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Munni Koer Vs. Madan Gopal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All478; 31Ind.Cas.792
AppellantMunni Koer
RespondentMadan Gopal
Excerpt:
transfer of properly act (iv of 1882,), section 54 - sale in favour of minor, validity of--contract act (ix of 1872), section 11. - - 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 immoveable property are every day 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 ever passed. as the result of the finding of the court below upon the issue we referred, it is.....
Judgment:

1. By our order,' dated July 9th 1915, we referred an issue to the Court below. The finding on this 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 ever passed. As the result of the finding of the Court below upon 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 Moliori Bibi v. Dharmodas Ghose 30 C. 539 (P.C.) : 30 I.A. 114 : 7 C.W.N. 441 : 5 Bom. L.R. 421 and also the case of Navakoti Narayana Chetty v. Loyalinga Chetty 4 Ind. Cas. 383 : 33 M. 312 : 19 M.L.J. 752 M.L.T. 233 are relied upon. On the other side, the case of Ulfat Rat v. Gauri Shankar 11 Ind. Cas. 20 : 33 A. 657 : 8 A.L.J. 670 and also the case of Raghunath Bakhsh v. Haji Sheikh Muhammad Bakhsh 30 Ind. Cas. 200 : 18 O.C. 115 : 2 O.L.J. 200 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 immoveable property are every day made to minors. Section 127 by necessary implication shows that a person who is not competent to contract, may be the donee of immoveable 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, 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 of the property. 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, she 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 specifies performance. In such a 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 and also the decree of the learned Judge of this Court and decree the plaintiff's claim with costs in all Courts, including both hearings in this Court.


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