Appu Udayan and Another vs Appavu Goundan

In No. 1890. - The appellants claim as purchasers under a conveyance executed on the 16th May 1892 by the 2nd and 3rd defendants.

The respondent in his written statement charged that the sale in the appellants'' favour was ""fraudulent or for no real consideration"" and also

averred that he, by an oral sale of prior date, had bought the land from the predecessor in title of the paintiffs'' vendors.

The 1st issue tried by the District Munsif is whether the plaint sale is a bona-fide transaction supported by real consideration. It is difficult to

understand what question was really intended to be raised by this issue. It was never alleged that the sale to the appellants was a sham transaction

and, therefore, no question of consideration could be raised. The District Munsif appears to have allowed under this issue the question of public

policy to be raised. He holds that the transaction between the appellants and their vendors was not impeachable on that ground. He also finds that

the sales pleaded by the respondent were not proved. Accordingly he gave a decree for the appellants in the nature of a redemption decree.

In the petition of appeal to the District Judge the main ground of appeal was in language similar to what is used in the written statement and in the

first issue. No objection on the ground of public policy is taken. Nevertheless, the District Judge follows the District Munsif''s example in treating

that as the principal question to be decided. It is rather difficult to understand on what facts he bases his conclusion adverse to the appellants. But

as the respondent''s vakil avowed that he could not support this part of the judgment it is enough to say that we cannot agree in the view expressed

in the 9th para of the judgment. It is obvious that if there was a sale to the appellants the subsequent conduct of their vendors in withdrawing their

claim against the respondent cannot prejudicially affect the appellants. The purchase by the appellants may have been speculative, but there is

nothing to show that it was in the nature of mere trafficking in litigation. There remains the question with regard to the sales relied on by the

respondent which the District Judge hesitated to agree with the District Munsif.

We are asked to send the case back to him for a distinct finding. But on the appellants'' behalf it is objected that the sales could not be valid as

they were not effected by registered instruments.

We think this objection must prevail. All that the alleged vendor had to convey was an equity of redemption. It was not competent to him to

deliver possession of the land. This being so, we think the District Judge was right in this part of the case.

We must reverse the decree of the Lower appellate court and restore that of the District Munsif with costs in this and the Lower appellate court.

We extend the time for the plaintiffs to deposit in court the sum of Rs. 86 to 4 months from this date.