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Madhavrao Moreshvar Vs. Kashibai Dattubhau - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 420 of 1908
Judge
Reported in(1910)12BOMLR9
AppellantMadhavrao Moreshvar
RespondentKashibai Dattubhau
Excerpt:
transfer of property act (iv of 1882), sections 56(6)(b), 123 - sale-gift-transfer of property-consideration in shape of services rendered or to be rendered-grant of assessment-registraton act (iii of 1877), section 17.;the plaintiff sued to recover arrears of assessment. the defendant claimed exemption from assessment under two documents which released him from the payment, and which were passed by a predecessor-in-title of the plaintiff by way of reward for services which the defendant had rendered or was expected to render him. the documents were neither stamped nor registered. the lower appellate court treated the transaction as one of sale and applying section 56 (6) (b) of the transfer of property act, 1882, ordered the plaintiff to pay what the court calculated to be the..........as such, containing an admission of the relinquishment. no doubt the effect of the grant of the right to assessment leviable on the dhara holding was that the owner of the right, so far as he was concerned, relinquished it in favour of his grantee; but all the same it was a transfer of the right. the fact that the grantee of the right happened in the present case to be the person liable to pay the assessment was a mere accident. after the grant he could hold and deal with the right separately from the dhara holding. he could sell or mortgage or transfer by way of gift the latter right, reserving to himself the former. it was a transfer of the right to assessment by sarvottamrao to the respondents as a bounty or reward for services rendered and to be rendered. such a transfer cannot be.....
Judgment:

Chandavarkar, J.

1. Both the lower Courts have held that the documents, on which the respondents relied in support of their case, were in the nature of a sale of immoveable property of the value of more than Rs. 100, and that, as those documents were not registered as required by Section 54 of the Transfer of Property Act and by Section 17 of the Registration Act, the respondents had not acquired the right to exemption from assessment which they pleaded in defence to the appellant's claim. But ' sale,' as defined in Section 54 of the Transfer of Property Act, is 'a transfer of ownership in exchange for a price paid or promised or part paid or part promised.' And, as held by a Full Bench of three Judges of this Court in Samaratmal v. Govind (1901) I.L.B. 25 Bom. 696 : 3 Bom. L.R. 384, the word ' price' is used in the sections relating to sales in the Transfer of Property Act in the sense of money. In the present case, it is found by the Courts below that the consideration for the transaction relied upon by the respondents consisted of services which they had rendered to the appellant's predecessor in title in the past and which they were to render in future. Such a consideration cannot be regarded as ' price'. The consideration, even if it could be assessed in money value, is vitiated by the fact that it is vague and uncertain as to future services. It is true that in his deposition the first respondent (defendant No. 1) states that he had rendered assistance to the Inamdar Sarvottamrao in certain suits, and that he had lent him monies from time to time. But there is no evidence to show that the remission of assessment by Sarvottamrao was in consequence of any contract of sale between him and the respondents and that the consideration for the contract moving from the latter was the price calculated at the money value of the services which they had rendered and the loans which they had lent to Sarvottamrao. The documents relied upon by the respondents in support of their right to exemption from assessment make it quite clear that, as a reward for the services which the respondents had rendered and were expected thereafter to render to him, Sarvottamrao made a grant of the assessment to the respondents. The rendering of the services was not the consideration but merely the motive of the grant.

2. The transaction, on a proper construction of the document, must be regarded as one of gift, not sale. It was a gift of Sarvottamrao's right to the assessment of the dhara, which the respondents held, and such a right has been regarded as nibandha in Hindu law. Morbhat v. Gangadhar Karltare ILR (1883) 8 Bom. 234. It is immoveable property. Venkaji v. Shidramappa (1894) I.L.B. 19 Bom. 663, and Madhavrao v. Jagannath (1889) P.J. 75. There can be no gift of immoveable property except by a registered instrument, signed by or on behalf of the donor and attested by at least two witnesses. (Section 123 of the Transfer of Property Act.) There being no such instrument in support of the respondents' title, the right they have set up in answer to the appellant's claim must be negatived.

3. But it was urged before us by their learned pleader that the transaction, evidenced by the documents relied upon by the respondents in support of their rights, was in the nature of a relinquishment by Sarvottamrao of his right to the assessment leviable on the dhara holding; that, as such, it could be proved by the anujnyapatra (Exhibit 30) which did not require registration, since it was not a deed of transfer but was an order addressed by Sarvottamrao to his own officers, and, as such, containing an admission of the relinquishment. No doubt the effect of the grant of the right to assessment leviable on the dhara holding was that the owner of the right, so far as he was concerned, relinquished it in favour of his grantee; but all the same it was a transfer of the right. The fact that the grantee of the right happened in the present case to be the person liable to pay the assessment was a mere accident. After the grant he could hold and deal with the right separately from the dhara holding. He could sell or mortgage or transfer by way of gift the latter right, reserving to himself the former. It was a transfer of the right to assessment by Sarvottamrao to the respondents as a bounty or reward for services rendered and to be rendered. Such a transfer cannot be made except in the manner provided by the Transfer of Property Act.

4. That being the legal aspect of the transaction, Section 55, Clause 6, Sub-clause (b), which relates to a sale, has no application here.

5. The decree of the Court below must be varied by striking out from it the direction as to the payment by the plaintiff of Rs. 1,092-13-0 within one month from the date of the decree. In other respects the decree is confirmed. The respondents to pay to the appellant the costs of this second appeal.


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