James vs Y. Davidson

Mohan, J.—The Appeal arises out of O.S.No.75 of 1981, in which the respondent-plaintiff had strangely obtained a decree in his favour. The reason why we say strangely obtained a decree'' in his favour will be evident on out narration, of the facts. The said suit is for declaration that the plaintiff is in possession of the suit property as OWNER (emphasis applied) in pursuance of the oral sale by the defendant in his favour and also for an injunction restraining the defendant from executing the decree for eviction in H.R.C.No.33 of 1980 on the file of the court of the District Munsif, Nagercoil. The averments in the plaint are as under: The plaint schedule property originally belonged to the defendant. He is none other than the son of plaintiff's mother's sister. On 1-4-1969, the defendant orally sold the plaint schedule property to the plaintiff. The sale consideration is Rs. 1,04,000/-. He handed over possession of the suit property. On and from that date, the plaintiff alone was in enjoyment of the property as owner. He has been paying the Municipal tax in the name of the defendant. On the very date of oral sale, namely, 1-4-1969, out of the sale consideration of Rs.1,04,000/- a sum of Rs.79,000/- was paid in cash. With regard to the balance of Rs.25,000/-, it was agreed between them that the plaintiff, who was paying the chit subscriptions of the defendant to the foreman Sivaraman from October 1968, onwards, should pay the remaining instalments also in the name of the defendant and discharge the liability of the defendant. As regards this payment of Rs.79,000/-, the defendant represented that the payment need not be reflected in the accounts of the plaintiff, as the defendant will have trouble with the income tax department and therefore he requested that the entries to be made for the accounting year 1973-74 and 1974-75. In spite of the repeated requests and demands made to the defendant to execute the sale deed, he had been postponing the same. However, with ulterior motive he filed H.R.C. No.33 of 1980 before the learned Additional District Munsif, Nagercoil, taking advantage of the non-execution of the sale deed and prayed for eviction, as though the plaintiff was a tenant under the defendant. The plaintiff filed in that case a counter, raising the same allegations as have been raised in the plaint. However, the Rent Controller, not with standing his back of jurisdiction, passed an order of eviction. Against the same, H.R.A.No.6 of 1981 was preferred, but the same was dismissed. It is under these cirumstances, the suit for the above prayer. In the written-statement of the defendant, it is contended that the alleged oral sale is false. The plaintiff cannot claim title to the suit property under oral sale. Nor again it is correct to state that the defendant gave possession to the plaintiff in pursuance of the said oral sale. The defendant had rented out the suit property to the plaintiff on a monthly rent of Rs.400/- on 1-10-1968. Subsequently, the rent was raised to Rs.500/- from 1-4-73. The plaintiff got possession of the suit property as lessee on 1-10-1968. The defendant is the owner. The patta stands in his name. The title deeds are with the defendant. He alone has been paying tax. It is incorrect to contend that the plaintiff has paid the subscriptions concerning the chit transaction to the Foreman Sivaraman from October 1968. No such arrangement was entered into. The payment of Rs.79,000/- is false. Nor was there any occasion to request the plaintiff to postpone the entry of this amount to the accounting year 1973-74 and 1974-75. The rent control proceedings were validly instituted and rightly the Rent Controller passed an order of eviction. That is pending in appeal. No injunction can be granted from executing the order of the Rent Controller, which was well within its jurisdiction. On these pleadings, the following issues were framed for trial. (1) whether defendant orally sold the plaint property to the plaintiff?

(2) Whether the plaintiff is in possession as owner of the property or as a lessee?

(3) Whether the oral sale in favour of plaintiff is supported by consideration?

(4) Whether the oral lease alleged by the defendant is true?

(5) Whether the plaintiff is entitled for declaration to title and possession over plaint property?

(6) Whether proper court fee paid?

(7) Whether plaintiff is entitled for the injunction prayed for?

(8) What relief plaintiff is entitled?

The learned Sub-Judge, on a consideration of oral and documentary evidence, which consists of P.Ws.1 and 2 on the side of the plaintiff as well as Ex. A-1 to A-24 by way of Documentary evidence; on the side of the defendant D.W.I. the documentary evidence being Ex. B-1 to B-32, came to the conclusion that the oral sale was valid; the payment of Rs.79,000/- was sure; consequently the order of eviction made in H.R.C.No.33 of 1980 would not affect the plaintiff's possession. Thus all these issues were answered in favour of the plaintiff. On issue No.5 he came to the conclusion that the plaintiff was entitled to the declaration and possession over the suit-property in pursuance of the oral sale. This was also answered in favour of the plaintiff. On issue No.6, it was held that the plaintiff has paid proper court fee. On issue No.7, the injunction, as prayed for, was granted, answering the same in favour of the plaintiff. Consequent to these findings, on issue No.8, it was held that the plaintiff was entitled to succeed and the suit was decreed with costs as prayed for. Thus the appeal.

Mr. R. Sundararajan, learned counsel for the appellant, urges the following points in favour of the appellant: In law, there cannot be an oral sale, where such a sale requires to be made in writing and to be registered. Secondly, no amount, as alleged by the plaintiff, was ever paid. First of all, the account books were not kept in the regular course of business, as required under S.34 of the Evidence Act, because on the alleged date on payment on 1-4-1969, there is no entry in the account books, but the entries are found in the later years of 1973-74 and 1974-75 (accounting years). They cannot reflect the position as alleged by the plaintiff. Therefore, they are false. Therefore, looked at from either point of view, the accounts will have to be discredited. Lastly it is urged that any plea to defraud the Revenue will be hit by S.23 of the Contract Act. In support of this proposition, the learned counsel relied on Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, and also Ananda Behera and another v. State of Orissa And Another 59 L.W. 873 (S.C.): AIR 1956 B.C. 17., to the effect that oral sales of immovable properties worth of more than Rs.100/- are invalid in law.

In opposition to this, Mr. K. Sengottian learned counsel for the respondent, would urge that in the very ruling, relied on by the Court below in Subbiah Iyer And Another v. Pichiah Pillai And Others 1974 1 M.L.J. 132, observations are found that there would be no justification to interfere with the finding if there was an oral sale of hypothecation. It was on this basis, the Court below proceeded to hold, on the evidence on record, that an oral sale could be valid. The payment is fortified by the entries in the account books. It is only to suit the wishes of the defendant the payment of Rs.79,000/- made on 1-4-1969 came to be entered later for the accounting year 1973-74 or 1974-75. Therefore, no blame could be attached to the same. If this was in agreement between the parties, the question of application of S. 23 of the Contract Act would not arise.

For our part, all the other contentions relating to S.34 of the Evidence Act or S.23 of the Contract Act could be left out of discussion, in view of what we propose to say below and therefore we pose only one point for our determination and that is ''whether the oral sale dated 1-4-1969 of the immovable property of the value of Rs.1,04,000/- is valid in law.

In the beginning of the judgment, we had remarked that strangely the plaintiff had obtained the decree''. What we mean by this is the law of property, as contained in the Transfer of Property Act, if only had been gone through property, such a serious mistake as this would not have been committed by the learned Sub-Judge. No doubt, the men at the Bar may argue, going for the extremes, but it is the duty of the Court to clear the cobwebs of law and lay down the correct law. This is where unfortunately the court below has completely misled itself. What it should have done is to look at S. 9 of the Transfer of Property Act. We extract that section below: 9. A transfer of property may be made without writing in every case in such a writing is not expressly required by law.

This is a case of sale. Therefore, S. 54 of the Transfer of Property Act will be attracted. That section reads as follows:

54."sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Such 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 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.

On a conjoined reading of both these sections, it will be clear that the learned Sub-Judge had not even cared to peruse the fundamentals of law; instead he tried to draw support from a case, which did not even decide this question, namely, Subbiah Iyer and Another v. Pichiah Pillai and Others 1970-1 M.L.J.132. Passing an observation like this cannot enable him to lay down the law as he purported to lay down. Then again, his attention was drawn to another judgment of one of us in Veerappa Rounder v. Pattabhiraman and another 82 L.W. 439 = 1981 T.L.N.J.248. Normally, we would expect the Judge to go through and find out the ratio of that ruling. That he did not care to. We do not criticise him merely because he did not do so, but it is so fundamental a law as to how could anyone overlook such a fundamental proposition, is the one which causes surprise in us. Even though, no authority is required in view of the emphatic language of S. 9 of the Transfer of Property Act suffice for us to refer to one Full Bench Judgment of this Court reported in Madam Pillai v. Badrakali Ammaf and Another 15 L.W. 464 (F.B.): 1922 I.L.R.45 Madras 612. and the weighty observations of Chief Justice Sir Walter Salts Schwabe at page 616, where the learned Chief Justice remarks as follows:

By the transfer of Property Act, S. 9 a transfer of property may be made without writing in every case in which a writing is not expressly required by law'' and therefore, one has to look at the rest of the Act to see whether writing has been expressly required by law for such a transaction as this. Apart from the question of gift, the only sections which it is claimed could apply are S. 54 and 118. S. 54 relates to sales, a sale being defined as a transfer of ownership in exchange for price paid or promised.

The again, in Ananda Behera and Another v. State of Orissa and Another 59 L.W. 873 (S.C.): A.J.R. 1956 S.C. 17. at page 19 in paragraph 11 it it was held thus:

The ''sales'' in this case were oral: there was neither writing nor registration. That being the case, the transaction passed no title or interest and accordingly the petitioners have no fundamental right that they can enforce.

It will follow, therefore, that a oral sale of a tangible immovable property of the value of more than rupees one hundred is invalid in law. In this case, it is a tangible immovable property, the value being Rs. 1,04,000/- and therefore no title could pass under the oral sale set up by the plaintiff. The contrary finding of the learned Sub-Judge exhibits his ignorance of the law. Therefore, we do not have the slightest hesitation in holding that the judgment of the learned Sub-Judge is a perverse one. Consequently, we hereby set aside the same. However, a request is made by Mr. K. Sengottian, learned counsel for the respondent, that in so far as the respondent is in possession of the property, he would at least be entitled to the relief of injunction. We are afraid that we cannot grant even this relief, because paragraph 2 of the plaint runs as follows:

The defendant on 1-4-1969 orally sold the plaint schedule property to the plaintiff for a consideration of Rs.1,04,000/- (Rs. One lakh and four thousand) and handed over the possession of the plaint schedule property to the plaintiff and from that date onwards plaintiff is in possession and enjoyment of the property as owner (emphasis applied).

The relief of injunction is as owner or qua-owner. When once we have held that no title could pass under an oral sale, the question of upholding his possession as owner will not arise. Therefore, that request is denied to the respondent. In view of the above, we also vacate the other findings.

Accordingly, we set aside the judgment and decree of the Court below and dismiss the suit. The Appeal is allowed with costs.