KUPPUSWAMI GOUNDAN Vs. CHINNASWAMI GOUNDAN

JUDGEMENT

(1.) The question for determination in this second appeal has turned out to be one of considerable difficulty. It has reference to and bears upon the terms of Section 50, Registration Act. The facts on the basis of which the question has been raised may be briefly set out. The plaintiff is the appellant in this Court. He instituted the suit from which this second appeal has arisen for recovery of possession of certain items of property. He claimed a right to such possession on the title acquired by him under a registered sale-deed, Ex. A, in the case bearing date 15 June 1922. The defendants who are the respondents here claim a right to the properties under an unregistered sale-deed, Ex. I in the case bearing date 5th June 1917. There was some dispute at some stage with regard to the extent of the properties covered by these two deeds of sale, but for the purpose of the present appeal we must take it that both the documents cover and include the properties, the subject-matter of this suit. Both the lower courts have concurred in dismissing the plaintiff's suit and hence this appeal.

(2.) Mr. T.M. Krishnaswami Ayyar, the learned vakil for the appellant, has based his argument before us entirely on the terms of Section 50, Registration Act. His contention was that there was a registered deed of sale in favour of his client and the defendant was claiming under a deed which was unregistered and therefore the terms of Section 50 applied directly and that, therefore, the lower Courts were wrong in not giving effect to the sale-deed in favour of his client, the plaintiff, and in not granting a decree as prayed for in his favour. He has also relied on a case reported in Mohamed Kasim Ali Saheb V/s. Mir Gulam Ali Sahib [1914] M.W.N. 55. Undoubtedly that case is a direct authority for the contention on behalf of the appellant. It must, to begin with, be observed that the contention of the appellant, if accepted in its entirety, comes to this that if some transaction in the nature of a transfer of property should have been effected by an unregistered instrument, however valid at the time when it was made and even though such transfer should have been given effect to by all parties concerned, still it is open years afterwards to a party to obtain a transfer from the original transferrer of the property but under a registered instrument and claim to be entitled to dispossess the first transferee. So stated, undoubtedly the proposition would be seen almost to be monstrous and one can understand the unwillingness of many Judges of this Court to put any such construction upon Section 50, Registration Act. But in this case the lower appellate Court has arrived at the finding that the sale to the defendants was not under an unregistered instrument. According to the finding the sale was effected by an oral agreement to sell accompanied by delivery of possession. That, as I read the judgment of the lower appellate Court, is the finding arrived at apparently as a question of fact. If the circumstances were such that we should deem ourselves bound by such a finding of fact duly arrived at by the lower appellate Court, we should really find ourselves in a position where we could not possibly interfere. It, therefore, becomes necessary to see whether this finding of fact has been properly arrived at, especially having regard to the pleadings in the case. If we take the plaint it is an ordinary suit for possession on a sale-deed and there is no reference in the plaint, so far as I am able to see, to the Sale-deed in favour of defendant 1 or any transaction of sale in his favour. But in para. 5 of the written statement it is stated thus: The suit land originally belonged to defendant 4 but defendant 4 morally sold it to this first defendant in June 1927 for Rs. 30 and received Rs. 5 in cash and got a promissory note executed for Rs. 25 from this defendant and delivered possession of the property to this first defendant. He has also executed a sale-deed on 5 June, 1917 in support thereof.

(3.) And then defendant 1 goes on to state that since then defendant 1 has himself been enjoying the property with absolute rights and has paid the assessment. Though there is a reference to an oral sale in para. 5 defendant 1 proceeds clearly to indicate that subsequently there was a sale-deed executed obviously embodying the terms of the sale. No doubt there is also reference in the same paragraph to delivery of possession by the vendor. The question in this state of the facts is whether, properly speaking, the sale under which defendant 1 claims should be regarded as a sale by the unregistered instrument or by delivery of property. On a reading of the plaint in this case I am quite satisfied that the sale pleaded by-defendant 1 in his written statement was not a sale by delivery of property. The expression "sale by delivery of property" should properly be construed only as referring to and comprising a case where the parties agree that the transaction of sale should be effected by delivery of property and only in that way and cannot possibly be construed as to include a case where the parties agree to reduce to the form of a document the terms of the sale. The moment the parties for some reason consider that it is not sufficient to effect the transaction of sale by mere delivery of property, but require that as evidence of such transaction there should be a deed or document, the transaction can scarcely be correctly described as one effected by mere delivery of property. Further in the case of what are called sales effected by delivery of property, there is presumably a reference to the terms having been settled by and between the parties by parol and then the transaction effected and carried out by delivery. But the moment the parties reduce the terms to writing, it is the writing that thereafter must be regarded as containing and setting out the terms of the contract, and it would not be an apt or correct description of the transaction to call it a sale by delivery of property. The learned District Judge, in the Court below, has, even though he has more than once in the course of the judgment referred to this unregistered document, called the transaction merely one of sale by delivery of property.