Skip to content


Munni Kunwar Vs. Madan Gopal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All107; (1916)ILR39All62
AppellantMunni Kunwar
RespondentMadan Gopal
Excerpt:
act no. iv of 1882 (transfer of property act), sections 5, 6, 7 and 127 - minor--validity of transfer in favour of a minor. - - nowhere in the act is it provided that a minor is incapable of being a transferee of property, and as a matter of practice, we are well aware that transfers of immovable property are everyday made to minors......to refer to the nature of the suit. the plaintiff is the daughter-in-law of the defendant. the suit is a suit to recover possession of a house. the house admittedly belonged at one time to the defendant. the house was under attachment in execution of a decree against the defendant. before the sale a deed of transfer was executed by the defendant in favour of the plaintiff. she was his daughter-in-law, and her husband (the son of the defendant) was then alive. it was alleged on behalf of the plaintiff that she paid the purchase money of the house and became the purchaser. it was alleged on behalf of the defendant that the whole transaction was fictitious and that no consideration of any kind over passed. as the result of the finding of the court below on the issue we referred, it is.....
Judgment:

Henry Richards, C.J. and Muhammad Rafiq, J.

1. By our order, dated the 9th of July, 1915, we referred an issue to the court below. The finding on tins issue has now been returned. We think it desirable very shortly to refer to the nature of the suit. The plaintiff is the daughter-in-law of the defendant. The suit is a suit to recover possession of a house. The house admittedly belonged at one time to the defendant. The house was under attachment in execution of a decree against the defendant. Before the sale a deed of transfer was executed by the defendant in favour of the plaintiff. She was his daughter-in-law, and her husband (the son of the defendant) was then alive. It was alleged on behalf of the plaintiff that she paid the purchase money of the house and became the purchaser. It was alleged on behalf of the defendant that the whole transaction was fictitious and that no consideration of any kind over passed. As the result of the finding of the court below on the issue we referred, it is now established that the money was really paid by the father of the plaintiff at the time of the attachment and was duly received by the defendant. There can be no doubt (whether the money actually belonged to the plaintiff or belonged to her father) that the purchase was intended for her benefit. The question is whether under these circumstances the plaintiff was entitled to recover possession of the property, it being borne in mind that at the date of the deed of transfer she was under age. It is contended on behalf of the defendant that the contract for sale of the house was absolutely null and void, and the decision of their Lordships of the Privy Council in the case of Mohori Bibee v. Dharmodas Ghose (1902) I.L.R. 30 Calc. 359 and also the case of Navakotti Narayana Chetty v. Logalinga Chetty (1909) I.L.R. 33 Mad. 312 are relied upon. On the other side the case of Ulfat Mal v. Gauri Shankar (1911) I.L.R. 33 All. 657 and also the case of Raghunath Baksh v. Haji Sheikh Muhammad Baksh (1915) 18 Outh Cases 115 are relied upon. Section 5 of the Transfer of Property Act defines 'transfer of property' as an act by which a living person conveys property to one or more other living persons, or to himself and one or more living persons. Section 6, Clause (h), of the same Act sets forth the class of transfers of property which cannot be made. It does not state that a transfer cannot be made to a minor. Section 7 provides that every person competent to contract and entitled to transferable property is competent to transfer such property. Nowhere in the Act is it provided that a minor is incapable of being a transferee of property, and as a matter of practice, we are well aware that transfers of immovable property are everyday made to minors. Section 127 by necessary implication shows that a person who is not competent to contract may be the donee of immovable property, and that even in the case of property burdened with an obligation if after he has become competent) to contract and aware of the obligation he retains the property he becomes bound. It seems to us that the argument on behalf of the defendant amounts to this that the present suit to recover possession of the house must be regarded in exactly the same way as if the plaintiff was bringing a suit for specific performance of a contract, In our opinion it ought not to be so regarded. It could hardly be said, if it was shown beyond all doubt that the father of the plaintiff entered into a contract for the sale of this property and instead of taking the conveyance himself had directed the vendor to execute the conveyance in favour of his daughter, that she would not be entitled to recover possession. This in all probability was exactly what happened in the present case, but even if we assume on behalf of the defendant that it was the girl herself who entered into the contract and that it was her money which was paid to the defendant, it can make no difference. As soon as the defendant received the purchase money and executed the conveyance the plaintiff became entitled to the possession of the property. Very different considerations would arise if after having agreed to sell the property the defendant before receiving the price had refused to execute a conveyance and the plaintiff was driven to a suit for specific performance. In such case the plaintiff would have to set up the contract. In our opinion the decision of the court below and also of the learned Judge of this Court were not correct. We accordingly allow the appeal, set aside both the decrees of the courts below as also the decree of the learned Judge of this Court and decree the plaintiff's claim with costs in all courts.


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