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2010 Supreme(Bom) 145
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE C.L. PANGARKAR
Dashrath Narayan Shinde(deceased) through Legal Heirs & Others
Versus
Laxman Gangaram Ghag(deceased) through Legal Heirs & Others
SECOND APPEAL NO.556 OF 1986
Decided on : 29-01-2010
For the Appellants :Mrs. Shakuntala Mudbidri, Advocate.
For the Respondents: -----
Headnote:Transfer of Property Act, 1882 -Sections 9 and 54 - Entitlement to possession - As per defendant suit property purchased from deceased mother of plaintiff on oral sale in Rs. 90/- - Property purchased by mother of plaintiff for Rs. 280/ - Can seller sale property only at market rate? - Held, yes property can be sold at rate equal to market rate - But mandate of registration will have to be followed - When price increases from Rs. 100/- sale deed should be voided - Property not for possession. - Section 9 of the Transfer of Property Act says that transfer of property may be effected without writing in every case in which the writing is not expressly required by law. Law therefore, permits in certain cases an oral transfer but no doubt subject to Section 54 and other sections of the Transfer of Property Act as well as Registration Act. Section 54 of the Transfer of Property Act says that the sale of an immovable property of value of Rs. 100/- or more can be effected only by registered instrument. Therefore, when the sale of the immovable property, the value of which, is more than Rs. 100/- has to be effected by registered instrument. Here the Counsel submits that since market price of the property was much more the sale ought to have been effected by registered instrument. The submission cannot be accepted. As stated earlier, a party has a right to dispose of property for inadequate price. Therefore, the only consideration that can weigh is what is the price shown in the sale. The price shown in this case is Rs. 90/-. i.e. less than Rs. 100/- The price of Rs. 90/-. will have to be taken into account to determine the application of Section 9 and Section 54 of the Transfer of Property Act. Section 54 does not require a sale of immovable property worth less than Rs. 100/- to be effected by a registered instrument.
A party has a right to sale the property for a consideration, less than market value and the mandate of registration would be required to be followed only when the price exceeds Rs. 100/-. The plaintiff, as a result, cannot avoid the sale-deed and is, therefore, not entitled to possession. The substantial question of law is answered accordingly. The judgment and decree passed by the Courts below are confirmed and the appeal is dismissed with costs.
This is a Second Appeal by the plaintiff, who has lost in both the Courts below.
2. The appellants and the respondents shall hereinafter be referred to as the plaintiffs and defendants. The facts giving rise to the Appeal are as follows :-
The suit property i.e. field bearing Survey No.53 was the ancestral property of the family of the plaintiffs. The suit property was mutated in the name of the mother of the plaintiff's by name Kashibai. The plaintiff was, however, living at Mumbai. The mother of the plaintiff was cultivating the land and was earning income out of the said land. The plaintiff's mother died in the year 1972. It is contended by the plaintiff that taking disadvantage of the illiteracy of the mother of the plaintiff, the defendant had obtained the Sale Deed from her by paying Rs.90/-. It is contended that the plaintiff came to know about the mutation entry of the defendants and he applied for removal of the name of the defendant in record of rights. The defendants name was removed from the record of rights. The plaintiff asked the defendants to deliver back the possession of the suit property but the defendant refused to do so. Therefore, notice was issued to the defendants but the defendants did not deliver back the possession of the suit property.
3. The Suit was resisted by the defendants contending that the suit property was purchased by the defendants from Kashibai by oral sale after paying a sum of Rs.90/-towards consideration. It is also contended that upon such Sale Deed the property came to be mutated in the name of the defendants in the year 1955. Since 1955 the defendants have been in continuous possession. They have not taken any disadvantage of illiteracy of Kashibai, the mother of the plaintiff.
4. The learned Judge of the Trial Court upon consideration of the evidence found that the plaintiff was not in possession of the suit property within 12 years next before the institution of the suit. It was found that the defendants had purchased the property by oral Sale Deed and have become owner. Holding so the suit was dismissed.
5. The plaintiff preferred an Appeal and it was also found that the plaintiff had failed to prove his title and the possession over the suit property. On the other hand, it was found that the defendant has proved the title and the possession over the suit property. Holding so the learned Judge dismissed the Appeal. Feeling aggrieved by the same, he preferred this Second Appeal.
6. The Second Appeal came to be admitted on the following substantial question of law. Whether the property worth more than Rs.100 can be sold orally for less than Rs.100/-and also whether the plaintiff in the circumstances of the present case could get possession of the whole land.
7. Heard the learned counsel for the appellants. None appears for the respondents.
8. The plaintiff alleges that the suit property was an ancestral property and name of his mother Kashibai was mutated in the record of rights. Although, that is so alleged a Sale Deed of the year 1955 (Exhibit 54) is placed on record. The Sale Deed goes to show that the field was purchased by Kashibai herself in her own name on 3rd March, 1941 for a consideration of Rs.280/-. P.W.1 Dashrath, the original plaintiff in his evidence states that his father, Narayan died prior to 1954 i.e. before the suit land was purchased by Kashibai, his mother in the year 1955. In the circumstances, in no case the suit property could be said to be ancestral or joint family property of the plaintiff and his mother. It has to be held, therefore, that Kashibai was the exclusive owner and she had full authority to dispose of the suit property.
9. The Sale Deed (Exhibit 54) no doubt goes to show that the suit property was purchased by Kashibai in the year 1941 for a consideration of Rs.280/-. The very same property is said to be purchased by the defendants from Kashibai for a sum of Rs.90 in the year 1955, by an oral Saledeed. The learned counsel for th
