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Malik Mohammad Shujaat Wali Khan Vs. Mt. Salim Jahan Begam and anr. - Court Judgment

LegalCrystal Citation
Subject Property;Civil
CourtAllahabad
Decided On
Reported inAIR1949All204
AppellantMalik Mohammad Shujaat Wali Khan
RespondentMt. Salim Jahan Begam and anr.
Excerpt:
.....or declarations of trust were intended by the legislature to come within one of the headings 'sale',exchange' or 'gift' in the transfer of property act,'and thatprice means not only money in current coin, but includes money due on a prior debt, and words 'price paid' will cover cases where the vendor's claim for the receipt of the price is satisfied by giving him what he accepts as tantamount to such payment. ) and can no longer be held to be good law. was even stronger in the language which he used for the word 'price'.his view was that a trained english lawyer would never use the word 'price',unless it be to cannot something other than the perfectly familiar phrase 'valuable consideration' and in his opinion the word 'price' was put into the section to connote something different..........as laid down by sulaiman j. there is no question here in this case of any prior debt. the kharch-i-pandan allowance was not in arrears. the transaction related to future payments and the agreement under the kharch-i-pandan was for life. the duration of one's life being uncertain, future payments could not be ascertained. apart from this no evidence was produced on behalf of the appellant that the lady vendee had in lieu of her right to an allowance of rs. 100 per month for kharch-i-pandan agreed to substitute a capitalised sum of rs. 14,400 on the basis that it represented the allowance which she would get in 12 years. in other words, there is no evidence that 12 years were substituted for life as the basis of calculation for the capitalised value of kharch-i-pandan. i am satisfied that.....
Judgment:

Sapru, J.

1. This is a plaintiff's appeal. It arises out of a suit for pre-emption under the Agra Pre-emption Act, 1922, (Act XI of 1922).

2. The pre-emptor, Malik Mohammad Shujaat Wali Khan and the vendor, Malik Mohammad Zulfiqar Wali Khan are brothers. Malik Mohammad Zulfiqar Wali Khan's wife is Mt. Salim Jahan Begam. It is alleged by the pre-emptor that on the 20th September 1943 Malik Mohammad Zulfiqar Wali Khan executed a sale-deed with respect to his share in three villages in lieu of kharch-i-pandan in favour of his wife. The sale consideration shown in this document was Rs. 14,400. It is on the basis of this sale-deed that the plaintiff brought a suit out of which the present appeal has arisen. The trial Court dismissed the suit on the ground that the transaction was in the nature of an exchange and did not amount to a sale as defined in Section 54, Transfer of Property Act, read with Section 4(10), Agra Pre-emption Act. The short question, therefore, in the case is whether the transaction of the 20th September 1943, was a sale or some other form of transfer. Learned Counsel for the appellant has argued that the view of the learned Civil Judge that the transaction amounted to an exchange is erroneous in law as kharch-i-pandan is neither a maintenance allowance nor exactly what would be regarded as pin-money in English law. kharch-i-pandan, he urges, arises out of a contractual relationship and is not transferable, being personal in nature. For this reason he contends that it cannot be the subject-matter of an exchange. He has invited our attention to the observations of their Lordships of the Privy Council on the nature of kharch-i-pandan in the case of Khwaja Muhammad Khan v. Husaini Begum 32 ALL. 410. In that case the Right Hon'ble Mr. Ameer Ali, who delivered the judgment of the Board, observed that:

Although there is some analogy between this allowance and the pin-money in the English system, it appears to stand on a different legal footing, arising from difference in social institutions. Pin-money, though meant for the personal expenses of the wife, has been described 'as a fund which she may be made to spend during the coverture by the intercession and advice and at the instance of the husband.' Their Lordships are not aware that any obligation of the nature is attached to the allowance called kharach-i-pandan. Ordinarily, of course, the money would be received and spent in the conjugal domicile, but the husband has hardly any control over the wife's application of the allowance, either in her adornment or in the consumption of the article from which it derives its name.

3. The meaning of the expression 'kharch-i-pandan' was further considered in the case of Altaf Begam v. Brij Narain : AIR1929All281 . It was held in that case by Sulaiman and Kendall, JJ., that kharch-i-pandan was a personal allowance and it was for that reason not transferable. We do not dispute the correctness of the law laid down by Sulaiman and Kendall JJ. We are in view of the nature of the allowance called kharch-i-pandan satisfied that the learned Civil Judge was not correct in holding the transaction to be one of exchange. Exchange is defined in Section 118, Transfer of Property Act, which we quote below:

When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an exchange.

It is Obvious that it was not possible for the vendee, Mt. Salim Jahan Begam to transfer the ownership of her kharch-i-pandan which was in the nature of a personal allowance and, there being no mutuality about the transaction, we hold that the learned Civil Judge was wrong in describing it as being in the nature of an exchange. This, however, does not dispose of the question.

4. The second point which we have to consider is whether the transaction' amounted to a sale. Reliance has been placed by learned Counsel for the appellant upon the terms of the sale-deed. In the sale-deed the price for which the property was being sold is described as being Rs. 14,400. It is urged that in view of this recital it was for the respondent to show that this sum of Rs. 14,400 did not represent a capitalised value worked out on the basis of 12 years' allowance of kharch-i-pandan. Learned Counsel for the appellant, however, maintains that the sum of Rs. 14,400 was mentioned as the sale consideration in order to provide a basis for the calculation of the stamp duty payable on the transaction. He has referred us to the evidence of two witnesses who were produced on behalf of the defendants. The first of these witnesses is Tufail Ahmed who stated:

When the document was written no price had been settled or entered in the document. At the time of registration defendant 2 said that some sum be entered as sale consideration otherwise sub-registrar would object.

The second witness produced by the defence was Ram Charan Lal who stated:

No cash price was agreed. The figure of Rs. 14,400 in the body of the sale-deed and the note at the bottom of Rs. 14,400 was entered subsequently. I fixed amount of kharch-i-pandan for purposes of stamp.

There is no evidence on the side of the plaintiff to rebut the defendant's contention that Rs. 14,400 was an arbitrary figure which had been fixed for purposes of stamp duty payable on registration of the document. There is no rebutting evidence on the side of the plaintiff appellant to show that any capitalised amount was agreed upon by the parties and that the sum of Rs. 14,400 represents that capitalised amount. Apart from this we very seriously doubt whether such capitalised value relating to an allowance payable in the future for life could be capitalised on the basis suggested by the plaintiff appellant.

5. We have held that the transaction was not an exchange. We proceed to consider the question whether it can be regarded as a sale. Obviously if it is not a sale, the plaintiff appellant would have no right to pre-empt the property under the Agra Pre-emption Act. Sale is defined in Section 54, Transfer of Property Act as:

A transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

6. The definition of sale given in the Transfer of Property Act has been made applicable to transactions under the Agra Pre-emption Act by Sub-section (10) of Section 4, Agra Pre-emption Act (Act XI [11] of 1922).

7. Learned Counsel for the appellant has relied on the case of Ariyaputhira Padayachi v. Muthukomaraswami Padayachi A.I.R. (1) 1914 Mad. 489 in which it was held by Sadasiva Ayyar J. that:

All transfers by conveyance, if they are not settlements or declarations of trust were intended by the Legislature to come within one of the headings 'sale', 'exchange' or 'gift' in the Transfer of Property Act,' and thatprice means not only money in current coin, but includes money due on a prior debt, and words 'price paid' will cover cases where the vendor's claim for the receipt of the price is satisfied by giving him what he accepts as tantamount to such payment.

8. This case was considered by a Full Bench of the Madras High Court-Madam Pillai v. Badrakali Ammal reported in A.I.R. (9) 1922 Mad. 311 (F.B.) and can no longer be held to be good law. In the Full Bench case Schwabe C.J. quoted with approval the definition of price given in the commentaries on the Transfer of Property Act by Shephard and Brown, p. 175. That definition which is vital for deciding whether the transaction is or is not a sale is that:

'Price' includes money only, for if the thing given in exchange for land consists of goods and not money, there is no sale but an exchange. A transfer not made in exchange for a money consideration, e.g., a transfer made in pursuance of a compromise of a family dispute, would not be a sale, and might be altogether outside the provisions of the Act.

Coutts-Trotter J. was even stronger in the language which he used for the word 'price'. His view was that a trained English lawyer would never use the word 'price', 'unless it be to cannot something other than the perfectly familiar phrase 'valuable consideration' and in his opinion the word 'price' was put into the section to connote something different and something more limited, that is money.

9. We were referred by learned Counsel for the respondent to the definition of price to be found in Bouvier's Law Dictionary and we quote below that definition:

'Price': the consideration in money given for the purchase of a thing.

10. We were also referred by learned Counsel for the respondent to the definition of sale and price in Benjamin's learned book on sale, p. 3, Edn. 6. We quote from that book:

So in relation to the element of price. It must be money paid or promised, according as the agreement may be for a cash or a credit sale; but if any other consideration than money be given, it is not a sale. If goods be given in exchange for goods, it is a barter.

11. We note that the question what the exact meaning of the words 'sale' and 'price' was came up for discussion in two cases in our own Court. The first of these cases is that of Rajjo v. Lajja : AIR1928All204 . That was a case under the Agra Pre-emption Act and it is important to note that the view expressed by Lindsay J. was that:

'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised, and the word 'price' is to be understood in this definition as meaning 'money'.

12. The second case in which this question of the meaning to be attached to the word 'sale' came to be considered is that of Kalyan v. Mt. Desrani : AIR1927All361 and the opinion was expressed by Sulaiman J. at p. 495 that:

a sale which is not in lieu exclusively of a cash price, or such price as can be definitely ascertained, is not capable of pre-emption.

The question is whether the price in this case can be definitely ascertained as laid down by Sulaiman J. There is no question here in this case of any prior debt. The kharch-i-pandan allowance was not in arrears. The transaction related to future payments and the agreement under the kharch-i-pandan was for life. The duration of one's life being uncertain, future payments could not be ascertained. Apart from this no evidence was produced on behalf of the appellant that the lady vendee had in lieu of her right to an allowance of Rs. 100 per month for kharch-i-pandan agreed to substitute a capitalised sum of Rs. 14,400 on the basis that it represented the allowance which she would get in 12 years. In other words, there is no evidence that 12 years were substituted for life as the basis of calculation for the capitalised value of kharch-i-pandan. I am satisfied that the case of Kalyan v. Mt. Desrani : AIR1927All361 on which reliance was placed at a late stage by learned Counsel for the plaintiff-appellant does not support him. It is, therefore, clear that the transaction which was a transfer did not come within the meaning of the word 'sale'. For this reason no right of pre-emption accrued to the plaintiff-appellant.

13. I would, therefore, dismiss the appeal with costs.

Harish Chandra, J.

14. I agree with my learned brother, but would add a few words. Price is money and the reason why the word 'money' has not been used in Section 54, T.P. Act seems to be that the term 'price' may also include what may 'not necessarily' be 'money handed over in current coin at the time' as well as 'money which might be already due or might be payable in future.': Madam Pillai v. Badrakali Ammal A.I.R. (9) 1922 Mad. 311 (F.B.). The price in case of a sale must represent money the amount of 'which can be definitely ascertained' and is so ascertained and cannot include the present estimated value - even though it be with the consent of the parties - of a maintenance allowance or any other allowance payable periodically for life or the estimated money value of anything else given in exchange for the property sold.

15. The appeal is dismissed with costs.


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