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Calcutta High Court
Gunga Narain Gope vs Kali Churn Goala And Ors. on 28 August, 1894
Equivalent citations: (1895) ILR 22 Cal 179
Author: Trevelyan
Bench: Trevelyan, Hill


JUDGMENT

Trevelyan, J.

1. The question in this case depends upon the construction to be placed upon Section 54 of the Transfer of Property Act. On the findings of fact of the Court below, the property, which is an 8-anna share of a tank, was sold to the defendants for a sum less than Rs. 100 by an unregistered deed of sale; the defendants obtained possession under that purchase. They possessed the share after their purchase, to use the words of the Munsif, which, as appears later in his judgment, means from and after that purchase. Their vendors never had possession after the purchase. It is also found that the plaintiffs, who have obtained a registered conveyance from the same vendors, took with notice of the defendants’ previous purchase and possession. Section 54 says this: “Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.” I do not think it is necessary that there should be any formal making over of possession. It can scarcely be supposed that the Legislature, while making provision for transactions which would mostly be between poor people, would insist upon very strict formalities. Where the vender obtains possession on the date of the sale and remains in possession thereafter, I think it is reasonable to presume that the possession so obtained was a lawful one, and had been given by, or with the assent, express or implied, of the person previously in possession, namely, the vendor. As was pointed out in the argument, it is not easy to see what formality of delivery would be required in the case of an undivided share of a tank, I think it follows from the facts of this case that the buyer was placed in possession by the seller, and, if so, the law has been complied with. The difficulties in this case arise from the existence of the unregistered deed of sale. If there were no deed of sale, the case would be a clear one. As the law stands, the deed of sale has no operation to transfer the property, though it may show the payment or promise of a price, which, plus the transfer of ownership, constitutes a sale.

2. I am not prepared to say that Mr. Justice Beverley’s decision is wrong. I would therefore dismiss this appeal with costs.

Hill, J.

3. I have given the question argued before us in this appeal a good deal of consideration, and I have also had the opportunity of considering the judgment which has just been delivered by Mr. Justice Trevelyan. It is with regret that I find myself unable to agree in the view which he takes of the construction to be placed on Section 54 of the Transfer of Property Act, and I regret this the more since his opinion is in accord with that of the learned Judge from whose decree this appeal has been preferred. But it seems to me that when the owner of immoveable property of a value less than one hundred rupees has executed to the intending buyer an instrument purporting to transfer the ownership of the property, and the instrument has not been registered, but the intending buyer has been placed in possession, the effect to be attributed to the delivery of possession depends on the intention of the parties, which is a question of fact that cannot be determined in second appeal. For reasons, however, into which I do not now propose to enter, I agree that this appeal ought to be dismissed with costs.


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