GOMATHY AMMAL Vs. PADMAVATHI AMMA

JUDGEMENT

(1.) One Kochukunjamma executed a gift deed Ext. D-6 with respect to the suit property and to some of her other assets in favour of her brother's son, Parameswaran Pillai, in the year 1938, reserving the full proprietary interest and possession to herself and stipulating that Parameswaran Pillai may enjoy the property absolutely after her. On the 8th March, 1946, Parameswaran Pillai sold the property by Ext. P-2 to one Krishna Pillai and his wife Madhavi Amma, reciting falsely as has now been found, that Kochukunjamma was no more and that he had become the full owner. The property was at the time outstanding on a mortgage with defendants 1 and 2, under Ext. P-1 dated the 6th September, 1943, executed by Kochukunjamma and by Parameswaran Pillai. It has been found and that finding has not been challenged, that Kochukunjamma died on the 14th October, 1946. Krishna Pillai and Madhavi Amma sold the property to the plaintiff under two sale deeds, Ext. P-4 dated the 2nd December and Ext. P-3 dated the 16th December, 1957. The plaintiff who is the appellant in this second appeal instituted the present suit for redemption of Ext. P-1. Despite Ext. P-2, Parameswaran Pillai had sold the property by Ext. D-5 to defendants I and 3 on the 3rd September, 1951. According to them, no interest passed under Ext. P-2, the earlier sale deed. The first court accepted their contention; it also held, that though Parameswaran Pillai became the owner of the property after the death of Kochukunjamma, the vendees under Ext. P-2 or the plaintiff having failed to exercise their option under S.43 of the Transfer of Property Act, Ext. D. 5 has to prevail and the suit has to fail. In appeal by the plaintiff, the court accepted the above view but differed from the primary court by holding, that defendants 1 and 3 took Ext. D-5 with notice of the prior transfer; it however dismissed the suit on the ground, that the property, which is of kandukrishi tenure having been registered in favour of the defendants 1 and 3 the plaintiff has no title to it.

(2.) The plaintiff has a case, that under Ext. D-6 Parameswaran Pillai took a vested interest which he was capable of transferring under Ext. P-2 and Kochukunjamma having died, the plaintiff could recover. Though the Munsiff was prepared to accept this case, the Judge was not. On going through the relevant provision in Ext. D-6, we are inclined to agree with the latter. There is no dispositive word in Ext. D-6 conveying a present interest to Parameswaran Pillai, and on the contrary there is the reservation of full proprietary interest and possession for Kochukunjamma. The stipulation that Parameswaran Pillai may take the property absolutely after her lifetime is no conveyance of an interest in praesenti. As for the present, the only stipulation was, that Parameswaran Pillai may effect mutation in his name forthwith. Mutation may evidence a transfer of an interest but is not per se a transfer. Even if the donor had the intention at the back of her mind to create a vested remainder, she has not succeeded in effectuating that intention by the use of apt expression.

(3.) The main question turns on the true understanding of the scope and content of S.43 of the Transfer of Property Act, which reads as follows:-