ADDU ACHIAR Vs. CUSTODIAN, EVACUEE PROPERTY

JUDGEMENT

(1.) THIS application for the issue of a writ of CERTIORARI is directed against the order of the Custodian, Evacuee Property, who refused to confirm the sale of an Ice Factory in favour of the Petitioner. The brief facts relating to this case are that Messrs. Jehangir Hormusji, a firm carrying on business in Secunderabad owned premises 106/A Alexandra Road. This firm erected an Ice factory in the premises. Later on this Ice Factory was agreed to be sold by the firm to one Abdul Majeed Paul for a sum of Rs. 1,20,000/ - and the vendee paid Rs. 60,000/ -as. earnest money and this is evidenced by Document No. 7 dated the 23rd February 1947 forming part of the record in this case. It was agreed that the vendee was to pay the balance of a purchase price by 15 -8 -1947 on which date a regular sale deed was to be executed. The vendor Abdul Majid Paul took the premises on rent and ran the factory there. On the 19th November 1948 Abdul Majeed Paul, entered into an agreement with the present Petitioner agreeing to sell the Ice factory to the Petitioner for a sum of Rs. 80,000/ - and received from the Petitioner a sum of Rs. 25,000/ - as earnest money and the understanding was that the balance of the consideration, namely, the sum of Rs. 55,000/ - was to be paid and the sale completed by 5 -12 -1948. Along with this agreement of sale was attached a list of the properties that were agreed to be sold, and this list contains 33 items. The balance of Rs. 55,000/ - was paid on the 13th of December 1948 by the Petitioner to the vendor. The vendor, Abdul Majeed Paul, passed a receipt in favour of the Petitioner for Rs. 55,000/ -. This document is Exhibit 2. On the same day the vendor addressed a letter to the vendee the Petitioner stating that he had received Rs. 80,000/ - the full sale price of the Ice Factory, and that the 'Ideal Ice Factory' had been sold and delivered to the Petitioner. On the same day Abdul Majeed Paul wrote to Messrs Hormusjee and Co., informing them that he had sold the Ice Factory to Addu Achiah and that thenceforward he would run the factory in their premises and continue to be their tenant herein Majeed Paul also requested that the necessary transfer or change of tenancy might be recorded. Simultaneously with this, the Electricity Department was also addressed by Abdul Majeed Paul stating that the electricity charges which hitherto were being paid by him would be paid by Addu Achiah as he had purchased the ice factory. A similar communication was addressed to the Municipality stating that the business hereafter would be conducted by Addu Achiah. In March 1950 Abdul Majeed Paul left for Pakistan and he was declared an evacuee and all his properties declared evacuee properties.

(2.) THE present Petitioner, Addu Achiah, filed an application before the Custodian for confirmation of the sale of the Ice Factory in his favour by Abdul Majeed Paul. On the 14th August 1950, the Deputy Custodian confirmed the sale but the Custodian under his re -visional jurisdiction issued a notice to the petitioner to show cause why the order of the Deputy Custodian confirming the sale should not be set aside.

(3.) THERE can be no doubt that under the provisions of Section 17 of the Registration Act where immovable property of the value of more than Rs. 100/ - is conveyed? such sale could only be effected by a document of sale duly registered. So the whole question will not turn upon as to whether it was immovable property that was sold to the Petitioner and as such whether the document evidencing the sale -required registration. In order to determine as to whether the property sold was immovable -property, it would be necessary to know what the subject matter of the sale was and for this purpose it would be advisable to know that the agreement of sale dated the 19th November 1948 purported to convey. The first paragraph of the agreement reads as under :