Modun Mohun Dut And Anr. vs Futtarunnissa And Ors. on 8 June, 1886

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Calcutta High Court
Modun Mohun Dut And Anr. vs Futtarunnissa And Ors. on 8 June, 1886
Equivalent citations: (1886) ILR 13 Cal 297
Author: M A Grant
Bench: Mitter, Grant


Mitter and Grant, JJ.

1. This was a suit to recover possession of an 8-annas share of a certain property. We may take it upon the finding of the lower Courts that the defendants Nos. 6 and 7 had been the owners of this 8-annas share. It is not disputed that the plaintiffs purchased this property under a kobala from the defendants Nos. 6 and 7, and by the terms of that kobala the ownership was transferred to the plaintiffs. It is also not disputed that at the time of the execution of the kobala the defendants Nos. 6 and 7 were not in possession, but that the property in dispute was in the possession of the principal defendants. Upon these facts the question that was raised in the lower Courts, and that has been raised before us, is whether it was a sale of an actionable claim within the meaning of chapter 8 of the Transfer of Property Act; and farther if it is a sale of an actionable claim, whether Section 135 of that chapter, applies to the present case.

2. It seems to us that the sale in this case does not come within chapter 8 of the Transfer of Property Act. Section 130 of the Act says: “A claim which the Civil Courts recognise as affording grounds for relief is actionable whether a suit for its enforcement is or is not actually pending or likely to become necessary.” It is therefore evident that it refers to nothing more than to a sale of a claim, but if the transfer be that of the ownership of property it is something more than the transfer of a claim. It is unnecessary for us to define exactly the classes of cases coming within the purview of Section 130; all that we decide is that a transfer of ownership of immoveable, property is not a sale of an actionable claim, although the owner at the time of the sale may not be in possession. The Transfer of Property Act is divided into several chapters. Chapter 1 deals with preliminary matters. Chapter 2 dells with general rules relating to the transfer of property. Then from chapter 3 to chapter 8 the Act deals with rules of law relating to different kinds of transfer of property. Chapter, 3 treats of sales of immoveable property, chapter 4 deals with mortgages of immoveable property and charges, chapter 5 with leases of immoveable property, chapter 6 deals with the subject of exchange, chapter 7 deals with the subject of gifts, and then comes chapter, 8, which deals with transfers of actionable claims. It is clear from the division of these chapters that it is made with reference to the different classes of transfer, and therefore if a particular transfer comes under one chapter it is necessarily excluded from the other chapters. That being so, it is important to consider whether, under the circumstances stated above, the transaction between the plaintiffs and the defendants Nos. 7 and 8 comes within the definition of a sale of immoveable property; if it does, it appears to us that it would not come under the purview of any of the following chanters, including chapter 8. The conditions laid down in Section 54, which defines sales of immoveable property are, in our opinion, fulfilled in the transaction in question. It seems to us that under Section 54, a sale by registered kobala is valid, although the owner may not be in possession at the time of the sale. Section 54, para. 2, says: “Such transfer, in the case of tangible immoveable property of the value of Rs. 100 and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.” Para. 3 says: “In the case of tangible immoveable property of a value less than Rs. 100, such transfer may be made either by a registered instrument, or by delivery of the property.” Comparing these two paras, it seems to us that where a sale is of tangible immoveable property, whether of the value of Rs. 100 and upwards or not, the transfer is complete when the instrument by which the transfer is made is registered; and delivery of possession in that “case is not a condition precedent to the validty of the transfer. That being so, the transaction in this case comes within Section 54, and it follows, therefore, that it does not come within chapter 8. But even if it be conceded that it is a sale of an actionable claim, we think that Section 135 is not applicable. That section says that, “where an actionable claim is sold, he, against whom it is made, is wholly discharged by paying to the buyer the incidental expenses,” &c. The word discharged would be inapplicable to a suit of this description, because it is for possession of land. We are inclined to think that Section 135 refers to claims or money of some kind or the like, although the money claim may be a charge on immoveable property. On the whole, we are of opinion that chapter 8, and specially Section 135, are not applicable to the facts of this case. That being so, the right of the plaintiffs being found in the judgment of the lower Courts, the decree of the lower Appellate Court will be set aside, and the plaintiffs’ suit for possession will be decreed with costs in all the Courts.

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