969, he did put the constructions. According to the plaintiffs case, the suit properties are plot nos. 183 and 184 in r. s. No. 62/b/2 bearing c. t. s. No. 162, keshavapur measuring with four tenements thereon. Plaintiff claimed to be the owner. ( 3 ) ACCORDING to the plaint case, r. s. No. 62/b/2, in the aforesaid village was the agricultural land measuring 3 acres and that was. Purchased from its owner in 1959 in the name of plaintiff, g. Rajarao and ranga swami. This agricultural land was converted into non-agricultural user and was laid out into non-agricultural plots which were distributed and allotted among persons who had contributed in the purchase of land. ( 4 ) PLOT nos. 183 and 184 were allotted to defendant 1, who expressed inability to put up the construction and offered to dispose of these plot nos. 183 and 184 to plaintiff-applicant, who was in need of plots for construction of building. ( 5 ) THE plaintiffs case that under the supervision of defendant, plaintiff started construction on both the plots with defendant's consent. 183 and 184 to plaintiff-applicant, who was in need of plots for construction of building. ( 5 ) THE plaintiffs case that under the supervision of defendant, plaintiff started construction on both the plots with defendant's consent. Defendant agreed to supervision work on payment of Rs. 1,000/- and the plaintiff provided the funds needed for the construction purpose to the tune of Rs. 14,000/- as accounted for by defendant. ( 6 ) THAT the defendant 1, on 23-6-1969, executed the sale deed as agreed of the plot nos. 183 and 184 conveying said plots to plaintiff for sale consideration of Rs. 395/- after the plaintiff and two other persons had executed the sale deed in favour of defendant 1 on 10-1-1969. The plaintiff-applicant's case is that four tenements had been constructed with the funds of plaintiff and thus, plaintiff-applicant to be the owner of suit plots and construction thereon. The tenements as per plaint case had been let out to the four tenants. The plaintiff's case further has been at later stage, some difference arose between plaintiff and defendant. ( 7 ) THE defendant (op) finding 1st tenament vacant illegally and unauthorisedly trespassed therein and occupied the same and won over other tenants to his side. The plaintiff as per plaint allegations initially filed o. s. No. 1150 of 1973, for injunction directing the defendant-appellant from illegally continuing in the premises. In that suit, defendant put certain untenable pleas including the one that the registered sale deed was executed by way of security and the trial court dismissed that suit taking the view that proper remedy for plaintiff was the suit for declaration of title and possession. That as such, need for the present suit for declaration and possession did arise. The plaintiff asserted in para 7 of the plaint, the defendant did not have any title, right or interest and he illegally had recovered rent for sixteen months aggregating to Rs. 1,600/ -. ( 8 ) THE defendant contested the suit and denied the plaintal legations. The defendant in his written statement asserted that suit plots bearing nos. 183 and 184, were purchased by the answering defendant (op) vide sale deed dated 10-1-1969. 1,600/ -. ( 8 ) THE defendant contested the suit and denied the plaintal legations. The defendant in his written statement asserted that suit plots bearing nos. 183 and 184, were purchased by the answering defendant (op) vide sale deed dated 10-1-1969. That defendant intended to complete residential building thereon, but, did not have sufficient funds needed for the purpose, so, approached the plaintiff for monetary help and the plaintiff agreed to advance the money to the tune of Rs. 7,000/- or more as necessary provided the defendant executed a sale deed in his, i. e. , plaintiffs favour by way of security and 1st defendant allowed the plaintiff to recover rent from the tenants by way of interest. Bearing full faith on plaintiff, defendant did execute the registered deed of sale dated 23-9-1969 which was never intended to be acted upon. It was executed as security for the repayment of loan or money advanced. Building on above plots was constructed by defendant with financial assistance advanced by plaintiff. Plaintiff has got no title, interest or gith in the building nor in land as deed dated 23-9-1969, was executed as security deed for money advanced as assistance and was not binding and effective as a sale deed. It was amongst other pleas asserted that suit was liable to be dismissed as plaintiff is not the owner of building nor was entitled to get the decree claimed. ( 9 ) THE learned trial court framed the following:1. Whether the 1st defendant proves that he executed the sale deed dated 23-9-1969, in favour of the plaintiff only as a security for the loan?2. Whether the plaintiff proves that he has entrusted the supervision of construction to 1st defendant?3. Whether plaintiff proves that he is the owner of the suit property?4. Whether the 1st defendant proves that he is the owner of the suit property?5. Whether defendant 4, is a necessary party to the suit?6. Whether the plaintiff is entitled to possession of the suit property?7. To what mesne profits, if any, is the plaintiff entitled to?8. To what compensatory costs, if any, is the 1st defendant entitled to?9. Whether the valuation of the suit for the purpose of court fee and jurisdiction is proper? Whether defendant 4, is a necessary party to the suit?6. Whether the plaintiff is entitled to possession of the suit property?7. To what mesne profits, if any, is the plaintiff entitled to?8. To what compensatory costs, if any, is the 1st defendant entitled to?9. Whether the valuation of the suit for the purpose of court fee and jurisdiction is proper? ( 10 ) IN respect of issue No. 1, the trial court held that it is not open to 1st defendant to contend that he has executed the sale deed - ex. P-1, as security for loan, that defendant 1, has proved that ex. P-l - sale deed was not intended to be acted upon and was not acted upon. It further held that defendant 1 has proved to be the owner of the property. That finding of the trial court that the deed was not intended to be acted upon was based on its view that no consideration was paid before the registrar. The trial court on the basis of findings recorded by it, dismissed the suit. ( 11 ) FEELING aggrieved from the judgment and decree of the trial court dismissing the plaintiff's suit, the plaintiff preferred the first regular appeal and the lower first appellate court allowed the appeal, set aside the trial court's judgment and decree and decreed the plaintiffs suit as prayed. The 1st appellate court held that the finding recorded by the learned munsiff, that this deed was not intended to be acted upon was not correct. The lower first appellate court held that ex. P-l dated 23-9-1969, was an out and out sale. The lower appellate court further recorded the finding that the plaintiff is the owner of the super structure and the same was constructed at his costs, and the lower appellate court set aside the contrary findings recorded by the trial court. Feeling aggrieved from the judgment and decree of the lower first appellate court, the defendant preferred the second appeal No. R. s. a. No. 90 of 1983. That second appeal was heard by this court's honourable Mr. Justice murlidher rao, and it was allowed. The learned single judge held that plaintiff was not the owner of the property and the sale deed ex. P-1, cannot be considered as sale conveying rights, title and interest by the 1st defendant, in favour of plaintiff. That second appeal was heard by this court's honourable Mr. Justice murlidher rao, and it was allowed. The learned single judge held that plaintiff was not the owner of the property and the sale deed ex. P-1, cannot be considered as sale conveying rights, title and interest by the 1st defendant, in favour of plaintiff. The learned single judge further opined that though no doubt, in the sale deed, it has been stated that the sale consideration of Rs. 395/- is paid, but, plaintiff has failed to prove and establish by cogent evidence as to when this amount was paid and as such the sale is without due payment of consideration, so, ex. P-1 is not a valid sale deed as payment of consideration has not been sufficiently proved. He further held that in view of the circumstances of the case and from the evidence in the form of answers of the plaintiff and 1st defendant, it is clear that relationship between the parties was not that of a vendor and vendee, but, that of a creditor and debtor and that the deed dated 23-9-1969 ex. P-1, cannot be taken and considered to be the sale deed passing on the title in favour of the plaintiff. With these findings, the learned single judge allowed the appeal and set aside the judgment and decree of the lower appellate court. The hon'bale judge appears to have relied on the contention of the 1st defendant that the document was executed as security and relationship between the parties was of debtor and creditor. ( 12 ) THAT feeling aggrieved from the judgment and decree of this court passed by hon'ble murlidher rao, j. , the plaintiff preferred an application under Order 47, Rule 1, C. P. C. for review of the judgment and decree passed by this court in the second appeal. ( 13 ) ON behalf of the applicant-plaintiff, it was contended by Sri C. B. Srinivasan, learned counsel for the plaintiff, who was the respondent in the second appeal that the learned single judge committed the error of law apparent on the face of record by holding the deed ex. ( 13 ) ON behalf of the applicant-plaintiff, it was contended by Sri C. B. Srinivasan, learned counsel for the plaintiff, who was the respondent in the second appeal that the learned single judge committed the error of law apparent on the face of record by holding the deed ex. P-1, dated 23-9-1969, not to be the sale deed, but, to be a deed of security or mortgage as well as in holding that the sale deed was invalid, because, irrespective of the fact in the deed, as regards payment of sale consideration, it is mentioned that Rs. 395/- has been paid as sale consideration, but, there is no reliable or cogent or sufficient evidence to prove time of payment of sale consideration, i. e. , as to when it was paid and nor is there any endorsement of the registrar that the opposite party defendant 1, that is, appellant in the second appeal had received the sale consideration earlier and as payment is not proved, so, the sale deed in absence of proof of sale consideration is invalid. Sri Srinivasan, the applicant's counsel urged that this finding is also vitiated by error of law apparent on the face of record. The learned counsel for the applicant in this connection made a reference to the provisions of Section 54 of the transfer of property ACT and Section 58 (c) thereof. The learned counsel also made reference to two decisions of the Supreme Court, namely, the case State of Kerala v. Cochin Chemical Refineries Limited and referred to paragraph 5, thereof. He further invited my attention to the decision of this court in the case of G. Hampamma v. Kartigi Sajjivalada Kalingappa and others. On the basis of these decisions, Sri Srinivasan, learned counsel submitted that as the concept of consideration has been there and that the consideration to the tune of Rs. 395/- as mentioned in the deed was paid, but, if the court came to the finding that it was not paid, the sale deed or a deed of conveyance or a deed of transfer would not become illegal or void. 395/- as mentioned in the deed was paid, but, if the court came to the finding that it was not paid, the sale deed or a deed of conveyance or a deed of transfer would not become illegal or void. Sri Srinivasan, learned counsel further submitted that recourse had been open to parties to realise that amount by adopting the remedies provided by law, but, that will not render the deed illegal or invalid or void and as such, Sri Srinivasan, further submitted that the learned single judge committed error of law or a error of law apparent on record in setting aside the finding of the first appellate court to the effect that the deed ex. P-1 was a sale deed and in holding that it was not a sale deed. Sri Srinivasan, laid great emphasis on the ruling of Karnataka High Court in the case of 6. Hampamma, supra, given by Sri Justice Murlidher Rao, that is, the same judge, who had decided the present second appeal, subsequent thereto. Sri Srinivasan, submitted that the error of law apparent on record crept in the judgment of the learned single judge on account of these decisions, one is of the Supreme Court and the other is of this court in g. Hampamma's case, having escaped the notice of the learned judge. Sri Srinivasan, submitted that there is an error apparent on record, it might have been on account of mistake of the counsel or failure of the counsel to bring these decisions to the notice of the learned judge, but, mistake on the part of the learned counsel for the appellant, would not minimise the error apparent on record. That the learned counsel for the appellant, further urged that transfer of property Act, provides for transfers of various natures like lease, sale, mortgage, gift etc. , and classifies the mortgages into mortgages of various natures. Referring to Section 58, as he further submitted that in view of Section 58 (c) and proviso thereto of the transfer of property Act, the document in question could never be deemed to be a mortgage deed or deed of mortgage or security for loan. , and classifies the mortgages into mortgages of various natures. Referring to Section 58, as he further submitted that in view of Section 58 (c) and proviso thereto of the transfer of property Act, the document in question could never be deemed to be a mortgage deed or deed of mortgage or security for loan. That if the sale was as a security for return of the money or return of property, then in that case, the sale and agreement to reconvey are to be incorporated in one deed, but, if the terms agreed are incorporated in two different documents, then, it could not be deemed or considered to be mortgage. In this connection, the learned counsel referred to the decision of the Supreme Court in Chunchun Jha v. Ebadat Ali and another. Sri Srinivasan, submitted that no oral evidence would be looked into which could have the effect of varying the terms and conditions of the deed, nor could any evidence be given which may be having the effect of introducing the oral agreement which is contradictory in itself or contrary to the terms of the written document. That as such the learned single judge committed error of law apparent on the face of record in deciding the second appeal, allowing the same, setting aside the judgment and decree of the lower first appellate court. ( 14 ) ON behalf of the opposite parties (i. e. , the appellants in the second appeal), the case was argued by Sri U. L. Narayana Rao, the learned senior Advocate assisted by Sri I. G. Gachchinamath, an Advocate of this court submitted, that the present review application is not maintainable. He submitted that the review application is not an appeal in disguise. The scope of the jurisdiction of the court under Order 47, Rule 1, the learned counsel for the 1st defendant submitted, is very narrow and limited and every error is not to be corrected. He submitted thereby that, it is only in cases which are covered by the language of Order 47, Rule 1, the court has got power to review its judgment, decree or Order, and not otherwise. He submitted thereby that, it is only in cases which are covered by the language of Order 47, Rule 1, the court has got power to review its judgment, decree or Order, and not otherwise. The learned counsel for the opposite party, i. e. r 1st defendant-appellant further submitted that it is not a case of discovery of new material or evidence, so the review application alleged to have been made wrongly on the error not apparent on the face of record. Sri Rao, made a reference to the decision of the Supreme Court in M/s. Thungabhadra Industries Limited v. Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur and submitted that there is a distinction between error of law simpliciter or an error simpliciter and an error apparent on the face of record. He further submitted that where error can be pointed out by elaborate arguments and there is possibility of two opinions on the matter of law or fact, or in other words, two opinions can be formed in respect of a matter, then that cannot be said or termed to be a case of error apparent on record or "error of law apparent on the face of record. That in the present case, the case though not conceded as a case of error, but, if there is any error, that can be termed to be an error either of fact or error of law, and that, it is not a case of patent error apparent on record entitling the court to review its decision or to say to review the decision given earlier by this court. That the learned counsel Sri Rao, urged that in view of the facts of the case and the case as pleaded by defendant 1 and brought on record, the single judge held that the deed was executed as security for payment of money and the finding recorded by learned single judge that sale consideration has not been proved to have passed to the vendor, and, that the sale was not intended to be acted upon as sale, but, it was a security and relationship between the plaintiff and defendant was not that of a creditor and debtor and the learned single judge did not commit any error in holding like that, submitted by the learned counsel for the applicant-plaintiff, in view of the provisions of Section 92, proviso 1, of Evidence Act. Sri Rao made a reference to the decision of the Supreme Court in Smt. Gangabai v. Smt. Chhabubai, and invited my attention to para 11 thereof in particular. Sri Rao, lastly submitted that even if there is any error of law, but, same cannot be termed to be error apparent on the face of record. ( 15 ) I have applied my mind to the contentions made by learned counsel for the parties. Before proceeding to deal with the respective contentions of the learned respective counsels for both the parties, it will be profitable to make a reference to the provisions of Order 47, Rule 1 of the code. Order 47, Rule 1 of the code reads as under:"rule 1. Application for review of judgment. Before proceeding to deal with the respective contentions of the learned respective counsels for both the parties, it will be profitable to make a reference to the provisions of Order 47, Rule 1 of the code. Order 47, Rule 1 of the code reads as under:"rule 1. Application for review of judgment. (1) any person considering himself aggrieved, (a) by a decree or Order from which an appeal is allowed, but from which no appeal has been preferred; (b) by a decree or Order from which no appeal is allowed; or (c) by a decision on a reference from a court of small causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or Order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) a party who is not appealing from a decree or Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. Explanation. The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment". ( 16 ) A perusal of Order 47, Rule 1 per se reveals that an application for review of judgment is maintainable in cases which satisfy the following conditions: that the decree or Order which is based on the judgment from which appeal is allowed, but, no appeal has been preferred or where the decree or Order is such from which no appeal is allowed. Then, the applicant in either of the following conditions or circumstances can apply for review: (A) where a discovery of a new and important matter or evidence has been made, which matter or evidence after exercise of due diligence was not within the knowledge of the party applying for review or could not be produced by him at the time, the decree or judgment was passed. (b) in cases where decision is alleged and shown to be suffering from some mistake or error apparent on the face of record. (c)or where any other sufficient reason exists for the same and on account thereof, the applicant desires to obtain the review of the judgment and decree. The expression "other sufficient reasons" has been interpreted to mean other sufficient reasons analogous and akin to the grounds specified in sub-rule (1) to Rule 1 of Order 47, as has been held in Chhajju Ram v. Neki and others and Bisheshwar Pratap Sahi and another v. Parath Nath and another. ( 17 ) IN the present case, it has to be examined whether the judgment given in the above second appeal requires to be reviewed and can be reviewed as per the yardsticks of the provisions of Order 47, Rule 1, C. P. C. ( 18 ) ON behalf of the applicant as mentioned earlier, it has been contended that ex. P-1 sale deed 23-9-1969, has been held to be illegal and invalid altogether and to be inoperative to pass on the title to the vendor, as passing of the consideration has not been proved according to the trial court and the learned single judge committed error of law apparent on the face of record holding as above. The learned single judge has taken the view that no doubt in the sale deed it has been mentioned that the sale consideration of Rs. 395a has been paid, but, there is no other cogent evidence to indicate that it has been so paid and it is on this ground, passing of the consideration having not been proved, sale deed is invalid, as passing of sale consideration is an ingredient to complete the sale transaction. 395a has been paid, but, there is no other cogent evidence to indicate that it has been so paid and it is on this ground, passing of the consideration having not been proved, sale deed is invalid, as passing of sale consideration is an ingredient to complete the sale transaction. The learned counsel for the applicant-plaintiff has contended that this view of the learned single judge suffers from error of law apparent as it runs counter to Section 54 of the transfer of property ACT and has been arrived at without taking note of the earlier decision of this court given in g. Hampamma's case, and the Supreme Court decision in cochin chemical's case, supra. ( 19 ) SECTION 54 of the transfer of property Act, reads as under: 54. "sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such a transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value of less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs; in possession of the property. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. ( 20 ) IN the case of g. Hampamma, Hon'ble murlidher rao, j. , i. e. , the Hon'ble judge of this court observed as under:"to constitute a sale, ownership has to be exchanged for price paid or promised to be paid or partly paid and partly promised. Therefore, future payment of price does not arrest the passing of title made by a registered instrument. If the parties so contract, it might be postponed till payment of full consideration. In the absence of contract, the title gets conveyed as soon as the document with the stipulation of consideration is registered". Therefore, future payment of price does not arrest the passing of title made by a registered instrument. If the parties so contract, it might be postponed till payment of full consideration. In the absence of contract, the title gets conveyed as soon as the document with the stipulation of consideration is registered". ( 21 ) THE learned judge in paragraph 15 of its judgment further observes:"for every sale, price must be paid. The fact that there can be no sale without a price does not lead to the conclusion that the intention was to pass title only after the price is paid. As definition stands, price can be promised or paid at a later date also". ( 22 ) IN the case of cochin chemical, their lordships of the Supreme Court dealt with a similar problem in the case of transaction of the deed of mortgage. Their lordships observed in paragraph 2 of that judgment that it is common ground that amount acknowledged in the indenture was not advanced at the date of the indenture and was never advanced thereafter. In that case, it was argued that because the amount was not advanced by the state to the company, the mortgage was void and not effective in law. The company could not enforce the contract relating to groundnut cake agreed to be purchased by the state, for the obligation undertaken was in consideration of loan of Rs. 2,50,000/- and arose only when loan was advanced. ( 23 ) THEIR lordships of the Supreme Court observed as under:"but, the assumption that if the state did not advance the loan which it had undertaken to advance, the indenture was ineffective cannot be accepted. There is no such express term in the deed, and none can be implied from covenants and the surrounding circumstances. The transaction of mortgage formally executed does not become void or ineffective, merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. If without advancing the amount agreed to be advanced, he sues on the title created under the deed of mortgage, the court will not award him a decree for non-grant what has advanced. But, that is not to say that mortgage is invalid. In Tatia v. Babaji, Furran, CJ. , observed: "i am not, however. . . . . If without advancing the amount agreed to be advanced, he sues on the title created under the deed of mortgage, the court will not award him a decree for non-grant what has advanced. But, that is not to say that mortgage is invalid. In Tatia v. Babaji, Furran, CJ. , observed: "i am not, however. . . . . prepared to assent to the train of thought which puts conveyances of lands in moffussil perfected by possession or registration where consideration expressed in conveyance to have been paid has not in fact been paid in the same category as contracts void for want of consideration"". ( 24 ) SIMILAR observations were made by Allahabad High Court in Rashik Lal v. Ramnarain, where, karamat hussain, j. , observed at page 276:". . . . Mortgage under transfer of property ACT is a , transfer of interest in the land mortgaged, and not a mere contract. It, therefore, follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in a mortgagee notwithstanding the fact that mortgaged money has not been paid by the mortgagee to the mortgager, the mere non-payment of the mortgaged money cannot have the effect of rendering the mortgage invalid". ( 25 ) SULAIMAN, J. , in Dip Narain Singh v. Nageshar Prasad and others, observed that:"once a document transferring immovable property has been registered, the transaction, passes out of the domain of a contract and into one of conveyance. Such a completed transaction would be governed by provisions of transfer of property ACT and only so much of the contract ACT as are applicable thereto". ( 26 ) IN the case of dip narain singh, supra, which has been referred with approval by their lordships of the Supreme Court in the case of cochin chemicals, sulaiman, j. , has been pleased to observe as under:"a mere contract to mortgage or sell would not amount to an actual transfer of any interest in the immovable property (section 64 of the Transfer of Property Act), but, a deed of sale or mortgage if duly registered would operate as conveyance of such interest. Once the document of sale or mortgage has been registered, the transaction passes out of the domain of a mere contract into one of a conveyance". Once the document of sale or mortgage has been registered, the transaction passes out of the domain of a mere contract into one of a conveyance". mukerji, j. , in the same case had been pleased to observe as under:"but, in case of a transfer of property which has been completed in the manner directed by law (e. G. , by execution of a registered deed attested or unattested as the case may be), the title to or an interest in the property has passed to the transferee and there is nothing to enforce". at page 7 of that judgment in the same case, mukerji, j. , further observes:"on principle, there is no difference between a sale and a mortgage and by both an interest is transferred from one party to another. Such transactions are to be considered having regard to the law enacted in Transfer of Property Act. . . . . ". ( 27 ) A reading of these cases, namely, the single judge's judgment of this court in g. Hampamma's case, and that of their lordships of the Supreme Court in the case of cochin chemical and the decisions of the Bombay and Allahabad high courts referred above with the approval by their lordships of the Supreme Court lead me to hold that it is well-settled principle of law as laid down by the apex court of the country that a deed of transfer of immovable property whether by sale or mortgage which has been executed according to law and has been registered, becomes operative to pass on the title and the property from transferor to the transferee, namely, from the vendor to the vendee or the like, and further even if in a deed, where, it is mentioned that consideration expressed in the conveyance has been paid, but, as a matter of fact, it has been found that it has not been paid, does not render the transaction to be void for want of consideration. Really, once the transferring of immovable property has been done by a registered document, transaction becomes complete and effective and the passing of title or interest is not postponed, even till the future date of payment, until and unless there is an express covenant or term to that effect, in the deed, agreed between the parties. Really, once the transferring of immovable property has been done by a registered document, transaction becomes complete and effective and the passing of title or interest is not postponed, even till the future date of payment, until and unless there is an express covenant or term to that effect, in the deed, agreed between the parties. It appears to me that if these cases would not have escaped the notice of the learned judge deciding second appeal, he would not have taken the view in this case, that is, in the second appeal giving rise to this review application that deed or transaction was illegal or invalid for want of proof of actual payment of sale consideration mentioned in the sale deed. If the consideration has not been paid, then it is always open to the vendor to realise the consideration by legal means. The decision given by the learned judge holding the transaction to be invalid on account of its having found that payment has not been proved appears to me to be suffering from doctrine of per incuriam as well as the mistake or error apparent on the face of record as the view of the learned single judge runs counter to the law settled by the Supreme Court in the case of cochin chemical, as mentioned above and appears to have arrived at in ignorance of the Supreme Court decision. The transactions of sale or conveyance of immovable property executed by registered deed according to law cannot be put in the category of illegal and void contracts for want of consideration, in case, it is found that the consideration mentioned, in the deed, to have been paid, has not been proved as paid. It had been contended that this was not the error of the court itself, but, it was an error on the part of the counsel or the counsel concerned failed to bring these authorities to the notice of the court at that time. In my view, when the error is apparent and decision of the learned bonnie judge with all due respect runs counter to the decision of the settled law of land as observed by the Supreme Court, it can be said and categorised to be as the one which is suffering from error of law apparent, requiring it to be reviewed. In my view, when the error is apparent and decision of the learned bonnie judge with all due respect runs counter to the decision of the settled law of land as observed by the Supreme Court, it can be said and categorised to be as the one which is suffering from error of law apparent, requiring it to be reviewed. Whether error has occurred in the findings of judgment of the court either on account of mistake of the counsel or failure of the counsel to place latest decision of the supreme. court as well as that of Karnataka High Court itself or it was on account of any mistake due to ignorance of the court would not minimise the error. When I so opine, I find support from the view expressed by the federal court in the case of mt. Jamna Kuer v. Lal Bahadur and others, in which paragraph 8 is very material which reads as under:"the mistake as to the items of property regarding which mt. Jamna kuer's case, supra, had laid claim is apparent on the face of the record. The trial judge had clearly stated in his judgment that jamna kuer's case, claim related to properties 3 to 37 of the gazette notification. In para 15 of her amended objection petition, she had laid claims to all these properties left by kunj behari. On 29th april, 1942, it was admitted by the pleader of the applicants that all these properties related to the estate of kunj behari and that so far as the debtors were concerned, they were owners of only two properties mentioned in the gazette notification. In this situation, it would have been appropriate if the High Court had corrected this error on the review petition and saved the appellant the trouble and expense of an appeal to the privy council or to this court. Whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the court was not a circumstance which could affect the exercise of jurisdiction of the court to review its decision. We have no doubt, that the error was apparent on the face and in our opinion the question as to how the error occurred is not relevant to this enquiry". ( 28 ) AS regards the deed ex. We have no doubt, that the error was apparent on the face and in our opinion the question as to how the error occurred is not relevant to this enquiry". ( 28 ) AS regards the deed ex. D-1 in the present case itself, perse does not show by any of its terms that the passing of interest or title in the property had been postponed, instead, it is provided that vendor by this deed transfers and conveys the absolute ownership of the property. It shall provide that the open site or the plot described in the schedule, the vendee shall hold, possess and enjoy free from any mortgage, pledge, loan, charge or encumbrances, as a full owner without any obstruction or interference from the vendor or any person claiming through him. So, per se the deed as per terms thereof unambiguously appears to be a sale deed. This deed does neither contain any term in writing in it to indicate that the property transferred is a security and the transfer of interest thereunder is suspended, nor does it provide that after the repayment of the alleged loan, the property will stand or be reverted or be reconveyed. No such term is contained therein. The learned counsel for the respondent submitted before me that there was an understanding and oral agreement between the parties which they reached among themselves and that deed had to operate as a mortgage deed for securing the repayment of the amount of loan advanced by plaintiff relating to all money spent or furnished for construction of the buildings, but, learned counsel for the respondent very fairly submitted that there was no such agreement in writing, but, it was an oral understanding, and the oral evidence could be looked into and therefore, the learned single judge and the courts below considered that evidence of oral agreement or understanding that transaction in question would be security for the money as mentioned earlier. I am afraid that in view of the fact that the deed containing transaction and transfer is there which is required to be in writing as well as registered. The oral evidence which has the effect or bearing on or as to the terms of the contract or grant or conveyance is not permissible and not admissible in view of sections 91 and 92 of the Indian Evidence Act. The oral evidence which has the effect or bearing on or as to the terms of the contract or grant or conveyance is not permissible and not admissible in view of sections 91 and 92 of the Indian Evidence Act. Apart from that, the transfer by way of mortgage is conceived under the law of the transfer of property ACT in which the mortgages have been defined in Section 58 of the Transfer of Property Act. In the case of chunchun jha, supra, their lordahips of the Supreme Court laid it down as under:"if the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the converse does not hold good, that is to say the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. The legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intent the transaction to be sale, unless they displace that, that presumption by clear and express words; and if the conditions of Section 58 (c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage". ( 29 ) IN the present case as I mentioned earlier, there is neither any clause in the deed to the effect that the transaction has been a mortgage by conditional sale, as there is no condition for retransfer nor do there exist any provisions that the executant shall pay the money within 2 years or the like and on account of the failure of the counsel to bring this fact and the Supreme Court decision to the notice of the learned single judge, the error crept in judgment which is apparent in itself, as otherwise, learned single judge would definitely have followed the principles laid down in this case with regard to construction of a document as mortgage or sale and the principle for interpretation of such documents which reads as under:"where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are expressed and clear, the effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what parties intended or meant, but, what is the legal effect of the words which they used". ( 30 ) THUS considered, in my opinion, the error of law apparenton face of the record has crept in the judgment of this court, may be on account of mistake of counsel or otherwise reason for error apart, anyhow, error is apparent and therefore, the decision requires to be recalled. The deed ex. D-1, per se appears to be the sale deed, but, questions otherwise that had been raised may be considered when the hearing of the appeal is restored after recalling the order. The deed ex. D-1, per se appears to be the sale deed, but, questions otherwise that had been raised may be considered when the hearing of the appeal is restored after recalling the order. It is no doubt, correct and as urged by Sri Rao, that if error can be pointed out by lengthy arguments and two opinions are possible, then, it may not be apparent on the face of record, but, in the present case in view of the settled principle of law as referred above by the Supreme Court itself and the decision being contrary thereto and the decision, having been arrived without considering those cases, in my opinion, requires that the review application be allowed as the case is one of error apparent on record and failure to take notice of the decision of their lordships of the Supreme Court as referred above and that of this court. ( 31 ) THUS considered and keeping in view the law laid down in the case of A. R. Antulay v. R. S. Nayak and another, the application for review is allowed. The judgment and Order dated 14-8-1991, passed in regular second appeal No. 90 of 1983, is hereby recalled. Let the regular second appeal be restored to its number and be listed for hearing afresh and it will be open to the appellant to challenge the validity of the sale deed on any ground, if it is covered by his pleadings. --- *** --- .