Sadasivam Pillay vs Ramadasse Padeatchy and Another

Anantanaeayanan J.

In this Special Civil Appeal, instituted before us by one Sadasivam Pillay, as a pourvoi en cassation, the following facts will be sufficient for an

elucidation of the actual order that we propose to make, in the light of the very full arguments that have been submitted before us by learned

Counsel.

One Dr. Muruguessin, who is also represented in this proceeding by learned Counsel, executed a document in favour of a certain Ramadasse

Padeatchy on 27th April 1958 which briefly recited that Dr. Muruguessin undertook to sell and convey the properties specified as items 1 and 2,

for a sale consideration of Rs. 8,650 as agreed to between the parties, of which an advance of rupees seven hundred was paid that day by the

vendee to the vendor. The document was signed by Dr. Muruguessin and two witnesses, viz., A. Delafore and Krishnaswami. Admittedly, the

vendee Ramadasse-padeatchy was not a signatory to this document.

On 12th May 1958, the vendee, Ramadasse Padeatchy, deposited this agreement, as provided for by the Civil Code of France, before the

Notaire, one Sri J. Rajendrin. On 16th May 1958 the deed was transcribed in a formal manner. Two days before, on 14th May 1958, itself, Dr.

Muruguessin sold the same properties to Sadasivam Pillay (Appellant) for Rupees ten thousand and that document was registered on 21st May

1958, and transcribed on 24th May 1958. The present writ of Distraction to annul the sale in favour of Sadasivam Pillay (Appellant) was instituted

by Bamadasse Padeatchy on 16th June 1958.

The Tribunal Premiere de Instance dismissed the action. The main ground was that the agreement relied upon by Bamadasse Padeatchy, dated

27th April 1958 was what is termed in French Law as an unilateral agreement, which created no right in the concerned immovable property unless

there had been an acceptance. For this reason, the Court of the first instance held that the sale in favour of Sadasivam Pillay (Appellant) could not

be questioned. There was an appeal to the Tribunal Superieur d'' Appel. It seems to be unfortunately true that the appeal was somewhat restricted

in scope, and, in the manner in which it was presented. We are convinced, from a study of the record, that several important grounds of the French

Processual Law, all of which were not merely relevant but vital to the present situation, were not pressed in that form before the Tribunal Superieur

d'' Appel, and, apparently, were not kept in mind and dealt with by that Tribunal in disposing of the appeal before it. The short ground accepted by

the Tribunal was that if, as the first Court had held, the document was an unilateral private deed of sale, it need not be in double or multiple,

original, as contended for on behalf of the Appellant. Further, the document itself evidenced, as we have earlier observed, a payment of advance

which was acknowledged by the vendor Dr. Muruguessin. According to the Superior Court of Appeal, this constituted an acceptance, and thus

rendered this unilateral agreement a complete sale. Since this was a complete sale, and the transcription of it was anterior to the second deed, the

Tribunal allowed the appeal in favour of Ramadasse Padeatchy (Respondent). The aggrieved party, Sadasivam Pillay has instituted this appeal

before us.

The matter is somewhat intricate, and, as we observed earlier, several provisions of the French Processual Law, which do not even appear to

have been cited and pressed before the Superior Court of Appeal, have to be interpreted and applied in the proper disposal of the subject-matter

of the present appeal. But, our powers as a Court of Cassation to entertain any ground of law, even though such ground of law might hot have

been dealt with by the Superior Court of Law are not in dispute. Further, the very situation presented by the facts involves those grounds, and they

cannot be considered exterior to the facts in any sense. The following analysis of the real legal situation will make it clear why we have been

constrained to allow this appeal to the extent of setting aside the decree of the Superior Court of Appeal, and of remitting the entire appeal for

fresh disposal in the light of the comments made in this judgment.

It is clear from a study of the provisions of the French Civil Code, that a promise of sale is itself equivalent to a sale, when there is the consent of

both the parties over the price and over subject-matter of the sale. This is covered by Article 1589. The law makes it clear that the promise of sale

is not subject to any particular written form (Dalloz Article 293). It could even be an oral transaction. Again, it is not in dispute that, under the

French Law, if the situation here is that there is a promise of sale but no sale in, actuality, parallel to what might be termed an executory agreement

of sale under the law familiar to our Courts, that promise would nevertheless inhibit Dr. Muruguessin from dealing afresh with the property. But a

vendee like the Appellant, if he be a vendee for valuable consideration without notice of the earlier contract, would be permitted to validly

purchase as in our system of law. Hence, the situation can be interpreted upon two broad alternatives. Either we have here only a valid promise of

sale, though it may be coupled with receipt of an advance by the vendor, and no sale in actuality, or we have a complete and valid sale. In the

former situation, it is essential for the Superior Court of Appeal to determine if Sadasivam Pillay (Appellant) could plead any rights in protection of

his subsequent sale, as a bona fide vendee for valuable consideration without notice of the earlier contract. This matter does not at all appear to

have been investigated, in this form by the Superior Court of Appeal.

With regard to the alternative just referred to by us, that the document is itself a complete sale, the situation might appear to be heavily in favour

of the Respondent, since the French Law does not require any particular form of conveyance, or even a written conveyance, to effect a sale of

immovable property. But, Articles 1102 and 1103 of the Code Civil make it clear beyond doubt that this document is really bilateral in character;

that interpretation of it is not in dispute before us. It is bilateral because the contracting parties, as evidenced by the document, are under an

obligation reciprocally towards each other. When there is such a bilateral agreement of sale embodied in a document, and this is a private

conveyance (we must make it clear that we are not at all dealing, in this case with a public registered conveyance under the French Law, which

attracts different formalities altogether), the authorities specify that such a private bilateral document of sale must be in as many originals as there

are parties. There is the requirement which may be briefly characterised as the condition of duplicate or multiple originals. It is not necessary to set

forth here the relevant Articles, and, no doubt, they will be cited and relied on by learned Counsel during the re-hearing of the appeal.

Not merely is it essential that a bilateral document of sale should not be a single document signed by one party alone such as the vendor in this

case, but should at least be duplicate (or multiple) so that the vendee is also a party thereto; but, the law further seems to provide that such a

document becomes effective as a document of sale not merely on deposit with a Notaire, as was actually done in this case, but subject to the

stipulation that both parties must combine in making the deposit. That does not appear to have occurred, as far as we can judge, in the present

case. If that has not occurred, the question arises whether this bilateral document of sale, for which there is only a single document and which was

not. executed in duplicate or multiple originals, has become an effective deed of sale, when the deposit with the Notaire was only by one of the

parties. Hence, the following points arise for determination in this appeal:

(i) Is the transaction relied upon by the parties merely a promise to convey by Dr. Muruguessin, even though it may be coupled with the

acknowledgment of advance, and not a sale at all? If it is merely a promise to sell, which would be equivalent to an executory contract of sale, is

the Appellant, the subsequent vendee, protected, as a matter of fact, by his being a bona fide purchaser for value without notice of the earlier

contract?

(ii) Treating the document otherwise, and, assuming that it is a bilateral document of sale, is it valid when it is engrossed only as a single original

signed by Dr. Muruguessin alone, and is not in duplicate or multiple originals, to which both the parties have affixed signatures? Learned Counsel

for Dr. Murugessin contends that Dr. Murugessin was justified in treating this document as a contract of sale, in the performance of which there

was a breach by the vendee, because of the failure to pay the balance of sale amount within the time agreed upon between the parties. How far is

this true, if at all, and could Dr. Muruguessin validly resile from this document on the ground of the alleged breach, and convey the property to

another person like the Appellant? We need not here point out that the Tribunal Superior d'' Appel may be constrained, in the interests of justice,

to hear learned Counsel for Dr. Muruguessin on this point, and also to record his evidence.

(iii) Apart from the document, can the Respondent rely upon the facts as amounting to valid sale of the property in his favour, even as an oral sale,

which would clothe him with rights superior to the subsequent vendee?

(iv) What are the facts of the transcription or registration of the two respective documents, in the juxtaposition of the dates, and, how far do those

facts justify an argument that the document relied on by the Respondent became effective as a sale, and thereby rendered invalid the document in

favour of the Appellant executed later?

In dealing with these points, as we observed earlier, the Tribunal Superior d'' Appeal should not merely analyse the relevant provisions of the

French Code Civil and Articles and commentaries of standard authors as Daloz, as well as the Jurisprudence on the subject, but should also furnish

its conclusions in the form of a reasoned judgment, giving the process of reasoning and with a discussion of the authorities cited. Upon one point of

the issues framed above, oral evidence may be necessary and it may be recorded within the discretion of the Superior Court of Appeal. The

Superior Court of Appeal which disposes of this appeal should be composed differently (autrement compose) from the Court which originally

disposed of the appeal under the French Law. The interim order that we have made in Civil Miscellaneous Petition No. 8455 of 1963 will enure

for the duration of the proceedings hereafter, till the disposal of the appeal, subject to such further orders as the Superior Court of Appeal may be

called upon to make in the matter within the due ambit of its powers. The costs will be provided for in the ultimate decree of the Superior Court of

Appeal in the light of the result.