LAWS(PVC)-1939-3-86

UMRAO SINGH Vs. KACHERU SINGH

Decided On March 14, 1939
UMRAO SINGH Appellant
V/S
KACHERU SINGH Respondents

JUDGEMENT

(1.) The question referred to this Full Bench is: Whether the property in the houses in suit passed to the plaintiff Khaoheru Singh under the auction sale of 26 January 1932, or not?

(2.) On 2 January, 1924, Umrao Singh defendant-appellant, made a simple mortgage of his entire zamindari share in favour of Khacheru Singh and others, the plaintiffs-respondents. (The date 9 March 1918 given in the order of reference for the mortgage is admitted to be correct.) The plaintiffs sued on the mortgage and obtained a final decree, and put up the share for sale and purchased it themselves on 26 January 1932. On 11 March 1932, Umrao Singh executed a deed of gift of three houses in the abadi of the village to his daughter- in-law, Mt. Chhawari, defendant 2. On 5 September 1937, the plaintiff brought the present suit for possession of these three houses. The Courts below have decreed the suit. The case for the plaintiff is that the sale certificate in his favour stated that the entire zamindari interest of defendant 1 including his interest in the abadi was sold without any reservation, the words in the sale certificate being "haq-in-haquq abadi"; and that the plaintiff had obtained formal possession over the zamindari. The lower Appellate Court held that "the houses or material thereof as well as the site must therefore be taken to have passed to the auction, purchaser." The Court also found that the donee was in possession of the three houses and that Umrao Singh was living in another village, and had let his cultivatory lands. The argument for the plaintiff-respondent before the Full Bench was based on Section 8, T.P. Act, Act 4 of 1882, which states: Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth.

(3.) In Section 3 it is provided as follows : "attached to the earth means - ... (b) imbedded in the earth, as in the case of walls or buildings." The argument therefore is that the sites of the houses have been transferred to the plaintiffs by the auction sale, that the three houses are attached to their sites, and therefore the three houses have been transferred to the plaintiffs, and after that transfer Umrao Singh had no right or title in the three houses which he could transfer by deed of gift. There are the following objections to this theory in the present case: 1. The sites of the houses have not been transferred to the plaintiffs. The abadi has not been partitioned and Umrao Singh only held an undivided share in it, and by the auction sale the plaintiffs merely acquired an undivided share in the abadi, and not the full ownership of any particular part of the abadi. The plaintiffs are act the owners of the sites, but merely of undivided shares in the sites. On this being pointed out, learned Counsel for plaintiffs had considerable difficulty in stating whether his claim was that the plaintiffs acquired the whole of the three houses under Section 8 or only undivided shares in the houses. Either claim would lead to considerable confusion. But it appears quite clear to ma that Section 8 is not intended to apply in this way to the case of a transfer of an undivided share in land. The Section refers to "a transfer of property" and in Para. 2 states "where the property is land." We must therefore have "a transfer of land" and in such a case there will pass "all things attached to the earth," that is to the land which is transferred. The sites of the houses have not been transferred. Therefore the houses attached to those sites have not been transferred. It is only where the sites had been transferred to the plaintiffs that the plaintiffs could claim that the houses attached to those sites were also transferred under the provisions of Section 8. 2. Section 2 of the Act states generally: But nothing herein contained shall be deemed So affect...(d) save as provided by Section 57 and Chap. of this Act, any transfer by operation of law or by, or in execution of, a decree or order of it Court of competent jurisdiction: The plaintiffs claim to have acquired their rights by auction sale in execution of a decree, and accordingly the provisions of Section 8 do not apply. This is also shown by the fact that Section 8 refers to "a transfer of property," and Section 5 says: In the following Secs."transfer of property" means an act by which a living person conveys property, in present or in future, to one or more living persons, etc. Learned Counsel then argued that Section 8 would apply to the mortgage deed by defendant 1 to the plaintiffs, and that whatever rights were mortgaged, were later sold by auction. I do not think that this argument is sound. Section 8 applies to transfers as defined in Section 5, the principle that everything passes which is not reserved. The reason for this principle is that there is a privity of contract between the parties and that they have an opportunity to know the property in question. But this principle does not apply to auction sales, where the principle is that only so much passes as is specified the reason probably is that the public are Invited to bid for the property, and what is to be sold should be set out in detail in the sale proclamation, and not left to mere inference or presumption. 3. The auction sale of the share in the mahal was conducted by the Collector in accordance with the Rules of the Governor in Council under Secs.68 and 70, Civil P.C.; these rules are printed in Appendix 6, General Rules (Civil), Vol. II, and date from 7 October 1911, with amendments. The corresponding rule in Volume I is in Ch. IV, p. 48, Rule 11, which provides: Where property to be sold in execution of a decree is (1) agricultural land or any interest in agricultural land the decree shall be transferred to the Collector for execution, under Section 68, Act 5 of 1908, and the rules prescribed under that Section by the Local Government; (2) a garden or land occupied by a house or appurtenant thereto, or moveable property, of any description, or is any interest in such garden, land or moveable property the Court shall appoint a Civil Court Amin to conduct the sale, unless special reasons render it necessary that other agency should be employed; in which case such reasons shall be set forth in the handwriting of the presiding Judge in the order of appointment.