MEENAKSHISUNDARAM PILLAI Vs. STCHENCHU MUDALIAR

JUDGEMENT

(1.) The point that arises for determination in this second appeal raises -a very nice and interesting question. The plaintiff is the appellant. He having obtained a decree against defendant 1, attached the suit property alleging that the same was defendant 1's property in which he had some right, title or interest. Defendant 2 thereupon made a claim to the executing Court and on such claim the property would appear to have been released from attachment. The plaintiff then instituted the present suit as a regular suit for having set aside the effect of that order in execution proceedings. The Court of first instance granted a decree to the plaintiff, but the lower appellate Court dismissed the plaintiff's suit, The plaintiff has thereupon filed this second appeal.

(2.) The manner in which this case would appear to have been presented to the lower appellate Court was that there was an oral contract by and between defendant 1 and defendant 2 to the effect that on defendant 1 paying to defendant 2 the amount which defendant 2 was owing at the time to one Venkatachala who was the defendant 2's vendor, defendant 2 should make a conveyance or effect a re-sale of the property to defendant 1. The lower appellate Court has dismissed the suit on the ground that, assuming the -contract to have been proved to be admissible in evidence it nevertheless was merely a personal contract, a contract independent altogether of the contract of sale and therefore that under the terms of such contract the period fixed by the contract having expired and the contract not having been performed by defendant 1, in any case he has no right, title or interest in the property which can foe made subject of the attachment at the instance of the plaintiff decree-holder. It seems to me, however, unnecessary to consider that question on which the lower appellate Court disposed of the matter. The learned vakil for the appellant put his case thus: He said: Here is a contract between defendant 1 and defendant 1 for sale of the property. No doubt, as between them it is not open to defendant 1 to show that the contract was not what the document purported to be, a sale; but I am a stranger to the contract. I am not a party to the contract; nor am I a representative of the party to the contract and therefore I am entitled to come into Court and show that what really took place between the parties was not a sale but the contract was really one of mortgage.

(3.) Undoubtedly if all that there was in law in the enactments was Section 92, Evidence Act, he would have been in the right and his contention would have had to be given effect to. Undoubtedly, if we have regard only to Section 92 or Section 93, Evidence Act, which is really in the nature of a proviso to Section 92, the plaintiff, who is a third person and was not a party or privy to the contract, is not prevented from showing what really the contract between the parties was. That undoubtedly was the basis of the decision of their Lordships of the Judicial Committee in the case of Maung Kyin V/s. Ma Shwe La A.I.R. 1917 P.C. 207. The facts of that case seem to be uncommonly like the facts of the present case. But on a careful examination of the case it turns out that their Lordships were considering transactions in Burma which arose there long before the Transfer of Property Act was extended to that province. The contention, as put forward by Mr. Venkataram Iyer, the learned vakil for the respondent, was this: The plaintiff who is the attaching creditor must, before he can sustain any order of attachment, show that his judgment-debtor has some right, title or interest in the property itself; it will not do for him merely to show that he has some contract enforceable against the person of defendant 2, but it is necessary for him to go further and show some contract, grant or other disposition of property under the terms of which he has now vested in him some right which may be called a right in immovable property. This he could show only in one of two ways, either by showing that what purports to be a sale-deed was not an absolute sale-deed but with the reservation of certain rights, such reservation being obviously of such a character that what purports to be a sale-deed would no more be a sale-deed, or in other words, that, the vendor under the sale-deed did not effect an absolute sale but reserved in himself certain rights of immovable property, or by showing that at the time of the sale the purchaser under the contract of sale entered into an agreement by which he (the purchaser) did something by which he conveyed to the seller certain rights in immovable property. The matter might be put in other words and more simply. The contention of the appellant would amount to claiming that a vendor of property may under the terms of the Transfer of Property Act and the Registration Act show that what purports to be a sale was really a mortgage, or that on the sale of property a contract was entered into by parol by the purchaser which had the effect of giving him (the vendor) right to redeem the property. Mr. Venkatarama Iyer argued that if it was the latter, namely the conveyance by the purchaser to the vendor of the real right of equity of redemption, that was a contract which related admittedly to immovable property of over Rs. 100 in value and could be effected only by a registered instrument in writing and as there is no such instrument no such contract could be proved.