Skip to content


Magniram Vithuram Marwadi Vs. Bakubai Rakhma Lohar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 333 of 1911
Judge
Reported in(1912)14BOMLR598
AppellantMagniram Vithuram Marwadi
RespondentBakubai Rakhma Lohar
Excerpt:
.....the lands by collector-creditor compromising with judgment-debtor and paying off judgment-debtor-sale-deed of lands to creditor-attachment ceasing to exist-sale-deed valid after cesser of attachment.;m and his separated brother r, were creditors of the family of the defendants. in execution of his decree r attached the family lands. the execution proceedings were then transferred to the collector. the collector leased the family lands to p. in the meanwhile, m and the defendants came to an agreement whereby m agreed to remit his debt (he being a mortgagee) and to pay off r ; and the defendants agreed to sell him one of the lands. m then obtained possession of the family laids, but he was ejected therefrom by the defendants. he sued to recover possession of the lands. the court of first..........he now sues to recover possession.2. the lower court found that the defendant no. 1 executed the sale-deed in suit and that it was intended to convey the interests of the defendants by way of sale, that there was no fraud, that the sale was binding on the minor defendants, and that the plaintiff was entitled to possession after the expiration of the lease of piraji.3. at the hearing in the district court arguments were confined to the point whether the sale was void. it was admitted that the arrangement as to sale and settlement of the decretal debt was entirely unknown to the collector and that the collector was at the time of the sale exercising his powers under section 325a. the learned district judge holds that upon these facts the sale was in contravention of the provisions of the.....
Judgment:

Basil Scott, Kt., C.J.

1. The facts necessary for the disposal of this case are concisely stated by the District Judge. The plaintiff was a creditor of the family of the defendants. The plaintiff's separated brother was also a creditor. The plaintiff's brother attached the family lands. The matter went in execution to the Collector. The Collector leased the family lands to one Piraji. The plaintiff and the defendants came to an agreement by which the plaintiff agreed to remit his debt he being a mortgagee and to pay off his brother the judgment-creditor, and the defendants agreed to sell him one of the lands. The plaintiff then obtained possession of the family lands from which he was ejected by the defendants and he now sues to recover possession.

2. The lower Court found that the defendant No. 1 executed the sale-deed in suit and that it was intended to convey the interests of the defendants by way of sale, that there was no fraud, that the sale was binding on the minor defendants, and that the plaintiff was entitled to possession after the expiration of the lease of Piraji.

3. At the hearing in the District Court arguments were confined to the point whether the sale was void. It was admitted that the arrangement as to sale and settlement of the decretal debt was entirely unknown to the Collector and that the Collector was at the time of the sale exercising his powers under Section 325A. The learned District Judge holds that upon these facts the sale was in contravention of the provisions of the Civil Procedure Code and that the defendants were incompetent to sell, that the plaintiff's sale-deed, therefore, conferred no title on him and he was not entitled to possession under that sale-deed then or at any future time.

4. There is no doubt that the effect of Section 325A would be to invalidate such a sale as we now have to consider as against a lessee or transferee from the Collector exercising his powers under the Civil Procedure Code : see Ganga Prasad v. Ganga Bakhsh Singh ILR (1907) All. 415. But that does not dispose of the question whether, after the Collector's powers have ceased by reason of the proceedings in attachment being closed, the conveyance of the defendants' interest will not take effect in favour of the purchaser. The statutory provisions bearing upon the point are Section 43 of the Transfer of Property Act: ' Where a person erroneously represents that he is authorised to transfer certain immoveable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property, at any time during which the contract of transfer subsists;' and Section 18 of the Specific Relief Act which provides that where a person contracts to sell certain property having only an imperfect title thereto, the purchaser has the right, if the vendor has subsequently to the sale acquired any interest in the property, to compel him to make good the contract out of such interest.

5. I In the present case it is not disputed that the interest which the sale-deed purported to transfer to the plaintiff was the interest which the defendants had in the lands at the time of the transfer; and this circumstance distinguishes the case from that reported in Gangabai v. Baswant ILR (1909) 34 Bom. 175 and Mussamat Udey Kunwar v. Mussamat Ladu (1870) 6 B L.R. 283 for we are not concerned with any interest other than the interest which the defendants purported to convey. Under these circumstances we think that the defendants, after the incompetence has been removed, could be compelled to make good to the plaintiff the interest which they purported to convey under the sale-deed. In Holroyd v. Marshall (1861) 10 H.C.L. 191 it is stated: ' But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a Court of Equity would compel him to perform the contract, and that the contract would, in equity, f transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired.... For if a contract be in other respects good and fit to be performed, and the consideration has been received, incapacity to perform it at the time of its execution will be no answer when the means of doing so are afterwards obtained.' Upon the same principle a vatandar incompetent without the sanction of Government to mortgage his vatan land has been held estopped as against the mortgagee from denying his title to mortgage, Narayan Khandu v. Kalgaunda Birdar Patel ILR (1889) 14 Bom. 404 and an occupancy tenant incompetent to transfer without the consent of the khot has been estopped from contending that the consent had not been obtained, see Hillaya v. Narayanappa : (1911)13BOMLR1200 .

6. We, therefore, think that we should apply in this case the principle underlying Section 18 of the Specific Relief Act and hold that now that the Collector has ceased to exercise his powers under the attachment, the conveyance by the defendants to the plaintiff must operate.

7. We reverse the decree of the District Court and restore that of the Subordinate Judge with costs throughout upon the defendants.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //