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Bhaskar Gopal and ors. Vs. Padman Hira Chowdhari - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in33Ind.Cas.267
AppellantBhaskar Gopal and ors.
RespondentPadman Hira Chowdhari
Excerpt:
transfer of property act (iv of 1882), section 5 property in possession of tenants - reversion, sale of--registration. - - it is not, however, necessary for me further to consider the authority of this case, because, on another ground, i think that the defendants-appellants must fail......must fail.2. section 54 of the transfer of property act provides that, in the case of tangible immoveable property of a value less than rs. 100, transfer by way of sale may be made either by a registered instrument or by delivery of the property. but the section draws a sharp distinction between tangible immoveable property and a reversion or other intangible thing. the defendants contend that the thing sold to them was the tangible house, which indeed purported to be the object of the sale. but it is clear that the vendor could not sell any higher interest than she possessed, and as at the date of the sale she had transferred possession to the defendants who were in possession as her tenants, i am of opinion that the only interest which remained in the vendor was the reversion.....
Judgment:

Batchelor, J.

1. The suit in which this appeal arises was brought in ejectment, and the plaintiff made title on a registered sale-deed executed to him in 1910 by the widow and daughters of Rama, the original owner of the property. The defendants resisted the suit on the ground that they were tenants of Rama prior to the year 1909 and that in the year 1909 the property was sold to them for Rs. 50 by Rama's widow. Admittedly this sale-deed was not registered, but the defendants' contention was that no registration was necessary, since the value of the property was under Rs. 100. The lower Appellate Court has decided in the plaintiff's favour, relying upon the case of Sibendrapada Banerjee v. Secretary of State for India in Council 34 C. 207 : 5 C.L.J. 390, where a certain parcel of land, having been transferred to the Public Works Department for a sum less than Rs. 100 without any registered instrument, the Secretary of State for India in Council sued the defendants to recover possession of the land, and, upon objection taken that the plaintiff acquired no title to the property inasmuch as the transfer upon which he relied contravened Section 54 of the Transfer of Property Act, the Court held that since the transfer was not made by registered instrument and since the plaintiff had been in prior occupation, there could not be said to have been any delivery of possession within the meaning of Section 54 of the Transfer of Property Act, and the plaintiff consequently acquired no title by the transfer. No specific reasons are, however, given by the learned Judges for this decision, which I have some difficulty in following. It is not, however, necessary for me further to consider the authority of this case, because, on another ground, I think that the defendants-appellants must fail.

2. Section 54 of the Transfer of Property Act provides that, in the case of tangible immoveable property of a value less than Rs. 100, transfer by way of sale may be made either by a registered instrument or by delivery of the property. But the section draws a sharp distinction Between tangible immoveable property and a reversion or other intangible thing. The defendants contend that the thing sold to them was the tangible house, which indeed purported to be the object of the sale. But it is clear that the vendor could not sell any higher interest than she possessed, and as at the date of the sale she had transferred possession to the defendants who were in possession as her tenants, I am of opinion that the only interest which remained in the vendor was the reversion within the meaning of that term as used in Section 54. That, so far as I am aware, is the only interest in the property which remains with a landlord after he has leased the immoveable property to tenants and has made over possession to them. The word is used in this sense in Woodfall's Law of Landlord and Tenant and also in Lord Halsbury's Laws of England, Vol. XVIII, paragraph 766, under the title Landlord and Tenant'. This use is in conformity with the definition contained in Stroud's Judicial Dictionary where a 'reversion' is described as the undisposed of interest in land which reverts to the grantor after the exhaustion of any particular estates, such as an estate for years, or life or in tail, which he may have created.'

3. I think, therefore, that in this case as the sale was in law a sale of a reversion, it could, under Section 54 of the Transfer of Property Act, be effected only by a registered instrument. That being so, there was no legal sale to the defendants and the lower Court was right in decreeing the plaintiff's suit.

4. This appeal, therefore, in my opinion, fails and is dismissed with costs.

Hayward, J.

5. The plaintiff sought to recover possession of certain land as the purchaser from the owner by a registered sale-deed. The defendants alleged that they had been in possession as tenants from the owner and pleaded that they had subsequently on payment of a sum less than Rs. 100 obtained delivery of further possession as owners in virtue of a prior unregistered sale-deed. The plaintiff succeeded in his suit in first appeal, where it was held that the defendants had not received delivery of possession as owners, following the case of Sibendrapada Banerjee v. Secretary of State for India in Council 34 C. 207 : 5 C.L.J. 390, and that without such delivery of possession there could be no valid transfer of ownership by the prior unregistered sale-deed in view of the provisions of Section 54 of the Transfer of Property Act. It has been argued on second appeal on behalf of the defendants that they did receive delivery of possession as owners and, therefore, obtained a valid transfer notwithstanding the invalidity of the attempted transfer by the unregistered sale-deed contrary to the provisions of Section 54 of the Transfer of Property Act.

6. It seems to me important to consider closely what it was that was alleged to have been delivered into the possession, of the defendants. They alleged, as already stated, that they held actual possession of the term or tenancy and pleaded in effect that they had further received a symbolical possession of the interest remaining in their landlord, that is to say, that they had received possession of the reversion. If authority be required for the proposition that that interest was a reversion, reference may be made to Woodfall's Landlord and Tenant passim and Halsbury's Laws of England, Volume XVIII, in paragraph 766. It is plain that actual possession can be given in the case of a term or tenancy to tenants, as that involves transfer of tangible immoveable property. But, on the other hand, symbolical possession alone can be given in the case of the right to possession at the end of the term or tenancy vested in the landlord, i.e., of the landlord's reversion, as that involves transfer of intangible immoveable property. No doubt a valid transfer can be effected for less than Rs. 103 by delivery of actual possession without a registered instrument in the case of tangible immoveable property, But the question here is, whether a valid transfer could be effected for less than Rs. 100 by delivery of symbolical possession without a registered instrument in the case of a reversion or intangible immoveable property. It is not impossible to deliver symbolical possession. Such delivery is familiar in law, and it is difficult to follow the arguments of the learned Judges in the case of Sibendrapada Banerjee v. Secretary of State for India in Council 34 C. 207 : 5 C.L.J. 390. But is such delivery of symbolical possession recognized by law as a valid transfer? That depends on the interpretation of the terms of Section 54 of the Transfer of Property Act.

7. Now a sharp distinction has there been drawn between the mode of transfer of tangible immoveable property and the mode of transfer of a reversion or other intangible thing. Where the property is valued at less than Rs. 100, the transfer of the former, that is to say, tangible immoveable property can be effected either by delivery of possession or by means of a registered instrument. But in the case of the latter, viz., intangible immoveable property, the transfer can be effected solely by registered instrument. No doubt the reason was to avoid unnecessary obstacles in the transfer of unimportant immoveable property where delivery of actual possession would afford patent evidence of the transfer. It was apparently not considered necessary in such cases to insist on the formalities of registered instruments. Where, however, the delivery would be a disputable fact, as where symbolical possession alone would be possible, then apparently it was considered necessary to insist on a registered instrument in the case even of unimportant immoveable property. Here the transfer attempted was a transfer of a reversion or other intangible thing, and although that reversion was valued at under Rs. 100, the transfer could be effected only by a registered instrument. There was in this case no such registered instrument. Therefore, the transfer was invalid by reason of the provisions of Section 54 of the Transfer of Property Act.

8. We ought, therefore, in my opinion, though for somewhat different reasons from those given by the learned Judge of first appeal, to confirm the decision of the lower Appellate Court and to dismiss this second appeal with costs.


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