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1969 Supreme(AP) 4
Andhra Pradesh High Court
Judges : PARTHASARATHI
Modiboyina Basavaiah - Appellant
Versus
Kandali Venkatasubbareddi - Respondent
Decided On : 01-03-69
An attaching decree-holder is not a person claiming under the transferor within the meaning of Section 53-A of the Transfer of Property Act and is therefore not debarred from enforcing any right in respect of the property of the judgment debtor.
Headnote:
TRANSFER OF PROPERTY ACT - SECTION 53-A - ATTACHING DECREE-HOLDER - NOT A PERSON CLAIMING UNDER THE TRANSFEROR - CAN ATTACH AND SELL THE PROPERTY OF THE JUDGMENT DEBTOR - UNREGISTERED SALE DEED - INADMISSIBLE IN EVIDENCE.
Fact of the Case:
The appellant, an attaching decree-holder, sought to attach and sell the property of the judgment debtor. The 2nd defendant claimed a right to the property under an unregistered sale deed. The trial court held that the unregistered sale deed was inadmissible in evidence and granted the decree to the appellant. The lower appellate court reversed the trial court's decision, holding that the 2nd defendant was in possession of the property and that the appellant, as an attaching decree-holder, was a person claiming under the transferor and was therefore debarred from enforcing any right in respect of the property.
Finding of the Court:
The High Court held that the lower appellate court erred in its interpretation of Section 53-A of the Transfer of Property Act. The court held that an attaching decree-holder is not a person claiming under the transferor and is therefore not debarred from enforcing any right in respect of the property of the judgment debtor. The court also held that the unregistered sale deed was inadmissible in evidence and that the 2nd defendant had not established any right to the property.
Issues: 1. Whether an attaching decree-holder is a person claiming under the transferor within the meaning of Section 53-A of the Transfer of Property Act? 2. Whether an unregistered sale deed is admissible in evidence?
Ratio Decidendi: 1. The court held that an attaching decree-holder is not a person claiming under the transferor within the meaning of Section 53-A of the Transfer of Property Act. The court reasoned that the right of an attaching decree-holder to attach and sell the property of a judgment debtor is not derived from the judgment debtor, but is a right inherent in the decree-holder. The court further reasoned that the purpose of Section 53-A is to enforce the sanctity of contracts and to prevent parties from using technical flaws or omissions to defeat or nullify their contractual obligations. The court held that the equity underlying Section 53-A is designed to maintain and preserve for the transferee such benefit as may have accrued to him under the contract, and that this equity only applies to parties to the contract and those who are bound by the contract, although not parties to it. 2. The court held that an unregistered sale deed is inadmissible in evidence. The court reasoned that Section 53-A of the Transfer of Property Act does not create an exception to the general rule that unregistered sale deeds are inadmissible in evidence.
Final Decision: The High Court allowed the appeal, set aside the decision of the lower appellate court, and restored the decree of the trial court.
( 1 ) THIS second appeal arises out of an action commenced by the appellant to establish his right to attach and sell the property of the 1st defendant in execution of a decree against the latter. The 2nd defendant set up a right under an unregistered document of 22nd tune, 1959, pursuant to which the 1st defendant is said to have received the entire price of Rs. 700/- and made over possession of the property to the 2nd defendant The appellant obtained a decree on 14th April, 1961 against the 1st defendant and proceeded to attach the property now in dispute on the 25th of March, 1963. The claim made by the 2nd defendant was allowed on 11th February, 1964, and the order made by the executing court is Ex; A. 1. The validity of this Order has been impugned by the appellant in this suit.
( 2 ) THE trial Court granted the decree asked for by the plaintiff. It held that the unregistered document relied upon by the 2nd defendant is not a mere agreement and that it purports to be the instrument of sale and is inadmissible in evidence. The trial Court also held that Ex. B. 1 relied upon by the 2nd defendant was "got up for the purpose of evading the decree debt" of the plaintiff. The lower appellate court held that Ex, B, 1 was a genuine document and that pursuant to the transactions evidenced by Ex. B. 1 the 2nd defendant was put in possession of the property, The result, according to the District Judge, is that, the 1st Defendant himself was precluded from enforcing any right regarding the property and that the attaching creditor cannot have a better right than the 1st defendant himself. The appeal was allowed by the lower appellate court.
( 3 ) THE plaintiff has preferred this Second Appeal. Two main contentions had been urged by Mr. Gangadhara Rao for the appellant. In the first place, he questioned the validity of the finding of the lower appellate Court in respect of Ex. B. 1. Secondly, he argued that the attaching decree-holder is not a person claiming under the transfer and consequently it is not open to the 2nd defendant to contend that the appellant is a representative of the transferor and is precluded from asserting the right to attach and sell the property.
( 4 ) AS stated by me earlier, the learned District Munsif came to the conclusion that Ex. B. 1 does not represent a genuine transaction. It purports to have been attested by two persons, One of them has not been examined. D. W. 2 is the attestor who has given evidence. The testimony of this witness was considered by the District munsif to be not positive so as to make out unequivocally that it was written by his deceased brother-in-law. The witness stated that the 2nd defendant was tethering his cattle in his back-yard. This statement was taken by the District Munsif to mean that the site alleged to have been purchased under Ex. B, 1 was not used by the 2nd defendant. The District Munsif was not satisfied that an adequate reason bad been given for not taking a deed of conveyance. There was no satisfactory explanation for the omission of the 2nd defendant even to make a demand for the execution of a deed of conveyance. He was also impressed by the fact that there were factions in the village and he concluded that Ex. B. 1 had been brought into existence as a result of collusion between the defendants 1 and 2 and was motivated by the intention to defeat ths claim of the appellant.
( 5 ) THE District Munsif stressed the circumstance that in respect of another transaction between the same parties relating to the purchase of another site for Rs. 200/- a deed had been obtained by the 2nd defendant. On a consideration of all the above factors, he thought that the version of the 2nd defendant did not merit acceptance as a true or credible one.
( 6 ) THE lower appellate court has taken a different view, The finding of the lower appellate court is criticised by the learned counsel for the appellant on several grounds; In the first place, my attention has been dr
