SREERAM VENKATASUBBAMMA Vs. SOMISETTI SUBBAYYA

JUDGEMENT

(1.) THE point that calls for adjudication in this Second appeal relates to the effect of an oral sale of the rignt to redeem a usufructuary mortgage to the mortgagee. THE facts that have a bearing on this controversy may be shortly set out. A small house situated in Kanigiri originally belonged to Menta Patchayya. He had two wives, Subbamms and Kanakamma alis Audemma. THE plaintiff is the daughter of the first wife. Her mother pre-deceased her father, who died on 25-12-1917. Subsequent to the dealt of her husband, Kanakamma acquired absolute right to this property under some arrangement with which we are not concerned here. She executed a usufructuary mortgage over this house in 1919 to the first defendant. A year later she sold her right to redeem the property to the mortgagee himself under an oral sale. Sometime later, the first defendant, mortgagee, sold the house to the second defendant. In the year 1922, Kanakamma died leaving behind her step children, namely, the plaintiff and her sister as her sole heirs. 3 In the year 1953, i.e., thirty one years after they succeeded to the estate of Kanakamma, the present suit was instituted for redemption of the mortgage and for other incidental reliefs. 4 THE suit was contested on the defence that the first defendant had become the full owner of the property by virtue of the sale of the equity of redemption in the year 1920, and, consequently, the right to redeem did not inhere in the reversioners of Kanakamma. 5 This was sought to be met by the answer that there was no oral sale as pleaded by the defendants and that, in any event, the sale was ineffective, it not having been evidenced by a registered instrument. 6 This contention of the plaintiff did not prevail with the Dt. Munsif, who accepted the defence as to the factum, and validity of the oral sale. In the result, he dismissed the suit. 7. On appeal, the Subordinate Judge, Kavali, confirmed the judgment and decree of the trial Court. 8. THE aggrieved plaintiff carried the matter in second appeal to this Court. When it came on for hearing before our learned brother, Manohar Pershad J., he referred it to a Bench, as he felt that an important question of law was involved in this appeal. 9. THE primary question that falls to be determined in this second appeal is as to the impact of the relevant statutory provisions of Transfer of Property Act on the sale. 10. At the outset, it must be mentioned that the finding that there was an oral sale as pleaded by the defendants is not attacked before us. We may, therefore, proceed on the assumption that there was a sale of the right to redeem the mortgaged property in the year 1920. 11. In order to appreciate the issues involved in this appeal we have to turn to the provisions of Section 54 of the Transfer of Property Act. It recites: " Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. 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 be made only by a registered instrument. In the case of tangible immoveable property, of a value of less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery ot the property. 12. In this enquiry we are first concerned with the connotation of the expression "tangible immoveable property." Could the right of the mortgagor in a usufructuary mortgage he described as tangible immoveable property? THE view sought to be pressed upon us by Sri Venkataramiah, learned Counsel for the plaintiff is that the right of the mortgagor in a usufructuary mortgage is intangible property and as such it is excluded from the purview of the third paragraph of Section 54 of the Transfer of Property Act. 13. THE corner-stone of this argument is the decision of Bhasyam Ayyangar J. in Ramaswami Pattar v. Chinnan Asari, ILR 24 Mad 449 at p. 463. THE learned Judge observed: