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Shesh Mal and ors. Vs. Harak Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 240 of 1972
Judge
Reported inAIR1983Raj109
ActsTransfer of Property Act, 1882 - Sections 53A and 54; Registration Act, 1908 - Sections 49; Code of Civil Procedure (CPC) , 1908 - Sections 96
AppellantShesh Mal and ors.
RespondentHarak Chand and ors.
Appellant Advocate H.M. Parekh, Adv.
Respondent Advocate H.C. Jain, Adv.
DispositionAppeal dismissed
Cases ReferredIn Nathulal v. Phoolchand
Excerpt:
- - in the first appellate court, the defendants also raised the question that their possession over the disputed property should be protected by virtue of the provisions of section 53a of the transfer of property act and the learned district judge also gave a finding in favour of the contesting defendants on this question as well and held that the unregistered sale-deed (ex. no such instruments was registered, and there was no delivery of possession of the cowri share, so that neither of the conditions necessary under section 54 to make a good transfer on sale of property under the value of rs. we are therefore clearly of opinion that the plaintiff has acquired no valid title under the alleged sale, inasmuch as there was not any delivery of the property to him at the time that the.....dwarka prasad, j.1. this second appeal arises out of a suit for possession, which has been dismissed by both the courts below.2. it is no longer in dispute that the house property, which is subject matter of litigation between the parties belonged to the joint hindu family of sheshmal. it has been mentioned in the plaint that the said house situated in village devria, tehsil jetaran in the district of pali, was the ancestral house of the plaintiffs. according to the plaintiffs themselves sheshmal migrated to maharashtra and started residing in village chandai in district aurangabad, in the state of maharashtra. the plaintiff's case is that the house in dispute was lying vacant, but five years prior to the institution of the suit the defendants, who were related to the plaintiffs as they.....
Judgment:

Dwarka Prasad, J.

1. This second appeal arises out of a suit for possession, which has been dismissed by both the courts below.

2. It is no longer in dispute that the house property, which is subject matter of litigation between the parties belonged to the joint Hindu family of Sheshmal. It has been mentioned in the plaint that the said house situated in village Devria, Tehsil Jetaran in the District of Pali, was the ancestral house of the plaintiffs. According to the plaintiffs themselves Sheshmal migrated to Maharashtra and started residing in village Chandai in District Aurangabad, in the State of Maharashtra. The plaintiff's case is that the house in dispute was lying vacant, but five years prior to the institution of the suit the defendants, who were related to the plaintiffs as they came from the same stock, unlawfully entered the disputed house and occupied the same without any right. Thereafter, the defendant-respondents also obtained a patta in respect of the disputed house from the Panchayat Devria on March 8, 1959. The plaintiffs filed the suit on October, 21, 1964 and prayed therein that the possession of the house in dispute be restored to them and they may also be awarded mesne profits at the rate of Rs. 10/- per month, with interest at the rate of 6 per cent on the amount of mesne profits.

3. The defendants, Harakchand and Ganpatraj, did not contest the suit and ex parte proceedings were taken against them. Only defendant Sugan Chand resisted the suit and took two pleas in the alternative. In the first place, it was averred that Suganchand defendant and his son Dharamchand were in occupation and possession of the disputed house for more than 12 years and they had acquired ownership by adverse possession, on the basis of their peaceful, open and continuous possession over the disputed house for a period of more than 12 years. In the second place, it was pleaded by the defendants Sugan Chand and Dharam Chand that when they came to know that the earlier patta of the house in dispute was with the plaintiff-appellants, who were their relatives, an oral sale was made by the plaintiff-appellants in favour of the contesting defendants on June 14, 1958 for a sum of Rs. 99/- and that the contesting defendants paid a sum of Rs. 99/- to the plaintiff-appellants, who delivered the patta of the disputed house to the contesting defendants and also executed an unregistered deed of sale in favour of the contesting defendants on the same day. It was further pleaded that the contesting defendants were in possession of the house in dispute as owners thereof since June 14, 1958 and the plaintiff-appellants had no right, title or interest left in the disputed property thereafter. Thus the defendants claimed ownership rights on the basis of a unregistered sale deed alleged to have been executed by the plaintiff-appellants and the delivery of the original patta of the disputed house. The contesting defendants also got a patta in respect of the disputed house from the Gram Panchayat on March 8, 1959 in their favour. It was also alleged by the contesting defendants that they had invested a sum of Rs. 1900/- on the disputed house in repairs etc. The contesting defendants also took the plea that the suit was barred by time, as the plaintiff appellants were not in possession of the suit property at any time within 12 years of the date of institution of the suit.

4. Both the courts below did not find the plea of adverse possession raised by the contesting defendants as proved and it was also held that the suit was not barred by limitation. But both the courts below came to the conclusion that the disputed house was sold by the plaintiff-appellants to the contesting defendants, who were already in illegal possession thereof and that there was a sale of the property in dispute in favour of the contesting defendants by delivery of possession. In the first appellate court, the defendants also raised the question that their possession over the disputed property should be protected by virtue of the provisions of Section 53A of the Transfer of Property Act and the learned District Judge also gave a finding in favour of the contesting defendants on this question as well and held that the unregistered sale-deed (Ex. A-9) could be used as a weapon of defence by the contesting defendants to protect their possession over the house in dispute. Both the courts below, as stated earlier, dismissed the plaintiff's suit for possession and as such the question of mesne profits did, not arise.

5. In this second appeal, the main contention advanced by the learned counsel for the plaintiff-appellants is that there was no sale made within the meaning of Section 54 of the Transfer of Property Act and that the alleged unregistered sale deed could, therefore, be of no assistance to the contesting defendants. It was argued by the learned counsel for the appellants that the unregistered sale deed was inadmissible in evidence because of the provisions of Section 54 of the Transfer of Property Act, read with Section 49 of the Registration Act. It was also argued that oral evidence of the alleged transaction of sale was barred on account of the provisions of Section 91 of the Evidence Act and further that there was no evidence of oral sale worth the name on record. Learned counsel for the plaintiff-appellants also submitted that the plea of part performance could not be allowed to be raised, firstly, because there was no foundation in the pleadings in respect of such a plea and secondly as that plea and the plea of adverse possession were self-destructive of each other.

6. Learned counsel for the contesting defendants op the other hand, contended that the sale was made by delivery at possession as the property in dispute was of the value of less than Rs. 100/-and as the vendee was in actual physical possession of the property in dispute, the delivery of possession, within the meaning of Section 54 of the Transfer of Property Act, was completed by the declaration of the vendor coupled with delivery of the earlier patta, which brought about the change in the nature of possession. It was urged that the unregistered sale deed was admissible in evidence, at least to look into the nature of possession, within the meaning of the proviso to Section 49 of the Registration Act. Learned counsel further submitted that all the necessary facts for raising a plea of part performance were contained in the pleadings and as such the first appellate court was justified in allowing the defendants-respondents to raise the plea of part performance by way of defence, at the appellate stage and that the plead of adverse possession, though raised in the written statement, was given up by the contesting defendants at the trial stage and no evidence was led in support thereof by the defendants.

7. Section 54 of the Transfer of Property Act defines 'sale' as a transfer of ownership, in exchange for a price paid or promised or part paid and part promised. The aforesaid section further proceeds to lay down in the following terms, as to how a sale can be made:--

'Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can he made only be a registered instrument.' In the case of tangible immoveable 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. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.'

8. The Judicial Committee of the Privy Council considered the question of sale of immoveable property of the value of less than Rs. 100/- in Mathura Prasad v. Chandra Narayan Chowdhary, AIR 1921 PC 8. In that case, the question which arose before their Lordships of the Privy Council for consideration was as to whether the mortgaged bond in respect of the property, situated in Mouzah Mahomedpur Boari in Darbhanga district of Bihar, executed by Udit Narain in favour of Mathura Prasad was inoperative for want of proper registration, as the same was registered in the Mozuffurpur district and not in Darbhanga district. It was alleged that along with the property situated in Mouzah Mohomedpur Boari in Darbhanga district, Udit Narain had also mortgaged 'one couri share in Mouzah Kolhua in Zillah Mozuffurpur', which afforded justification for getting the mortgage bond registered in Mozuffurpur district. The defendant asserted that this 'cowri share of Kolhua property' did not belong to the mortgagor and that both the parties were aware of this fact, but the said cowri share was introduced in the mortgage-bond fictitiously, merely for the purpose of getting the mortgage-bond registered, in the Mozufferpur district. While examining the question as to whether the mortgagor Udit Narain was the owner of the said one cowri share of the Kolhua property, their Lordships found that in Mozuffurpur district the mortgagor has no property at all, but Osman who was a witness to the mortgage bond was alleged to have executed a Kohala selling a one cowri share in the Kolhua property to Udit Narain, 2 or 3 days before the execution of the mortgage. In this context, their Lordships of the Privy Council observed as under.--

'The alleged Kobala was not produced, and no foundation was laid for giving secondary evidence of its contents. No such instruments was registered, and there was no delivery of possession of the cowri share, so that neither of the conditions necessary under Section 54 to make a good transfer on sale of property under the value of Rs. 100/- was fulfilled. Their Lordships cannot accept the suggestion made on behalf of the appellants that, for the purposes of Section 54, some sort of constructive possession resulting from the delivery of the alleged instrument of transfer might be sufficient. For this purpose there must be a real delivery of the property. Assuming such a kobala existed, if it was intended, to be effective as a transfer, it would have been registered or possession would have been given. There was no intention really to acquire this cowri share in the Kolhua property.'

9. In the aforesaid case, their Lordships of the Privy Council found as a fact that one cowri share in the Kolhua property, of which Osman was the owner, was neither in possession of the alleged vendee Udit Narain nor the said vendee was put into possession of the aforesaid one cowri share as a result of the alleged sale and on the basis of these facts it was held that there was no delivery of possession of the cowri share. In that case their Lordships observed that there must be a real delivery of the property, for constituting a sale for the purposes of Section 54 of the Transfer of Property Act and some sort of constructive possession would not be sufficient. As is apparent from the language of Section 54, in the case of tangible immoveable property of the value of less than Rs. 100/-, transfer of property by way of sale could be affected only in two possible ways, namely, either by a registered instrument or by delivery of the property. Thus, real delivery of the property is essential for a valid sale, in case there is no registered instrument evidencing the sale of tangible immovable property of the value of less than Rs. 100/-. It may be observed that in Mathura Prasad's case (AIR 1921 PC 8), their Lordships of the Privy Council found as a fact that the property was neither in possession of the alleged vendee Udit Narain nor the possession of the said property was delivered to him as a result of the sale. Undoubtedly, if there is a sale of tangible immovable property of the value of less than Rupees 100/- one mode of making an effective sale is of executing a registered sale deed; but if a registered instrument is not executed by the vendor, the other mode of transfer by way of sale of such immovable property of the value of less than Rs. 100/- is by an oral sale accompanied by delivery of the property. Section 54 itself provides that delivery of tangible immovable property takes place when the seller places the buyer or such person as he may direct in possession of the property. In cases where the buyer was not in earlier possession of the property, which was the subject-matter of sale, there can be no doubt that either a registered instrument should be executed by the vendor or there may be an oral sale accompanied by delivery of the property, as held by their Lordships of the Privy Council in Mathura Prasad's case (AIR 1921 PC 81. But the difficulty has arisen in cases of sale of immoveable property of the value of less than Rs. 100/-, where the proposed vendee was already in actual physical possession of the property, which was subject-matter of sale. There is sharp conflict of judicial opinion in this respect. One view is that if the proposed vendee is already in actual physical possession of the property which is sought to be conveyed by sale and as such actual or real delivery of possession of such property is not possible, then the sale could be effected only by a registered instrument or not otherwise. The other view is that where the actual possession of the property sought to be sold is already with the proposed vendee and delivery of actual physical possession is, therefore, not possible, an oral sale can be effected coupled with such overt acts, which may constitute definite evidence of the intention on the part of the vendor to convey the property and may bring a change in the nature or character of possession of the vendee. Thus, in the case of usufructuary mortgagee, a licensee or a lessee or a person in permissive possession or otherwise in occupation of the property sought to be sold, the proposed vendee being already in actual physical possession of the said property as such delivery of possession is not possible and possession can be transferred only in such manner as is possible, such as by getting a mutation entry made in favour of the vendee or the vendor making an unequivocal declaration of his intention of divesting himself of the ownership of the property in question or delivery of the earlier document of title relating to the ownership of that property by the vendor to the vendee, which may constitute overt acts on the part of the vendor and may give evidence leading to a definite conclusion that the vendor was a willing party to the transaction of sale and had willingly transferred the ownership of the property to the vendee in such manner as was possible in the circumstances, to change the nature or character of possession to that of the vendee; from the earlier possession as that of a usufructuary mortgagee, lessee, licensee, permissive occupant or a person otherwise in possession of that of a rightful owner with a legal title to the property. While, the Allahabad and Bombay High Courts and Calcutta and Hyderabad High Courts in earlier cases have taken the first view, but in subsequent oases the Calcutta, Patna, Madras, Rangoon, Andhra Pradesh, Nagpur, Lahore, Madhya Pradesh, Orissa and Assam High Courts have taken the second view referred to above. A Division Bench of this Court has also taken the same view as has been taken fey the Madras and Patna High Courts.

10. The earliest decision which propounded the first view appears to be in the case of Sibendrapada Banerjee v. Secretary of State for India in Council (1907) ILR 34 Cal 207. In that case, a plot of land was transferred by the Road Cess Committee of the Cuttack Road Cess Department to the Public Works Irrigation Department for an amount of less than Rs. 100/- without any registered instrument. The Secretary of State for India in Council instituted a suit for the recovery of possession of the said plot and an objection was taken that the plaintiff acquired no title to the property as the transfer was not made by a registered instrument and there was no delivery of possession within the meaning of Section 54 of the Transfer of Property Act. It was stated that as the plaintiff was in possession of the land in dispute from before the alleged transfer of property and, therefore, there could not be any physical delivery of possession within the meaning of 8. 54 of the Transfer of Property Act. As the sale of immoveable property was made for less than Rs. 100/- and there was unregistered instrument, the only question which arose was whether there was a transfer by delivery of the property. Their Lordships of the Calcutta High Court observed as under in the aforesaid case:--

'The language of Section 54 is quite clear. It speaks of a transfer by delivery of the property, so that the delivery is the essence of the transaction. We are not prepared to put any loose construction upon this section, because the consequences of such a construction might be far-reaching and injurious in many instances. For instance, if A is in occupation of land either as tenant or as a mortgagee, and subsequently sets up a claim to have acquired a full title to the property without a registered instrument, he would have to prove, if the property was of value less than Rs. 100/-, that the transfer to him had been effected by delivery. If we hold, that no delivery is necessary in a case of this description the parties might be put to considerable difficulty in establishing their case. The essence of a transfer by delivery of the property is that possession is changed. What was in the occupation of the vendor, by reason of that transfer ceases to continue in his occupation, the possession being transferred to the vendee. We are therefore clearly of opinion that the plaintiff has acquired no valid title under the alleged sale, inasmuch as there was not any delivery of the property to him at the time that the sale is said to have taken place.'

11. This view was followed by the Calcutta High Court in Hushmat v. Jamir AIR 1919 Cal 325 (2) and by a learned single Judge of the same court in Kali-ram Majumdar v. Dulalram Choudhury AIR 1933 Cal 544. In both these cases, it was held that if the vendee was already in possession of the property sought to be sold, the only mode by which a proper sale could be effected was by a registered instrument.

12. The same view was also taken by a Full Bench of the Allahabad High Court in Sohanlal v. Mohanlal AIR 1928 All 72?. In Sohanlal's case the Full Bench of the Allahabad High Court held that the transfer of tangible immoveable property of the value of less than Rupees 100/- could be made by delivery of the property, but it meant actual delivery and not a constructive delivery and in the case where delivery of property was not possible as in the case of usufructuary mortgagee, because the property was already in possession of the latter, the registration of the sale deed was compulsory, to give effect a valid sale. Their Lordships of the Allahabad High Court preferred the view of the Calcutta High Court in the aforesaid cases to the view taken by the Madras High Court.

13. In Bhaskar Gopal v. Padman Hira Chowdhari AIR 1916 Bom 223, it was held that where the property transferred was in possession of tenants, the interest conveyed was only a reversion in the property and, therefore, the sale deed ought to be registered even though the property may be of the value of less than one hundred rupees. It may, however, be pointed out that in that case their Lordships of the Bombay High Court did not agree with the learned Judges of the Calcutta High Court in Sibendrapada Banerjee's case ((1907) ILR 34 Cal 207) and held that it was not impossible to deliver symbolical possession and such delivery is familiar in law; but the reason which led their Lordships of the Bombay High Court in Bhaskar Gopal's case (AIR 1916 Bom 223) to hold that a registered instrument was necessary, was that their Lordships considered the landlord's estate as a right of reversion, on the analogy of English Law and held that the property sought to be transferred was intangible property, which according to Section 54 the Transfer of Property Act could only be transferred by a registered instrument. I may respectfully submit that the view taken by their Lordships of the Bombay High Court in Bhaskar Gopal's case is contrary to that of the Full Bench of the Allahabad High Court in Sohanlal's case (AIR 1928 All 726), where it was held that the analogy of English Law cannot be made applicable to the provisions of the Transfer of Property Act in India and even the equity of redemption has been held to be tangible immoveable property. It may be pointed out that Sulaiman Actg. C. J. observed in Sohanlal's case that ownership of the property remained vested in the mortgagor, however heavily the property might have been mortgaged. The same view has also been taken by the Madras High Court and it has been held that the ownership right having been vested in the mortgagor or the lessor, the sale of the equity of redemption or the right of reversion, as may be called in the case of a lease, was sale of tangible immoveable property.

14. In Tribhovan Hargovan v. Shankar Desai AIR 1943 Bom 431, it was held that the observations made in Kuppuswami Goundan v. Chinnaswami Goundan AIR 1928 Mad 546, that the sale of immoveable property for less than Rupees 100/- must be by a registered instrument and if there is an unregistered instrument the same is invalid and could not be used for the purpose of proving the title of the vendee, must be regarded as obiter. It was pointed out that Section 54 of the Transfer of Property Act refers to delivery of the property as one of the modes by which the transfer could be effected, in case of sale of immoveable property of the value of less than Rs. 100/- and that although an unregistered sale deed could not be used for proving the title to the property in question, yet a party was not precluded from proving the sale by delivery of the property. It was observed in that case that if it is proved that there was a contract of sale prior to the delivery of the property might be sufficient to establish the SAme, although the UNREGISTERED instrument of sale could not be used for the purpose of finding out the terms of the sale.

15. In Bhikhabhai Nanabhai Patel v. Chimanlal Maganlal Shah AIR 1953 Bom 437, a Full Bench of the Bombay High Court agreed by the decision of the Calcutta High Court in Shibendrapada Banerjee's case ((1907) ILR 34 Cal 207) and the decision of the Allahabad High Court in Sohanlal's case (AIR 1928 All 726 (FB)) and did not agree with the view taken by the Madras and Patna High Courts and the decision of the Calcutta High Court in Kulachandra Ghosh v. Jogendra Chandra Ghosh AIR 1933 Cal 411. In view of the observations of their Lordships of the Privy Council in Mathura Prasad's case (AIR 1921 PC 8) it was held that the delivery for the purposes of Section 54 of the Transfer of Property Act should be real delivery. With great respect, it may be observed that their Lordships of the Bombay High Court failed to consider that their Lord-ships of the Privy Council in Mathura Prasad's case (AIR 1921 PC 8) were not concerned with a situation of the vendee being already in actual possession of the property sought to be sold either as a mortgagee or lessee or licensee or otherwise and that what was required was not change of possession, but only a change in the nature and character of possession. As already pointed out above, in Mathura Prasad's case their Lordships of the Privy Council found as a fact that neither the delivery of the property ever took place nor the vendee was put into possession of the property sought to be sold. It was not the case of either party in that case that the vendee was already in possession of the said property prior to the sale took place and, therefore, there was no necessity or question of delivery of possession. It was in the context of the aforesaid finding of fact that their Lordships of the Privy Council observed that there should be a 'real 'delivery' of the property and not merely 'constructive' or 'symbolic'.

16. In Gokam Chinna Nagaiah v. Nagaram Baliga AIR 1956 Hyd 170, a learned single Judge of that court followed the decision of the Bombay High Court in Bhikhabhai's case (AIR 1953 Bom 437) (FB).

17. An earlier Madras High Court case on the subject appears to be Muthukarappan Samban v. Muthu Samban AIR 1915 Mad 573. It was held in that case that both Section 49 of the Registration Act and Section 54 of the Transfer of Property Act require delivery of possession of the property to the vendee in the case of a sale of immoveable property, but in case of an oral sale of immoveable property of the value of less than Rs. 100/-, the mere fact that the vendee was already In possession of the property, which was the subject-matter of sale, did not invalidate the sale, provided the vendee by appropriate acts or declaration controverted the earlier possession of the vendee (which was that of a mortgagee in that case) into that of a purchaser. In the aforesaid case their Lordships of the Madras High Court found themselves unable to agree with the view taken by the Calcutta High Court in Sibendra Pada Banerjee's case ((1907) ILR 34 Cal 207) and observed as under:--

'Unless there is something in Section 54, Transfer of Property Act, which compels us to do so, there is no reason for putting on this section a construction that would in effect require sales of properties below Rs. 100/- to be only by registered instruments in the numerous classes of cases where the vendee is already in possession as tenant or mortgagee. With due deterrence to the learned Judges who decided Sibendra Pada Banerjee v. Secretary of State, we are unable to accept that case as a correct exposition of the provisions of Section 54, T. P. Act. The conclusion we have come to is that, if there was an oral sale of the properties, the fact that the vendee was already in possession would not render the sale invalid if the vendor had by appropriate declarations or acts converted the possession of the vendee as mortgagee into one as purchaser.'

18. The same view was taken by the Madras High Court again in M. K. Sheik Dawood Saheb v. Moideen Batcha Sahab AIR 1925 Mad 566, wherein it was held that the requirements of Section 54 of the Transfer of Property Act were satisfied if a direction is given by the vendor to the usufructuary mortgagee, who was in actual possession of the property sought to be sold, to keep the property as an absolute owner thereof. The following observations made in this case may be usefully quoted:--

'There is no reason to think that the word 'delivery' in Section 54 is used in a peculiar sense or that the words places the buyer in possession of the property' in the 4th clause are intended to alter the legal conception of 'possession' or of 'delivery'. 'Delivery' usually means 'such delivery as the thing to be delivered is capable of. Possession cannot be taken to be synonymous with 'occupation' as has been done in Sibendra Pada Banerjee v. Secretary of State of India in Council (1907 ILR 34 Cal 207) with which decision we cannot agree.'

19. A discordant note was struck in Kuppuswami's case (AIR 1928 Mad 546) with reference to Section 91 of the Evidence Act. It was observed in that case that if a sale was effected by delivery of the property, the terms of the contract having been settled by parol agreement, the transaction could be effected or carried out by delivery. But the moment the parties reduced the terms into writing, it is the writing that contained and set out the terms of the contract and then it would not be an apt or correct description of the transaction to call it a sale by delivery of the property. It was held that the moment an oral contract is reduced, into writing, it is not open to any of the parties to prove the terms of the contract, referring to the original oral agreement and that Section 91 of the Evidence Act applies not only to cases where the contract is brought about or concluded by writing, but also where the contract having been originally made by parol agreement is subsequently reduced into writing. It may be pointed out that though it was a case of sale of property by an unregistered instrument, yet it was not one of the type of cases in which I was dealing, namely, where the vendee was already in possession of the property even before the sale took place. In that case, the finding was that the sale was effected by an oral agreement to sell, accompanied by delivery of possession and execution of an unregistered document of sale and as the contract was in writing but unregistered, it was held to be invalid. With great respect to the learned Judges who decided the case, it may be observed that in case of sale immoveable property of the value of less than Rs. 100/-, it is lawful to effect a sale merely by an oral agreement accompanied by delivery of possession and a registered sale deed is not necessary in such a case. It may be a different thing that the unregistered document of sale may not be admissible in evidence for the purposes of evidenceing the sale yet evidence of parol agreement coupled with delivery of possession can always be led and accepted in order to prove a lawful sale of property of the value of less than Rs. 100/-. It may also be observed that every written contract is normally preceded by a parol agreement. However, it appears that this case has not been referred to in subsequent decisions of the Madras High Court.

20. In Swaminatha Udayar v. Mottaya Padayachi AIR 1957 Mad 209, Rajagopala Ayyangar J. as he then was, referred with approval the decisions in Narasimha Raju v. Bhupati Raju AIR 1916 Mad 1126 (2) and Sheik Dawood's case (AIR 1925 Mad 566) and observed that the existence of an unregistered instrument does not prevent the property from passing to the vendee, provided delivery of the property has taken place. In such a case the deed would not be evidence of the contract of sale but would be evidence of the negotiations concerning the transaction. On the question as to whether the fact that the usufructuary mortgagee was in possession of the property prior to the date of the sale would prevent a delivery of possession in pursuance of the sale deed, the learned Judge, following the decision in Sheik Dawood's case (AIR 1925 Mad 566) observed as under:--

'Where property which is the subject of a usufructuary mortgage is sold to the mortgagee in discharge of the mortgage a direction by the vendor to the vendee to keep the property as absolute owner amounts to delivery of possession. Even if there is no delivery of possession in such a case, the possession of the vendee from the date of the sale becomes adverse to the vendor.'

21. The same view has been taken by a bench of the Andhra Pradesh High Court in Sreeram Venkatasubbamma v. Somisetty Subbayya, AIR 1964 Andh Pra 21 and dissenting from the view taken in Sibendrapada Banerjee's case ((1907) ILR 34 Cal 207) and the Allahabad High Court's Full Bench decision in Sohanlal's case (AIR 1928 All 726) and following the view taken by the Madras and Patna High Courts, it was observed as under:--

'But there is a long line of cases to the effect that despite the fact that property was already in possession of the mortgagee, delivery could be effected to the vendee mortgagee as to satisfy the ingredients of paragraph 3 of Section 54. It is true that the usufructuary mortgagee whose possession is referable to lawful title could not by his unilateral act convert that possession into one adverse to the mortgagagor. In other words, by his own acts he could not alter the legal character of possession which he obtained as the usufructuary mortgagee. But that doctrine has no bearing on the effect of an agreement between the parties that from the date of sale the possession as a mortgagee should cease and from that date his possession should be as an absolute owner. Delivery should be such as the property is capable of. If the animus of the mortgagor, viz. to pass title and also possession as owner, is disclosed by appropriate declarations, delivery would be effective within the scope of Section 54 of the Transfer of Property Act, para. 3, This position is established by a number of decisions of the Madras and other High Courts. It is thus seen that there is abundant authority in favour of the view that there could be delivery of property within the purview of Section 54 of the Transfer of Property Act to a usufructuary mortgagee to satisfy the requirements of Section 54 if there is agreement between the parties that after the sale the possession of the mortgagee should be that of an absolute owner and that the intention of the mortgagor to convert the nature of possession as full owner was made clear by appropriate acts or declarations. In a case like this oral sale of the right to redeem the usufructuary mortgage could be effective and a registered instrument to evidence it is not quite indispensable.'

22. Although the decision in Sibendrapada Banerjee's case (1907 ILR 34 Cal 207) was followed by a learned Judge of the Calcutta High Court in Kaliram Majumdar's case (AIR 1933 Cal 544), yet a different view was expressed in Kulachandra Ghosh's case (AIR 1933 Cal 411) and it was observed as under in that case:--

'It is very difficult to agree with all that has been said in Sibendrapada Banerjee's case. It has been dissented from in Muthukaruppan Samban v. Mathu Samban (AIR 1925 Mad 566) and in Dawood v. Moideen Balcha (AIR 1925 Mad 566) and has been very guardedly referred to and not expressly approved in Bhaskar Gopal v. Padam Hira (ILR 40 Bom 313) : (AIR 1916 Bom 223). In Fatik Karikar v. Rajendra Nath, (1900-4 Cal WN 142) (N) it was held that where the property was in the possession of a usufructuary mortgagee, the process of making over of the property by the mortgagee to the mortgagor and redelivery by the latter to the former was not necessary to bring about a sale in favour of the former under Section 54, Transfer of Property Act, but that it would be enough if the mortgagee took the property as a purchaser and the mortgagor admitted that from that moment the purchaser held the property as purchaser and not as mortgagee. Ia Fakira Mahton v. Leakut Hosain, AIR 1914 Cal 754, the learned Judges were not inclined to hold that such a strict interpretation of Section 54 as was suggested in Sibendrapada's case was justified.'

23. It may be observed that the decision of Sibendrapada Banerjee's case (1907 ILR 34 Cal 207) was also dissented by the Madras High Court in Muthukaruppan Samban's case (AIR 1915 Mad 573) and Sheik Dawood's case (AIR 1925 Mad 566) and it was observed that the decision in Sibendra Pada Banerjee's case was also dissented by an another bench of the Calcutta High Court in Fakira Mahton v. Leakut Hosain AIR 1914 Cal 754.

24. In Kulachandra Ghosh's case (AIR 1933 Cal 411), the learned single Judge preferred to follow the decision of a bench of the Calcutta High Court in Fatik Karikar v. Rajendra Nath ((1900) 4 Cal WN 142 (N.7)) in preference to the view taken in Sibendrapada Banerjee's case (1007 ILR 34 Cal 207). In Kulachandra Ghosh's case, a sale was made to the person who was in permissive possession of the property and it was observed as under:--

'The essence of delivery no doubt is that possession should change but I think it is enough if the character of possession changed, in other words, if the vendor converted by appropriate declarations or acts the previous possession of the vendee, which in this case was permissive possession, into possession as that of a vendee. I hold therefore that there was sufficient delivery of possession within the meaning of Section 54, T. P. Act.'

25. In Fatik Karikar's case, it was held where the purchaser was in possession as an usufrctuary mortgagee, the sale to him by the mortgagor was either the sale of the equity of redemption, in which case, it being a sale not of tangible immoveable property, could be effected only by a registered instrument, or if it was not a sale of the equity of redemption, the mortgage must be deemed to have come to an end by being redeemed, in which case the property was required to be transferred to the mortgagor and then re-delivered again to the mortgagee as a purchaser thereof. It was held that the process of physical making over of the property by the mortgagee to the mortgagor and of the re-delivery of the property by the mortgagor to the mortgagee would not be necessary to bring the case within Section 54 of the T. P. Act.

26. An Sonai Chutia v. Sanaram Chutia, AIR 1916 Cal 934 a bench of the Calcutta High Court did not take the view which was expressed in Sibendrapada Banerjee's case (1907 ILR 34 Cal 207) and a distinction was sought to be drawn on the ground that there was evidence of some overt acts, namely, that On the occasion of the subsequent oral sale there was a delivery of possession in as much as the boundaries were pointed out, formal possession was delivered and the mortgage document was endorsed and handed over to the purchaser. In these circumstances, it was held that everything was done by the vendor that could be done in such circumstances to deliver possession and it was held that the delivery of possession under the circumstances was sufficient for the purposes of Section 54 of the Transfer of Property Act.

27. The same view was also taken by the Patna High Court in Santokhi Misser v. Siro Jha AIR 1934 Pat 301. The decision of the Calcutta High Court in Sonai Chutia (AIR 1916 Cal 934) was followed and it was observed that at the time of sale, the mortgagor obtained an entry in the name of the purchasers in the sherista of the Dabhanga estate, in place of the owner, in respect of the area transferred by the sale. Thus, the fact that the vendor procured mutation entries in favour of the mortgagee our-chaser was held to be sufficient to complete the delivery of possession and it was held that as the purchaser was already in possession of the property nothing further could have been done to place him in actual possession beyond the mutation of the land in the landlord's sherista and it was held that obtaining the mutation entries by the vendor in the name of the mortgagee vendee should be treated as an act of delivery of the property, for the purposes of Section 54 of the Transfer of Property Act. It pointed out that in Sonai Chutia's case the fact that the vendor pointed out the boundaries of the property which was subject of the sale and made an endorsement on the back of the mortgage bond was considered as sufficient to complete the delivery of possession. The following observations in this respect from the decision in Santokhi Misser's case (AIR 1934 Pat 301) may be quoted:--

'Apart from these reasons for maintaining the decree as it stands there is the fact that this Court has always declined to allow the process of the Court to be abused at the instance of a dishonest vendor, by ejecting from possession on a purchaser who has paid the purchase money and is in possession of the property, merely because he possesses no written instrument or because that instrument has not been registered'

(emphas added)

28. The same view was followed by the Patna High Court in Pheku Mian v. Syed Ali AIR 1937 Pat 178 and it was held that the delivery of possession when the property is already in possession of the vendee, as an usufructuary mortgagee thereof could be made by the vendor's making a declaration that henceforward whatever right he had has been transferred to the vendee. If the mortgor relinquished his rights and got the name of the mortgagee recorded in the record of rights, it would be sufficient to complete the delivery of possession and was sufficient compliance with the provisions of Section 54 of the Transfer of Property Act.

29. The Patna High Court again took same view in Shaikh Mohammad Yaquoob Ally v. Chhotey Lal Mistri AIR 1939 Pat 218. In that case, it was held that purchaser should have been in exclusive possession over the property, which was subject-matter of sale and the vendor should have no concern with the possession over the sold property and from such circumstances delivery of possession could be Inferred.

30. A Full Bench of the Patna High Court thereafter considered the matter again in Suraj Prasad v . Mt. Aguta Devi AIR 1959 Pat 153 and observed as under (at p. 158): --

'On a consideration of the authorities which I have referred to above, I am of opinion that the view expressed in the different decisions of this Court with the exception of AIR 1946 Pat 81 is correct. Oral sale accompanied by delivery of possession is one of the modes in which the sale of a tangible immoveabla property of the value of less than Rupees 100/- can be effected. I do not see any good reason why this mode of transfer should not be available to a person who sells a property of such low value, simply because the vendee is in possession of the property under some legal right on the date of the sale.......The law cannot contemplate that such a sale can only be effected by the circuitous method of getting the vendee to give up possession temporarily so that he may be put back in possession by the vendor. In my judgment, all that is necessary is that the vendor should be do whatever he can do in the circumstances so as to indicate definitely and without any ambiguity an intention to pass the title and also possession as owner to the vendee. He can do so by making appropriate declarations or by doing such acts as are necessary.'

31. The Patna High Court also dissented with the view taken in Sibendrapada Banerjee's case (1907 ILR 34 Cal 207) and the Full Bench of the Bombay High Court in Bhikhabhar's case (AIR 1963 Bom 437).

32. So far as the Nagpur High Court is concerned, in Thakurdas v. Sobhachand AIR 1915 Nag 114, the Additional Judicial Commissioner following the decision of the Madras High Court in Muthukaruppan Samban's case (AIR 1915 Mad 573) and dissented from the decision of the Calcutta High Court in Sibendrapada Banerjee's case and it was held that an oral sale accompanied by an appropriate declaration or acts would constitute delivery of possession, within the meaning of Section 54 of the T. P. Act in case where the vendee was already in possession of the property which is subject matter of sale, as a lessee thereof. This view was followed in Dinanath v. Manbodhi AIR 1916 Nag 93 and it was held that the possession of the purchaser was converted in that case by mutual agreement from that of a sub-tenant to that of a proprietor.

33. The Nagpur High Court took the same view again in Ghanram v. Paltoo AIR 1954 Nag 109 where the purchaser was already in possession as a lessee, it was held in that case that it was not necessary that there should be physical delivery of possession and it would be enough if the character of possession was changed and if the seller converted by appropriate declaration or acts, the previous possession of the purchaser from that of a lessee into plenary possession as that of the purchaser of the property which was subject-matter of sale. Then they would constitute sufficient delivery of such property, The learned Judges of the Nagpur High Court distinguished the decision of the Privy Council in Mathura Prasad's case (AIR 1921 PC 8) on the ground that it related to the validity of a mortgage deed and that the point for decision was whether there was a real sale of one cowri share in Kolhua property by Osman and on evidence it was held by the Privy Council that there was no intention to transfer the property and that it did not form part of the mortgaged property. In that case (1) there was no delivery of possession of one cowri share nor the alleged Kobala was produced nor the said instrument was registered. Thus, it was held that neither of the conditions specified in Section 54 of the T. P. Act, to make a good and effective transfer by sale of the property of the value below Rs. 100/- was fulfilled in that case. The learned Judge of the Nagpur High Court proceeded to observe as follows in the last mentioned case (AIR 1954 Nag 109):--

'The case, therefore, cannot be quoted as an authority for the proposition that where the purchaser is already in possession either as a mortgagee or as a lessee, there cannot be a delivery of the property within the meaning of Section 54 of the Transfer of Property Act.'

34. The learned Judge dissented from the decision of the Full Court of the Allahabad High Court in Sohanlal's case (AIR 1928 All 726) and agreed with the decision of the Madras High Court in Muthckaruppan Samban's case (AIR 1915 Mad 573) and Kulachandra Ghosh's case (AIR 1933 Cal 411) and held that the character of possession of the lessee was changed from that of a lessee to that of an owner of the property sold by appropriate declaration made by the vendor converting the previous permissible possession of the lessee into plenary possession as that of a vendee and that was sufficient delivery of possession within the meaning of Section 54 of the T. P. Act.

35. In Gunga Narain Gope v. Kali Churn Goala (1895) ILR 22 Cal 179, it was held that when a vendee obtained possession on the date of sale and remains in possession thereafter, it is reasonable to presume that the possession so obtained was a lawful one and had been given by or with the assent, either express or implied, of the person previously in possession, namely, the vendor. The case is an authority for the proposition that it is not necessary that there should be any formal delivery of possession.

36. In Bihari Padhan v. Daitari Das (1959) 25 Cut LT 281, it was held that When the property which was in possession of the usufructuary mortgagee was sold to him by the mortgagor and the mortgagor renounced his right and title in such property and got the name of the mortgagee recorded in the Record of Rights, it was sufficient compliance with the provisions of Section 54 of the T. P. Act and delivery of possession should be deemed to have been effected by the declaration made by the vendor.

37. In Trilochan v. Bamadev Pradhan AIR 1972 Orissa 136 the decisions of the Allahabad High Court and Bombay High Court in the case of Sohan Lal (AIR 1928 All 726 (FB) and Bhika Bhai Nana Bhai (AIR 1953 Bom 437 (FB), were dissented from by the Orissa High Court and, it was held that where the vendor (mortgagor) declared before the settlement authorities that he had sold the mortgaged property to the usufructuary mortgagee and did not contest that the mortgagee was in possession of the property, such a declaration was sufficient to constitute delivery of possession with-in the meaning of Section 54 of the T. P. Act, having regard to the fact that the mortgagee was already in actual possession. Thus, it was held that an oral sale accompanied by delivery of possession, which is one of the modes in which sale of tangible immoveable property of the value of less than Rs. 180/- can be effected had taken place; and there was no reason as to why that mode of transfer should not be available to the mortgagor of the property of such small value, simply because the vendee was already in possession of the property under some legal right on the date of sale, provided that the vendor does all that is possible for him to indicate his intention to part with the title to the property by making appropriate declarations or by doing such other acts as may be necessary.

38. Another case of Orissa High Court on the subject is Kelu Rout v. Jayananda Rout AIR 1977 Orissa 167, which was a case of the sale of property in favour of a lessee. It was held in that case that the character of possession of the lessee changed, when the vendor made a declaration that from the date of sale, the permissive possession of the lessee was converted into the possession as that of an absolute owner and that it was sufficient compliance with the provisions of Section 54 of the T. P. Act, to constitute delivery of possession and was sufficient to confer a valid title to the purchaser, in spite of the fact that the sale deed which was for a sum of Rupees 95/-, was unregistered.

39. One more case, which is also relevent to the subject and which deserves to be referred is Mahbub v. Kale Khan AIR 1936 Lab 756. In that case, Samand Khan owned the site under the property in dispute and Mahbub built a house on it. Subsequently Samand Khan sold the site to Mahbub for a sum of Rs. 98/- by means of an unregistered sale deed and recited in the sale deed that proprietary possession was given to the purchaser and when the validity of the sale was questioned, it was held that as the vendee Mahboob was already in possession of the property sold and in the nature of things, delivery of actual physical possession could not be effected to him, but the change in the nature of possession by appropriate declaration can be looked into to ascertain the factum of sale by delivery of possession.

40. A consideration of the aforesaid decisions, leads to the conclusion that the first view, which was propounded by the Calcutta High Court in Sibandra Banerjee's case (1907 ILR 34 Cal 207) and which was later followed by the Full Benches of the Allahabad High Court and. Bombay Courts in Sohanlal's case (AIR 1928 All 726 and Bhika Bhai Nanabhai's case (AIR 1953 Bom 437) proceeds on the basis that in the case of the sale of immoveable property of the value of (less than?) Rs. 100/- there are only two modes in which the sale could be effected, in order to pass a valid title under Section 54 of the T. P. Act, namely, that there should be a registered instrument evidencing the sale or there should be an oral sale accompanied by delivery of possession. In cases where delivery of possession was not possible, because the vendee was already in possession of the property sought to be sold, according to to this view, the only possible mode by which the sale of tangible immoveable property of the value of less than Rupees 100/- could be effected was by a registered instrument. The other High Courts of Patna, Madras, Andhra Pradesh, Nagpur, Orissa and Lahore and the latter decisions of the Calcutta High Court in Kulachandra Ghosh (AIR 1933 Cal 411) and Sonai Chutia (AIR 1916 Cal 934) have taken the view that in cases where the vendee was already in possession of the property which was subject-matter of sale a transfer by sale of immoveable property of the value of less than Rs. 100/- could be effected within the meaning of Section 54 of the T. P. Act, by appropriate and unequivocal declarations coupled with overt acts, as may be necessary to change the charater and nature of possession from that of a mortgagee, lessee, licensee or permissible occupant or otherwise to that of a vendee and that such declarations and overt acts on the part of the vendor may be sufficient to constitute delivery of possession. With great respect to learned Judges who have taken the first view, I would submit that what Section 54 of the Transfer of Property Act requires is the delivery of the property in the case of sale of tangible immoveable property of the value of less than Rs. 100/-, where there is no registered instrument and delivery of the property may not require actual physical delivery of possession in cases where actual physical possession of the property was already with the vandee, but the vendor by appropriate declarations or other overt acts, as may be necessary, may unequivocally demonstrate that he has relinquished his right of ownership in the property and, that the vendee would have absolute title in the property sought to be sold and such declarations or overt acts in the circumstances would amount to 'real delivery' referred to by their Lordships of the Privy Council in Mathura Prasad's case (AIR 1928 PC 8), which is necessary to complete the transaction of sale in such cases. It may be respectfully observed that if the provisions of Section 54 of the Transfer of Property Act provides two modes, by which a sale could be effected in the case of tangible immoveable property of the value of less than Rs. 100/-, then the vendor could not be deprived of one of the modes of such transfer, merely be-cause the vendee is already in actual physical possession of the property sought to be sold. It may be observed that the law provided for a registered document or oral sale coupled with delivery of the property as the alternative mode of transfer by sale of such properties because both these methods provide sufficient publicity or notoriety to the act of transfer. If the property changes hands, then every one in the neighbourhood normally becomes aware of the transfer. Similarly, registration of a deed of sale, is by itself sufficient notice of such transfer. In cases where an immoveable property of the value of more than Rs. 100/- is sold, registration of a sale-deed is undoubtedly compulsory and that is because the law makers desired to be rule out fictitious transactions. But in case? where the property sold was worth less than Rs. 100/- it was because of the small value of such property that Section 54 of the Transfer of Property Act specifically made registration of sale deed optional and provided that where there is no registered instrument of sale, oral sale coupled with delivery of the property would be sufficient to constitute a valid sale of such immoveable property. When two alternative modes of transfer by sale are provided by law in such cases, how can the parties be deprieved of one of the modes specially prescribed by Section 54 of the Transfer of Property Act, looking to the problem of transfer of properties of small valuation It is no doubt true that their Lordships of the Privy Council in Mathura Prasad's case (AIR 1928 PC 8) observed that delivery of the property must be 'real'. That observation was made by their Lordships in the context of the argument advanced before them that the sale alleged to have been made by Osman was fictitious. It may, however, be observed that their Lordships of the Privy Council in Mathura Prasad's case were not dealing with a case where the property, which was subject-matter of sale, was already in possession of the vendee in a different capacity. It is important to note that what their Lordships have observed is that there should be a 'real delivery' of the property and their Lordships have not held that there should be actual physical delivery of possession. If a rigid view is taken in the matter and if the delivery of possession is considered as equivalent to delivery of actual physical possession then in all such cases, the proposed vendee will have to firstly put the vendor into possession of the property and thereafter the vendor would have to re-deliver possession so as to put bach the vendee into possession of the property, in the very next moment. In my humble view it would simply be a needless formality. What useful purpose could be served, if the proposed vendee was required to quit the property for one moment and hand over possession of the property sought to be sold to the vendor and than the vendee again entering into possession of the same property at the another moment. The aforesaid method does not appear to be expedient. In my view, in such circumstances where the vendee is already in possession of the property, which is subject-matter of sale, in an-other capacity; and in such cases it would be enough if the nature and character of possession of the property changes, so as to make it abundantly clear by declarations or overt acts that the vendee, from the time of the sale, would remain in possession, as the absolute owner of the property in question. Such overt acts may be either in the form of getting a mutation entry made in favour of the vendee in the revenue records or the vendor may make a declaration before the settlement authorities or other competent authorities that he has relinquished his rights in the property and that thereafter the vendee would be an absolute owner of the said property. The conversion of the nature and character of possession may also be effected by the handing over of the ear-lier documents of title by the vendor to the vandee.

41. Although a large majority of cases on the subject, which I have referred to above relate to the sale of such property to the usufructuary mortgagee, yet there are oases where the property has been sold to the lessee, licensee or a person in permissive possession. Mahbub's case (AIR 1936 Lah 756) is one where the property was sold to an unauthorised occupant, who had constructed a house on the vendor's land and no actual physical delivery of possession took place nor it was possible in the circumstances of the case, yet the vendor made a declaration of converting the character of possession of the vendee as that of owner. It may be observed that formal delivery of possession should not be insisted upon in cases where the vendee was already in possession of the property, which was subject-matter of sale, before such sale took place and although real delivery of the property is an essential condition for a transfer by sale, according to Section 54 of the Transfer of Property Act, yet it would be enough in such cases if delivery of the property is indicated by appropriate declarations or overt acts made by the vendor, by which the character or nature of possession of the previous mortgagee, licensee, lessee or permissive occupant or a person otherwise in occupation of the property sought to he sold is changed into the possession of a full-fledged owner.

42. Mr. Parekh strenuously argued that in such a case where the vendee was earlier in lawful occupation of the property sought to be sold, either as a usufructuary mortgagee, licensee, lessee or a permissive occupant thereof, the proposition that actual physical delivery of possession is not necessary to constitute a transfer by sale, may be applied. But the same proposition, learned counsel argued should not be applied to the case of an unauthorised occupant or a trespasser. His submission is that a trespasser had no right or interest in the property, while occupants like lessee, licensee, mortgagee or permissive occupant had some legal right to remain in possession of the property, before the sale had taken place. The argument that a trespasser or an unauthorised occupant could not stand on the same footing as a person in permissive occupation or a person in possession of the property on basis of some legal right, like that of a mortagee, licensee or lessee, cannot be disputed; but so far as the question of delivery of possession is concerned, which is the essence of the transaction of sale within the meaning of Section 54 of the Transfer of Property Act, no distinction could be made between an unauthorised occupant or a person in permissive possession. Mr. Parekh made a reference to some of the cases cited above where the learned Judges referred to the fact that the vendee was earlier in occupation on the basis of a legal right or was lawfully in possession. That is undoubtedly true, but in none of these cases, it has been held that the rule which has been made applicable to a person in permissive possession or in possession by virtue of a lawful right, could not be applied in the case of an unauthorised occupant or a trespasser, so far as the question of delivery of possession, within the meaning of Section 54 of the Transfer of Property Act was concerned. On the other hand, the decision of the Lahore High Court in Mahbub's case (AIR 1936 Lah 756) is definitely a case in which the person was in unauthorised occupation of a site which belonged to another by constructing a house thereon and the owner of the site, instead of taking course to litigation for recovery of possession thought it proper to sell the site to the unauthorised occupant. In that case also, if delivery of actual physical possession would have been considered to be an essential condition, because the sale was made of property of the value less than Rs. 100/-, then a formal delivery of possession would have been insisted upon, which was not possible in the circumstances as the proposed vendee had already constructed a house over the vacant site, but the formality was held to be unnecessary and the sale was upheld.

43. As result of the aforesaid discussion, I am in respectful agreement with the decisions of the Patna, Madras, Andhra Pradesh, Lahore, Nagpur and Orissa High Courts and of the Calcutta High Court in Sonai Chutia's (AIR 1916 Cal 934) and Kulachandra Ghosh's (AIR 1933 Cal 411) cases and respectfully differ from the view taken by the full benches of the Allahabad and Bombay High Courts in Sohanlal's (AIR 1928 Ali 726) and Bhikhabhai Nanabhai's (AIR 1953 Bom 437) cases and also from the view taken by the Calcutta High Court in Sibendrapada Banerjee's case (1907 ILR 34 Cal 207).

44. Moreover, the view which I have expressed above has also been taken by a Division Bench of this Court in Bhanwarlal v. Dhulilal AIR 1959 Raj 218 whrein it was observed as under (at p. 220) :--

'In the present case the document of Smvt. year 1998 clearly recites on behalf of the transferor that he will have no right or concern with the mango tree hereafter and that he had sold the same to Dhulilal and Chandralal, who are to enjoy the same till the tree exists. The vendor renounced all his rights to the tree with effect from that date. These declarations clearly purport to change the character of the possession of the vendees from that of mortgagees to that of purchasers. In our opinion such declaration amounts to a delivery of possession in the present case within the meaning of Section 54 of the Transfer of Property Act, and the transfer is completed.'

45. Thus, a review of the case law on the subject leads to the conclusion that if it is not absolutely necessary that a sale of immoveable property of the value of less than Rs. 100/- in such cases, where the vendee was already in possession of the property sought to be sold in a different capacity, could only be made by a registered instrument. But in those cases, transfer of property by sale could be effected by delivery of possession and where the vendee was already in actual physical possession of the property sought to be sold, it is not possible to transfer actual physical possession to him and it is not desirable that a mere formality should be undergone that the vendee should hand over possession back to the vendor for one moment who may again put the vendee into possession in pursuance of the sale, the very next moment; still delivery of the property in such cases may be effected by bringing about a change in the nature or character of possession of the vendee by declarations and such other acts on the part of the vendor, as may be necessary to complete the recognition of the right of ownership of the vendee and for making his title absolute. Therefore, there can be an oral sale of immoveable property of the value of less than Rs. 100/-, coupled with delivery of the property and if the property is already in possession of the purchaser, then by making such declarations and overt acts which may be necessary for vesting the rights of ownership of the sold property in the vendee.

46. In the present case, it is In evidence, which has been believed by the two courts below that on June 14, 1958 Suganchand, one of the contesting defendants, went to Chandai, the place where the plaintiffs were residing and paid a sum of Rs. 99/- as the price of the property in dispute and the plaintiffs handed over possession of the said property to the contesting defendants on that very day by handing over to him the earlier patta of the property in dispute, which has been produced as Ex. A. 8 on the record. Besides the oral transaction of sale, coupled with the delivery of the earlier patta Ex. A. 8, the plaintiffs also executed an unregistered document of sale, which is Ex. A. 9.

47. It was argued by the learned counsel for the appellants that the patta Ex. A. 9 was inadmissible in evidence because of the provisions of Section 54 of the Transfer of Property Act read with Section 49 of the Registration Act. The proposition that a sale of immoveable property could not be effected by an instrument which has not been registered is beyond doubt, irrespective of the value of the property. If a document of sale is executed by the vendor, the same must be registered in order to constitute a document evidencing the contract of sale. In this view of the matter, the document Ex. A. 9, which has not been registered, cannot be held to be admissible or looked into for passing a legal title from the plaintiffs to the contesting defendants, by sale of such property.

48. It was then argued by the learned counsel for the repsondents that the said document can at least be looked into for the purpose of considering the nature of possession of the defendants over the disputed property, under the proviso to Section 49 of the Registration Act the Proviso to Section 49 of the Registration Act only authorises the production of an unregistered deed of sale or other document affecting immoveable property, which is required by the Registration Act or the Transfer of Property Act to be registered, as evidence only in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument, or for the purposes of looking into the nature of possession or for the purposes of Section 53A of the Transfer of Property Act, as evidence of para performance. The present case is not one for specific performance of an agreement to sell nor if is a case where any collateral transaction not required to be effected by a registered instrument might be the subject-matter of dispute between the parties in the suit. The case directly relates to possession on the basis of title, in which the defence of transfer of ownership by sale has been taken and the unregistered Instrument cannot be used for the purpose of evidencing the sale in such a suit, I shall deal with the question of admissibility of the document for the purposes of Section 33A of the Transfer of Property Act as evidence of part performance separately. It may, however, be observed, that the document in question cannot be considered for looking into the nature of possession of the defendants. In Varada Pillai v. Jeevarathnammal AIR 1919 PC 44 it was held that a document which should be registered but was not, was admissible to explain the nature of the possession of the person. However, Varada Pillai's case was specifically explained by their Lordships of the Supreme Court in Mst. Kirpal Kaur v. Bachansingh AIR 1958 SC 199 and it was observed that in Varada Pillai's case Duraisani had got into possession only after the said unregistered document was executed and claimed to retain possession only under the aforesaid unregistered document and on that basis it was held to be admissible in evidence to show the nature of his possession; but in Mst Kirpal Kaur's case their Lordships of the Supreme Court observed that Harnam Kaur was in possession from before the date of the document and held that to admit the unregistered document in evidence to show the nature of her possession subsequent to the execution thereof would be to admit it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into permissive possession and thus to give effect to the agreement contained in the unregistered document, which could not be done for want of registration. Their Lordships of the Supreme Court, therefore, held that to admit the unregistered document in evidence in such a case would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act. In the present case, also the contesting defendants claim to be in possession of the property in dispute from before the unregistered document Ex. A. 9 was executed. If the said document is admitted in evidence, it would have the effect of converting the earlier adverse possession of the contesting defendants into permissive possession on the basis of Ex. A. 9 and would set at naught the provisions of Section 54 of the Transfer of Property Act and Section 49 of the Registration Act. The unregistered deed of sale cannot, - therefore, be admitted into evidence in the present case for looking into the nature of possession for the same reasons as in Kirpal Kaur's case (AIR 1958 SC 199).

49. However, there is no question, in the present case, about the terms on which the sale had taken place, but the only question involved is as to whether the contesting defendants were in possession of the property as owners thereof and the plaintiffs were not entitled to a decree for possession. There is sufficient oral evidence on record which has been relied upon by the trial court, including the statements of D. W. 3 Suganchand and D. W. 1 Sampatraj, coupled with the fact that the patta Ex. A. 8 of the disputed property was produced in the suit lay the contesting defendants. The plaintiffs have given a fanciful story as to how the patta Ex. A. 8 came into the possession of the defendants and it was stated by him that the said patta was kept in the house in dispute and it was taken possession of by the contesting defendant Sugan Chand, when he unlawfully took possession of the said house in June, 1958, This story has been disbelieved by both the courts below and it has been observed that no person would keep valuable documents of title like a patta in a vacant and dilapidated house, while the plaintiffs themselves were residing in a far distant place Chandai, in district Aurangabad in the State of Maharashtra for almost 30 years. If the plaintiffs did not hand over the patta Ex. A.8 to Sugan Chand, as stated by him as D. W. 3, then how could the plaintiffs' document of title relating to the disputed property travel to the defendants and how could they produce the said document Ex. A.8 from their custody? The postcard Ex. A.2 has been admitted by the plaintiff p. W. 9 Sheshmal to be in his hand-writing, in which the plaintiff expressed the intention of selling the disputed property and asked the contesting defendants to find out a buyer for the said property. The other plaintiff, Parasmal had also expressed the same intention in the letter Ex. A.2. Morever, the letter Ex. A.10 completely exposes the falsity of the case of the plaintiffs, as it clearly refers to the alleged sale, but at that time the grouse made by the plaintiff Parasmal was that the sale was obtained by fraud and deceitful means. This letter Ex. A.10 has been produced by Sampatraj D. W. 1 and has been proved by him. Learned counsel for the appellants submitted that the appellants had, no opportunity to rebut the evidence produced by Sampatraj. The plaintiffs, if they so desired, could have led evidence in rebuttal. But from the record of the suit, it appears that after the closure of the defendants' evidence, the plaintiffs never sought any opportunity to lead evidence by way of rebuttal. All these circumstances, coupled with the various letters written by the plaintiffs to the contesting defendant Suganchand and the delivery of the patta Ex. A.8 leads to an irresistible conclusion that the sale of the house in dispute was effected by the plaintiffs or June 14, 1958 in favour of the contesting defendants by delivery of the property, namely by making in unequivocal declaration coupled with delivery of patta Ex. A.8 If the property in dispute was already in possession of the contesting defendants, then what else could have been done by the plaintiffs to complete the delivery of the property to them, for the purpose of evidencing the transaction of sale? It may not be lost sight of that the disputed property was situated at a place far away from the town where the plaintiffs were residing for the last several years and they tried to transfer the title to the said property in the manner which was least possible in the circumstances of the case to make the defendants absolute owners of the property in dispute.

50. Learned counsel for the appellants also argued that no case of oral sale was set up by the defendants in the pleadings and that no evidence was led on that question. It appear? from a perusal of the written-statement that the contesting defendants amended their written statement on December 5, 1967 and in para 3 of the additional pleas it was added that the plaintiffs made an oral sale of the disputed house and recognised the contesting defendants as the owners of the house and also executed a document in respect thereof on the same day, Thus, a case of oral sale coupled with overt acts was pleaded and the defendant Suganchand, who appeared as D. W. 3, in his statement on oath stated that Sheshmal demanded Rs. 99/- which he paid and the patta Ex. A.8 was handed over to him, in pursuance of the sale of the disputed house. Thus, apart from the document Ex. A.9, there is considerable evidence on record both direct as well as circumstantial, which has been accepted by both the courts below to come to the conclusion that there was an oral sale of the house in dispute by the plaintiffs in favour of the contesting defendants, by delivery of the property and, that the plaintiff-appellants recognised the defendants' right and title to the house in dispute and handed over the patta Ex. A.8 thereof to the defendant-respondent Suganchand, thereby causing a change in the nature and character of possession of the vendee. The contesting defendants might be in permissive possession or in adverse possession of the disputed property from before June 14, 1958 when the sale was effected, but thereafter the possession of the contesting defendants became that of full owners on the said property, by an oral sale for a sum of Rs. 99/-, effected by delivery of the property.

51. Another question which has been raised by the learned counsel for the appellants was that the first appellate court committed an error in allowing the defendant-respondents to raise the plea of part performance at the stage of first appeal, although no such plea was ever taken in the written statement filed by the defendants. It was urged by the learned counsel that the plea of adverse possession and that of part performance were two different things and were mutually destructive of each other. Tri-bhovan Hargovan v. Shankar Desai AIR 1943 Bom 431 was relied upon by learned counsel in support of the submission that the plea in respect of part performance should not be allowed for the first time by the appellate court. It may be observed in this respect that if sufficient and necessary facts have been pleaded, on the basis of which a plea of part performance could be legitimately raised, then it would not be proper to deprive the defendant of the defence available to him under Section 53A of the Transfer of Property Act on the ground of mere technicality.

52. In Malikajappa Bhimappa Bennur v. Bhimappa Kashappa, Parasannavar AIR 1966 Mys 86, a similar situation arose, as no specific plea of part performance was taken in the written statement filed in answer to the claim of the vendor for possession against the vendee. It was held in the aforesaid case by a learned Judge of the Mysore High Court that although the plea about the applicability of Section 53A of the Transfer of Property Act was not raised by the defendant in his pleadings, yet it would not be justified in the circumstances of the case to take a too technical view of the matter, by holding that the defendant should not be allowed to avail himself of the defence, when necessary facts have been pleaded and the courts below have gone into the question without any objection.

53. In Nathulal v. Phoolchand AIR 1970 SC 546 their Lordships of the Supreme Court laid down that the following conditions were necessary for making out the defence of part performance:--

'(1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract.

(3) that the transferor has done some act in furtherance of the contract, and

(4) that the transferee has performed or is willing to perform his part of the contract.'

54. It was held that if the aforesaid conditions were fulfilled, then notwithstanding that the contract though required to be registered has not been registered, or, where there is an instrument of transfer, but the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property, of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

55. There is 110 doubt that the pleas of adverse possession and part performance of a contract of sale are destructive of each other, yet it is apparent in the present case that the plea of adverse possession, though raised in the written statement but was sever pressed by the defendants; on the other hand a plea of oral sale coupled with delivery of the property was specifically pleaded and was sought to be pressed and proved by the defendants. As the plea of adverse possession was not pressed by the defendants any further, they could not be debarred from raising the plea of oral sale coupled with the delivery of the property under Section 54 of the Transfer of Property Act, as also the plea of part performance under Section 53A of the Transfer of Property Act. The document Ex. A.9 may be looked into for the purposes of the plea of part performance, under the proviso to Section 49 of the Registration Act. Both the courts below have found the execution of document Ex. A-9 proved and it clearly discloses that the plaintiffs sold the house in dispute for a sum of Rupees 99/-, on the terms and conditions contained in the said document, which could be ascertained with reasonable certainty. It is also apparent that the vendee being already in possession of the property which was sought to be sold, continued to remain in possession thereof in part performance of the contract since June, 1953 and the plaintiffs did not make any attempt to disturb the possession of the vendee at any time. In fact, the present suit was filed on October 21, 1964, after the lapse of several years and during all this period the contesting defendants remained in peaceful possession and enjoyment of the property in dispute. It is also in evidence that the vendee performed his part of the contract and paid a sum of Rs. 99/- as the sale price for the disputed land and that nothing else was to be done by the vendee in pursuance of the contract to complete the sale. The act of plaintiffs, in handing over the earlier patta Ex. A.8 relating to the disputed property to the vendee, clearly go to show that they were willing parties to the transaction of sale and after accepting Rs. 99/- as the sale price of the property, they had delivered the patta Ex. A.8 to the defendant Suganchand in token of their relinquishment of title over the disputed property and in recognition of the absolute title of the contesting defendants. In the document Ex. A.9 it has been mentioned by the plaintiffs that the defendants were already in possession of the property for several years and as the defendants were already in possession of the said property, the question of delivery of physical possession thereof could not arise. Whatever overt acts could have been performed by the plaintiffs in order to complete the title of the defendants, like delivery of patta Ex. A.8, were willingly undertaken by them.

56. In view of the aforesaid discussion, there is no merit in this appeal and the same is hereby dismissed. The parties are left to bear their own costs.


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