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Patti Vs. Kunhi Raman Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 302 of 1955 (M)
Judge
Reported inAIR1959Ker389
ActsTransfer of Property Act, 1882 - Sections 55(6)
AppellantPatti
RespondentKunhi Raman Nair and ors.
Appellant Advocate V.M.B. Menon, Adv.
Respondent Advocate V.P. Gopalan Nambiar and; V.M. Karunakaran, Advs.
DispositionAppeal dismissed
Excerpt:
- .....the defendants 1 to 18 acting through the majors among them, executed ext. al agreement for sale to the plaintiffs covenanting to sell 20/27 shares in the a schedule property. these 20/27 shares were alleged to belong to the defendants 1 to 18 and 2 other members raman and raghavan of their two thavazhis. however by subsequent sale deed dated 30-5-1950 defendants i and 8 conveyed their shares to the 19th defendant and similarly the defendants 2 to 7 and 9 to 18 acting by the majors among them conveyed their shares to the 20th defendant under ext. b7 sale deed dated 1-6-1950.the plaintiffs therefore filed this suit for specific performance soon later on 1-12-50. the courts below concurrently found against the bona fides of exts. bl and b7 but nevertheless they disallowed specific.....
Judgment:

Varadaraja Iyengar, J.

1. This second appeal is by 19th defendant and arises out of a suit for specific performance.

2. On 134-1950 the defendants 1 to 18 acting through the majors among them, executed Ext. Al agreement for sale to the plaintiffs covenanting to sell 20/27 shares in the A schedule property. These 20/27 shares were alleged to belong to the defendants 1 to 18 and 2 other members Raman and Raghavan of their two thavazhis. However by subsequent sale deed dated 30-5-1950 defendants I and 8 conveyed their shares to the 19th defendant and similarly the defendants 2 to 7 and 9 to 18 acting by the majors among them conveyed their shares to the 20th defendant under Ext. B7 sale deed dated 1-6-1950.

The plaintiffs therefore filed this suit for specific performance soon later on 1-12-50. The courts below concurrently found against the bona fides of Exts. Bl and B7 but nevertheless they disallowed specific performance to the plaintiffs and while the trial court dismissed the suit in toto, the lower appellate court granted the plaintiffs a decree limited to recovery of the purchase price under Ext. Al with interest as against the majors among the defendants 1 to 18, viz. defendants 1 to 5 and 8 to 11 and also their interests in the property covered by Ext. Al. The plaintiffs have acquiesced in the decree but the 19th defendant is dissatisfied with the grant of charge under the decree in favour of the plaintiffs and hence this appeal.

3. Learned counsel for the appellant contends that the court below was wrong in assuming that the partible interest of a marumakkathayee is without more an alienable interest and so granting charge as regards the major member's shares. This is certainly a large and difficult question. But we axe relieved from considering it here because, as learned counsel for. the plaintiffs points out, the case of the 19th defendant in his written statement was that the property belonged exclusively to the defendants 1 and 8 and not to their thavazhis.

Indeed according to the written statement of the defendants 1 and 8 themselves they alone were owners and the names of the defendants 2 to 7 and 9 to 18 had been included in the agreement Ext. Al just only to satisfy the vendees thereunder. The defendants 2 to 7 and 9 to 18 by separate written statement had also disclaimed any title in themselves.

4. Learned counsel then said that the property had even before suit, passed to the defendants 19 and 20 under their sale deeds and so no charge could be granted in respect of any shares therein as if they appertained to defendants 1 and 8. But this argument overlooks the provision in Section 55(6)(b) of the Transfer of Property Act as follows :

'55 (6) The buyer is entitled-

(a) .........

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property as against the seller and all persons claiming under him to the extent of the seller's interest in the property, for the amount of any purchase-money roperly paid by the buyer in anticipation of the delivery and for interest on such amount; and when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any). awarded to him of a suit to compel specific performance of a contract or to obtain a decree for its rescission.'

That is to say the purchaser has got a lien for the money paid by him on the vendor's interest when the contract goes off. Just in the same way as the vendor has in the property which has passed to the vendee for the unpaid sale consideration; This charge is made specifically available not only against the seller but all persons, in the position of the defendants 19 and 20, claiming under him and it is noteworthy that the words 'with notice of the payment' which occurred after the words 'all persons claiming under him' were deleted by the Amending Act of 1929.

5. There is therefore no substance in this appeal and it is dismissed with costs.


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