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Sayyed Ibne Hasan Mazhar HusaIn Vs. Mst. Mehtab Latafat Husain - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 57 of 1957
Judge
Reported inAIR1960MP237
ActsTransfer of Property Act, 1882 - Sections 54
AppellantSayyed Ibne Hasan Mazhar Husain
RespondentMst. Mehtab Latafat Husain
Appellant AdvocateAbdul Hafiz, Adv.
Respondent AdvocateBhagwan Swaroop, Adv.
DispositionAppeal allowed
Cases ReferredIn Maktul v. Mst. Manbhari
Excerpt:
.....while others procedural, and it is a mistake to suppose that all the provisions ot the transfer of property act have for their foundation justice, equity and good conscience. it is stated in 55 corpus juris 36 that 'sale' in legal nomenclature, is a term of precise legal import, both at law and in equity, and has a well defined legal signification, and has been said to mean, at all times, a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought or sold. these decisions proceeded on the assumption that all the provisions contained in section 54 of the transfer of property act were based on equity, justice and good conscience. these decisions, if i may say so with great respect,..........26-6-1928 (ex. p. 1), (2) that the whole house was redeemed on payment of mortgage money paid by ibne hussain and (3) that on the same date, that is, 25-5-1932, latatat hussain sold the whole house to ibne hasan by the second endorsement (ext. p. 3) on the back of the mortgage deed.5. after hearing both the sides i am clear in my mind that there was no legal detect in the sale and that ibne hasan acquired a valid title on 25-5-1932 in respect of both the portions ot the house. section 54 of the transfer of property act was inapplicable because in 1932 there was no transfer of property act in the former gwalior state within which territory the suit property was situate. it is urged by shri bhagwan swaroop that the principles contained in the transfer of property act had been adapted in.....
Judgment:

Shiv Dayal, J.

1. Ibne Hasan appellant instituted a suit against Latafat Husain and Musammat Mehtab (wife of Latafat Husain) on the allegations that the disputed house bearing municipal number 1676 situated in Bhind was his property, but the first defendant executed a gift deed in favour of the second defendant on 1-2-1951 in respect of the northern portion of the house, which gift was void and ineffective as against the plaintiff. After disclosing the source of his title the plaintiff claimed decree for declaration of Ms title, for possession and for cancellation of the gift deed. During the pendency of the suit Latafat Husain died.

2. The defence was that the plaintiff was the owner only of the southern portion, which had been given by way of gift, but not ot the northern portion. Both the Courts dismissed the plaintiff's suit on the ground that at no time had possession been delivered of the northern portion to the plaintiff, nor was there any registered sale deed in his favour.

3. It Is an undisputed fact that after the gift of 1931 of the southern portion, when Ibne Husain started construction of the house one Banarasi Das came in his way and on the basis of a mortgage deedEx. P. 1 dated 24-6-1928 he claimed that the whole house had been mortgaged in his favour and as such Latatat Husain could not make a gift of any portion oi the house to Ibne'Hasan. The mortgage deed was for Rs. 42/-. Ibne Hasan then paid the mortgage money due to Benarsi Das and on 25-5-1932 Benarasidas made the following endorsement on that deed:

'Latafat Hussain Ne Ibne Hasan Se Mujhko Dilaya.'

Then there is another endorsement below this endorsement in which Latafat Hussain wrote as follows:

'Bilewaz Rs. 42/- Benama Imroze Se Qabza Ibne Hasan Ka Karadiya. Ab Mujhko Ya Mere Warisan Ko Taluq Mere Makan Se Nahin Raha.'

One ot the attesting witnesses to this second endorsement Ex. P. 3 is Benarsi Das himself.

4. There can be no doubt from this that (1) the whole house, that is to say, both the northern and the southern portions were mortgaged with Benarsidas for Rs. 42/- under mortgage deed dated 26-6-1928 (Ex. P. 1), (2) that the whole house was redeemed on payment of mortgage money paid by Ibne Hussain and (3) that on the same date, that is, 25-5-1932, Latatat Hussain sold the whole house to Ibne Hasan by the second endorsement (Ext. P. 3) on the back of the mortgage deed.

5. After hearing both the sides I am clear in my mind that there was no legal detect in the sale and that Ibne Hasan acquired a valid title on 25-5-1932 in respect of both the portions ot the house. Section 54 of the Transfer of Property Act was inapplicable because in 1932 there was no Transfer of Property Act in the former Gwalior State within which territory the suit property was situate. It is urged by Shri Bhagwan Swaroop that the principles contained in the Transfer of Property Act had been adapted in the Gwalior State. This argument is too late in the day. The Transfer of Property Act contained provisions of two kinds --some substantive, while others procedural, and it is a mistake to suppose that all the provisions ot the Transfer of Property Act have for their foundation justice, equity and good conscience. This is laid down in Namdeo v. Narmadabai, 1953 SCR 1009: (AIR 1953 SC 228).

6. According to its ordinary acceptation there are only three requisites to complete a transfer bysale:

(1) One person must agree to transfer his ownership to another person and that other person must agree to accept such a transfer,

(2) a price must be paid or agreed to be paid by the latter to the former, and

(3) Both persons must be competent to contract. It is stated in 55 Corpus Juris 36 that 'sale' in legal nomenclature, is a term of precise legal import, both at law and in equity, and has a well defined legal signification, and has been said to mean, at all times, a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought or sold.'

Under the Indian Transfer of Property Act also a sale is a transfer of ownership in exchange for a price.

7. Since the above three requirements were Fulfilled in this case, the sale was complete. The other requirements namely registration or delivery of possession are procedural matters and are artificial. Basically there is no difference between the sale of movable property and the sale of immovable property. Just as in the case of immoveables, property is transferred from one person to another as soon as the above three requirements are fulfilledalthough there may not be delivery of possession so also in the case of immovable properties, ownership passes from the vendor to the vendee when the former transiets the ownership and accepts the price.

8. Shri Bhgwan Swaroop strongly relies on certain decisions ot the Judicial Committee of the former Gwalior State which was the highest judicial tribunal (9 Risala Qanooni 312, 12 Risala Qanooni 154, 14 Risala Qanooni 367 and 16 Risala Qanooni 113). It is true, that in these cases it was held that a sale was not complete without registration or delivery of possession and that the provisions of Section 54 of the Transfer of Property Act must be taken to be applicable to sales effected in the Gwalior State territory. These decisions proceeded on the assumption that all the provisions contained in Section 54 of the Transfer of Property Act were based on equity, justice and good conscience. These decisions, if I may say so with great respect, cannot be held as laying down good law in view of the Supreme Court decision cited above. Shri Bhagwan Swaroop further relies on Circular No. 5 of Samwat 1979 issued by the Legislative Department of the Gwalior State.

In my opinion, that circular also, on a parity of reasoning does not avail the defendant. It was provided in the Circular that on those matters on which there was no enacted laws in Gawalior State the substantive principles of the laws in force in the then British India should be borrowed and applied. Since I have held that the provisions relating to registration and delivery of possession contained in Section 54 are procedural and not substantive, by the aid of the Circular, the sale transaction of 25-5-1932 cannot be held ineffective.

9. Shri Bhagwan Swaroop next relying on Section 50 ot the Registration Act urges that this is a case of a competition between Ibne Hasan, who holds the property under an unregistered sale deed and Musammat Mehtab, who holds the northern portion of the house under a registered deed of gift dated 19-2-1051, and therefore, preference must be given to Musammat Mehtab. This argument is devoid of substance because if Ibne Hassan acquired a valid title on 25-5-1932, there was nothing left with Latafat Hussain to give away under the gift deed in 1951 to his wife.

10. I have no doubt departed from the consistent view taken for seven years and more in the Gwalior State, but the principle of stare decisis cannot be applied when the view taken in these decisions comes in conflict with a dictum of the Supreme Court, and when it does not stand the test of reason. Registration and delivery, of possession could not be considered as substative provisions or requisites of a sale. Therefore, I cannot follow these decisions as I am convinced they were erroneous. In Maktul v. Mst. Manbhari, AIR 1958 SC 918, it is laid down:

'Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the Court and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable. But previous decisions should not be followed to the extent that grievous wrong may result; and accordingly the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretionof the court and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result''.

11. Then, it is difficult to hold that Ibne Hussain was not in possession of the house. It will be against the materials on record to hold that the southern portion and the northern portion of the house were as if two separate houses. Undoubtedly, the southern portion in respect of which a gift was made in 1931 to Ibne Hussain and the northern portion in respect of which another gift was made in 1951 in favour of Musammat Mehtab were two portions of the same house. Not only that their municipal number was one but the documents on record also lead to the same inference. Now if Ibne Hussain was admittedly in possession of a portion of the house since 1931 and he continued to be in possession on and after 25-5-1932 it cannot be said that he was not in possession.

It is not necessary even under Section 54 of the Transfer of Property Act that the vendee should go and physically occupy every nook and corner sold to him. Latafat Hussain was a brother-in-law of Ibne Hussain and if, because of their relationship, Latafat Hussain continued to stay in the house, it was only permissive possession. Delivery of possession required under Section 54 is that kind of delivery which a property according to its nature and circumstances admits of. 1, therefore, held that Ibne Hasan was in possession of the entire house as from 25-5-1932, the southern portion was in his immediate possession while he was in mediate possession of the northern,

12. For these reasons, this appeal is allowed. The judgments and decrees of both the Courts below are set aside and it is declared that the plaintiff is the owner of the entire house described in the plaint. The defendant shall restore possession to him. The plaintiff shall have his costs throughout. The trial Judge shall determine the amount of mesne profits under Order 20 Rule 12(c) C. P. C.


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