Judgement

Appeal (No. 76 of 1935) from a decree of the High Court in its appellate jurisdiction (August 14, 1934) reversing a decree of the High Court in its original civil jurisdiction (March 1, 1934).

This appeal arose out of a suit brought by the appellant company, M. E. Moolla Sons, Ld., through its liquidator, for a declaration that a certain asset held by one M. £. Moolla, an insolvent, was the property of, and was held by him in trust for, the appellant company, and that it did not vest in the Official Assignee as the property of the insolvent.

The asset in question was the interest of one Maung Chit Maung under a deed of settlement made by his father on May 5, 1908. That interest, which was a vested interest in the income and a contingent interest in the corpus of the settled landed property, was conveyed by Maung Chit Maung to M. E. Moolla by a registered deed, dated December 17, 1919, for a consideration of Rs.2,50,000. On December 22, 1920, M. E. Moolla entered into an agreement, which was never registered, to sell to the appellant company his business and certain properties and interests, the latter including the right of Maung Chit Maung in the estate of his father.

The question was whether the interest of Maung Chit Maung was immovable property so that the sale of that interest by M. E. Moolla to the appellant company, to be valid, would require to be by registered conveyance as provided by s. 54 of the Transfer of Property Act, 1882.

The facts, the relevant provisions of the settlement, and the material statutory provisions appear from the judgment of the Judicial Committee.

The trial judge (Shaw J.) allowed the claim of the company and made a declaratory decree as prayed for.

An appeal to the Appellate Court (Page C. J. and Mya Bu J.) was allowed. The learned judges held (inter alia) that the subject-matter of the suit—namely, the interest of Maung Chit Maung in the trust of 1908—was an interest in immovable property, and that therefore a registered conveyance was necessary for the transfer of that interest, and that in the absence of such a conveyance the company acquired no title to the interest. The appeal is reported at ( 1934) I. L. R. 12 R. 589.

1936. May 1, 4 and 5. Dunne K.C. and Hyam for the appellant. The Appellate Court has held that the

Law. Rep. 63 Ind. App. 340 ( 1935- 1936)

M. E. Moolla Sons v. Official Assignee 106

interest under the deed of settlement of 1908 is an interest in immovable property and can be transferred only by registered deed. That interest was not immovable property all that Maung Chit Maung had and transferred was a right to a share that is not immovable property or an interest in immovable property. If there is a transfer at all it is not of immovable property but of an actionable claim. [Reference was made to the Indian Registration Act (XVI. of 1908), s.17, sub-s.1 (b).] The deed of settlement was registered because it dealt with immovable property. It would be unreasonable to read s. 54 of the Transfer of Property Act, 1882, so as to include a contingent interest. No registered document was required in this case the Appellate Court has wrongly used Ariff v. Jadunath Majumdar (( 1931) L. R. 58 I. A. 91.) against the appellant company. [Reference was made to the Indian Trusts Act (II. of 1882), s. 3, Maung Shwe Goh v. Maung Inn (( 1916) L. R. 44 I. A. 15.); Chhatra Kumari Devi v. Mohan Bikram Shah (( 1931) L. R. 58 I. A. 279, 294-5.); and Ma Yait v. Official Assignee. (( 1929) L. R. 57 I. A. 10.)] Under the Trusts Act the only right of the beneficiary is to compel the carrying out of the trust. The transfer of movable property does not require writing and consequently does not require registration. M. E. Moolla was, under the circumstances, in the position of trustee for the company in respect of the interest, and he ceased to be the beneficial owner thereof. The agreement between the company and M. E. Moolla was an agreement for valuable consideration, and was acted upon by