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illikkal Devaswom Vs. Pottakkatt Narayanan Raghavan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 76 of 1960
Judge
Reported inAIR1966Ker96
ActsTransfer of Property Act, 1882 - Sections 53A and 54; Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 2 and 7
Appellantillikkal Devaswom
RespondentPottakkatt Narayanan Raghavan and anr.
Appellant Advocate M.K. Narayana Menon, Adv.
Respondent Advocate T.S. Venkiteswara Iyer, Adv.
DispositionAppeal dismissed
Excerpt:
- .....transfer of property act dealing with the definition of 'sale' may conveniently be extracted.'54. 'sale' is 3 transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. such transfer, in the case of tangible in movable properly of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. in the ease of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property ' 5. reliance was placed bv the appellant's counsel on the 3rd paragraph of the above section to contend that the transfer in this ease could be made by delivery of property. but it is plain that the said.....
Judgment:

Gopalan Nambiyar, J.

1. This appeal has been preferred by the plaintiff in O. S. No. 172 of 1956, Sub-Court, Ernakulam, against the dismissal of its suit to set aside an order passed on a claim petition preferred by it under the following circumstances,

2. The suit property ' of an extent of nearly 60 cents belonged to the plaintiff-Devaswom, and was sold in court-auction for Rs. 125, on 25-4-1118 and purchased by the 2nd defendant, under a sale certificate which has been filed as Ex. B. The sale was confirmed on 27-5-1118. Paragraph 5 of the plaint alleged that the 2nd defendant orally conveyed the property to the plaintiff-Devaswom on 20-12-1122, and on the same day at the request or insistence of Devaswom executed an unregistered sale-deed, which has been filed as Ex. A. Thereafter, the 1st defendant, in pursuance of a decree obtained by him against the 2nd defendant attached the suit property on 17-8-1124. The Devaswom filed a claim petition to release the property from attachment. The final order passed on the said petition is evidenced by Ex. J, The attachment was made absolute to the extent of the rights of the auction-purchaser namely the 2nd defendant. It is to set aside this order that the suit, out of which this appeal arises, was filed.

The trial court having dismissed the same, the plaintiff has preferred this appeal.

3. The plaintiff's claim to set asjcle the order Ex. J was rested on the ground that the rights of the 2nd defendant had been conveyed to it by the oral sale referred to in paragraph 5 of the plaint and delivery of possession and the same was confirmed and embodied in Ex, A. The question for consideration is whether the oral sale and the delivery of possession would suffice to convoy the title to the plaintiff.

4. The first three paragraphs of Section 54 of the Transfer of Property Act dealing with the definition of 'sale' may conveniently be extracted.

'54. 'Sale' is 3 transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Such transfer, in the case of tangible in movable properly of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the ease of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property '

5. Reliance was placed bv the appellant's counsel on the 3rd paragraph of the above section to contend that the transfer in this ease could be made by delivery of property. But it is plain that the said paragraph could have application only if the property in rpieslion is of a value of less than Rs 100. If it is above that value, it is clear, from paragraph 2 of Section 54 that the transfer can be made only be register ed instrument. It in beyond dispute that there has been no such registered instrument. On the question of the value of the property, the court below on an analysis of the evidence came to the conclusion in paragraph 11 of its judgment, that the property would be worth at least Rs. 1.320 in value.

6. We are in agreement will the said assessment of the evidence, and the said conclusion of the courl below. If so, if follows that the sale can be effected only by registered instrument and a sale by delivers of properly, as contended on behalf of the appellant, would be of no avail.

7. Counsel for appellant sought io argue before us, that even if the Davaswo in had no litle on the basis of a sale by the 2nd defendant, still, it was in possession even after the court-sale to 2nd dcfendant in 1118, and bud valuable rights under Section 53A of the Transfer of Property Act No foundation has been alleged nor- such a case in the pleadings, and we decline to investigate the question.

8. The appeal fails and is dismissed withcosts of the 1st respondent.


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