MADHAVRAO MORESHVAR Vs. KASHIBAI DATTUBHAU

JUDGEMENT

(1.) Both the lower Courts have held that the documents, on which the respondents relied in support of their case, were in the nature of a sale of immoveable property of the value of more than Rs. 100, and that, as those documents were not registered as required by Section 54 of the Transfer of Property Act and by Section 17 of the Registration Act, the respondents had not acquired the right to exemption from assessment which they pleaded in defence to the appellant's claim. But " sale," as defined in Section 54 of the Transfer of Property Act, is "a transfer of ownership in exchange for a price paid or promised or part paid or part promised." And, as held by a Full Bench of three Judges of this Court in Samaratmal V/s. Govind (1901) I.L.B. 25 Bom. 696 : 3 Bom. L.R. 384, the word " price" is used in the sections relating to sales in the Transfer of Property Act in the sense of money. In the present case, it is found by the Courts below that the consideration for the transaction relied upon by the respondents consisted of services which they had rendered to the appellant's predecessor in title in the past and which they were to render in future. Such a consideration cannot be regarded as " price". The consideration, even if it could be assessed in money value, is vitiated by the fact that it is vague and uncertain as to future services. It is true that in his deposition the first respondent (defendant No. 1) states that he had rendered assistance to the Inamdar Sarvottamrao in certain suits, and that he had lent him monies from time to time. But there is no evidence to show that the remission of assessment by Sarvottamrao was in consequence of any contract of sale between him and the respondents and that the consideration for the contract moving from the latter was the price calculated at the money value of the services which they had rendered and the loans which they had lent to Sarvottamrao. The documents relied upon by the respondents in support of their right to exemption from assessment make it quite clear that, as a reward for the services which the respondents had rendered and were expected thereafter to render to him, Sarvottamrao made a grant of the assessment to the respondents. The rendering of the services was not the consideration but merely the motive of the grant.

(2.) The transaction, on a proper construction of the document, must be regarded as one of gift, not sale. It was a gift of Sarvottamrao's right to the assessment of the dhara, which the respondents held, and such a right has been regarded as nibandha in Hindu law. Morbhat V/s. Gangadhar Karltare (1883) I.L.R. 8 Bom. 234. It is immoveable property. Venkaji V/s. Shidramappa (1894) I.L.B. 19 Bom. 663, and Madhavrao V/s. Jagannath (1889) P.J. 75. There can be no gift of immoveable property except by a registered instrument, signed by or on behalf of the donor and attested by at least two witnesses. ( Section 123 of the Transfer of Property Act.) There being no such instrument in support of the respondents title, the right they have set up in answer to the appellant's claim must be negatived.

(3.) But it was urged before us by their learned pleader that the transaction, evidenced by the documents relied upon by the respondents in support of their rights, was in the nature of a relinquishment by Sarvottamrao of his right to the assessment leviable on the dhara holding; that, as such, it could be proved by the anujnyapatra (Exhibit 30) which did not require registration, since it was not a deed of transfer but was an order addressed by Sarvottamrao to his own officers, and, as such, containing an admission of the relinquishment. No doubt the effect of the grant of the right to assessment leviable on the dhara holding was that the owner of the right, so far as he was concerned, relinquished it in favour of his grantee; but all the same it was a transfer of the right. The fact that the grantee of the right happened in the present case to be the person liable to pay the assessment was a mere accident. After the grant he could hold and deal with the right separately from the dhara holding. He could sell or mortgage or transfer by way of gift the latter right, reserving to himself the former. It was a transfer of the right to assessment by Sarvottamrao to the respondents as a bounty or reward for services rendered and to be rendered. Such a transfer cannot be made except in the manner provided by the Transfer of Property Act.