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Desaibhai Jorabhai Vs. Ishwar Jeshing - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 680 of 1918
Judge
Reported in(1920)22BOMLR764; 57Ind.Cas.447
AppellantDesaibhai Jorabhai
Respondentishwar Jeshing
DispositionAppeal allowed
Excerpt:
.....price and went into possession. subsequently, the owner sold the same property under a registered sale-deed to the defendant, who had notice of the first sale before the deed was registered. the plaintiff having sued: -;that the plaintiff was entitled to get a registered sale-deed from the owner on the basis of the oral sale. - - therefore there was an obstruction to his getting a good title from dola, and if in spite of his knowledge that there was that obstruction he got his sale-deed registered, it is quite clear that his title cannot prevail against desaibhai. but whether there was an agreement to sell that could be specifically enforced, or a sale without a document which was required to make it effectual at law, it appears to me that if dola gave possession to desaibhai and..........and on whatever ground the suit may have been [based, if he had filed a suit to get a registered sale-deed, i have no doubt the court would have made an order compelling dola to execute a sale-deed in his favour. after the oral sale to desaibhai, and after desaibhai had been put in possession, dola sold to ishwar. before the sale-deed to ishwar was registered, desaibhai put in a petition before the sub-registrar stating that he was in possession, and asking the sub-registrar to refuse to register the sale-deed to ishwar. therefore ishwar had distinct notice of the sale to desaibhai, and of the fact that desaibhai was in possession. therefore there was an obstruction to his getting a good title from dola, and if in spite of his knowledge that there was that obstruction he got his.....
Judgment:

Norman Macleod, Kt., C.J.

1. These are companion appeals in two suits which arose out of one Dola Nana selling certain property first to one Desaibhai and then to one Ishwar. The sale to Desaibhai was oral, and therefore, the property being worth more than Rs. 100, Desaibhai obtained no title to the property, but he got possession, and on whatever ground the suit may have been [based, if he had filed a suit to get a registered sale-deed, I have no doubt the Court would have made an order compelling Dola to execute a sale-deed in his favour. After the oral sale to Desaibhai, and after Desaibhai had been put in possession, Dola sold to Ishwar. Before the sale-deed to Ishwar was registered, Desaibhai put in a petition before the Sub-Registrar stating that he was in possession, and asking the Sub-Registrar to refuse to register the sale-deed to Ishwar. Therefore Ishwar had distinct notice of the sale to Desaibhai, and of the fact that Desaibhai was in possession. Therefore there was an obstruction to his getting a good title from Dola, and If in spite of his knowledge that there was that obstruction he got his sale-deed registered, it is quite clear that his title cannot prevail against Desaibhai. That question or a very similar one was decided before us in Second Appeal No. 672 of 1917. It may be a question whether the transaction between Dola and Desaibhai must be treated as a sale, or , merely as an agreement to sell, the consideration passing and the possession being given. But whether there was an agreement to sell that could be specifically enforced, or a sale without a document which was required to make it effectual at law, it appears to me that if Dola gave possession to Desaibhai and received consideration from him, Desaibhai would be entitled to get a registered sale-deed from Dola, unless after the original transaction a third party had obtained a better title. In this case there is no such third party. So I think that the plaintiff Desaibhai was entitled to succeed in his suit against Dola. Dola must be directed to execute a proper sale-deed with respect to the property. The plaintiff Ishwar must fail, and really there is no equity in his favour in this case. If there is any equity at all it exists in favour of Desaibhai who had paid his money for the property, and spent money on the property, and now has run the risk of losing it, whereas Dola would get the purchase price from two purchasers. The plaintiff Ishwar will not be a loser because it is expressly provided in the sale-deed that if he is obstructed in getting possession under his sale-deed, then he can have resort to Dola. The appeal, therefore, in Suit No. 680 will succeed. There will be a decree for the plaintiff with costs throughout. The appeal by Desaibhai in Suit No. 726 will also succeed, and that suit will be dismissed with costs throughout.

Heaton, J.

2. The principal fact found is that there was what is called an oral sale of the property in suit by Dola to Dosaibhai. In pursuance of this sale Desaibhai was placed in possession of the property and the price was paid, or some arrangement was made equivalent thereto. The first Court held on these facts that Desaibhai was entitled to have a regular sale-deed executed. The Court of Appeal took the view that because there was no agreement for passing a regular and formal sale-deed, therefore Desaibhai was not entitled to obtain a sale-deed. What happened was, as I have said, that there was what is called an oral sale. Whether when this matter was arranged orally between the vendor and the purchaser, the vendor used the expression 'I sell' or words equivalent thereto; or used the expression 'I agree to sell' does not seem to me to really matter; especially as the form of words used in the conversation between the parties has not been precisely determined. The Court of First Appeal decided that it would not order a deed to be executed, not however because it was shown that there was not an agreement to sell; but because it was not shown that there was an agreement to execute a deed. Plainly however there was a contract between them, although it may not have eventually taken the legal shape which the law requires. It seems to me that if we regard it as an agreement by which the vendor let it be understood that he was soiling the property, then it may properly be taken to comprise 'an agreement to sell.' It seems to me, therefore, that we must not adopt this singularly fine distinction; that if the vendor said 'I agree to sell H,' then be was bound; and if he said 'I sell,' he was not bound; and that Desaibhai is entitled to obtain a sale-deed from the vendor. The parties made a mistake, they thought that an oral sale was valid, but in legal effect an oral sale is no more than an agreement to sell. The other argument urged is that Dola, the vendor, subsequently sold the same property to somebody else. But it appears that that somebody else had notice; that Desaibhai claimed to have bought the property, and was in possession of it. The lower appellate Court, it is true, found as a fact on the evidence that this other person had no notice. But quite clearly, as it seems to me, the Judge there was thinking of notice before the execution of the sale-deed which Dola passed to this other person. But It appears from the judgment of the trial Court, and it is not here denied, that this other person actually had notice at the Sub-Registrar's office before his document was registered. As we have already held in a previous case that is a sufficient notice in a case of this kind, I agree, therefore, that both the appeals should be allowed and an order should be made as proposed by my Lord the Chief Justice.


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