2014 Supreme(Bom) 71

In the High Court of Bombay at Nagpur
S.B. SHUKRE, J.
Hausu Dhondba Uike & Another
Versus
Sahebrao Chintaman Salam & Another
Second Appeal No. 407 of 2003
Decided on: 15-01-2014

Headnote:Bombay Tenancy & Agricultural Lands Act, 1958 - Section 6 - Expression "deemed tenant". - Held, a person who lawfully cultivates land belonging to another person and who is not a member of owner’s family, is a ’deemed tenant’. No doubt, under Section 6 of the Tenancy Act, a person who lawfully cultivates land belonging to another person and who is not a member of the owner’s family or who is not a servant on wages payable in cash or kind, not being paid in crop share or who is not a hired labourer cultivating the land under the personal supervision of the owner, is a deemed tenant.

       EVIDENCE ACT, 1872 - Section 110 - Presumption under. - Presumption of ownership under Section 110 of Act, would arise only if possession is not prima facie wrongful and title of other contesting party to property is not proved by direct evidence. - No doubt, Section 110 of the Indian Evidence Act, 1872 lays down a rule that when the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that fact. This rule has been elaborated by Manipur High Court in its decision given in the case of Heisnam Nilakantha Singh and others v. Heisnam Ningol Thokehom Ongbi Thambal Devi and others reported in AIR 1970 Manipur 50 and which has been relied upon by the first appellate Court. It is held by Manipur High Court that presumption under Section 110 of the Evidence Act would arise, if two conditions are satisfied, namely; (1) that the possession is not prima facie wrongful, and (2) that the title of the other contesting party to the property is not proved by direct evidence.

       Transfer of Property Act, 1882 - Section 54 - Condition for transfer of immovable property. - In view of Section 54 of Act, immovable property can be transferred by sale having value of Rs. 100/- and upwards, only by a registered instrument of sale. - Now, it would have to be seen whether the respondents proved their ownership to the suit field or not. They have admitted that the sale deed dated 2.1.1991 was not a registered instrument. Therefore, the respondents have effectively contended that transfer of ownership of the suit field is on the basis of an unregistered instrument. Under Section 54 of the Transfer of Property Act, transfer of immovable property by sale having value of Rs. 100/- and upwards must be by a registered instrument of sale. Admittedly, document dated 2.1.1991 being not a registered instrument of sale, it cannot be said that the suit field was validly transferred by sale to the respondents. Thus, the respondents failed to discharge the burden of proving their title to the suit field. In such a situation, the first appellate Court could not have concluded that failure to prove permissive possession of the respondents by the appellant s was enough to presume title of the respondents to the suit field. The title was required to be proved by respondents, and as said earlier, presumption under Section 110 was not applicable to their case because they had admitted title of appellants and had only contended that it was transferred to them by sale. This contention required proof as per law, which was in the nature of registered document of sale, and which was not there. In the absence of registered instrument of sale, no immovable property of the value of Rs. 100/- and upwards can be transferred and this is the mandate of law under Section 54 of the Transfer of Property Act. Accordingly, the first substantial question of law is answered as in the negative.

       Transfer of Property Act, 1882 - Section 118 - Exchange of immovable properties. - Exchange of properties by way of an oral transaction without being followed by possession, cannot be called on exchange under Section 118 of Act. - In the present case, the exchange of immoveable properties is required to be compulsorily registered unless followed by possession and since the alleged exchange in the instant case was admittedly by way of an oral transaction and not by a registered instrument, without being accompanied or followed by possession, the defendants failed to prove their case of ownership of suit house on the basis of exchange.

       The concept of oral family arrangement for transfer of interests in properties held jointly or in common not requiring any registration is valid in law. The transfer of properties held jointly or in common by oral family arrangement does not require any registration. This principle applies to only those properties which are joint family properties or where the properties are held in common and there is no separation of individual interests in the properties. The words "transfer of ownership of one thing for the ownership of another" themselves indicate that what is contemplated by the section is mutual transfer of two separate and mutually exclusive properties.

       In case of joint family property or property held in joint tenancy, each co-parcener or co-owner has some interest in the entire property and which is undivided with and not exclusive of the interests of the other co-parceners or co-owners. In partition, there occurs giving away of some undivided interest by one for that of another’s some undivided interest and, therefore, it cannot be called an exchange under Section 118 of T.P. Act, although it is a transfer of property within the meaning of Section 5 of that Act.