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1966 Supreme(Ker) 35
Judges : S.VELU PILLAI,T.S.KRISHRIAMOORTHY IYER
Gomathy Ammal - Appellant
Versus
Padmavathi Amma - Respondent
Case No : S. A. No. 1407 of 1961
Decided On : 02/01/1966
Advocates Appeared :
S. Easwara Iyer; For Appellant G. Viswanatha Iyer; For Respondents 1; 2
The main legal point established is the automatic accrual of the option for the transferee under Section 43 of the Transfer of Property Act, and the burden of proof for exceptions lying with the transferee.
Headnote:
Gift Deed - Property Dispute - Transfer of Property Act, Section 43
Fact of the Case:
Kochukunjamma executed a gift deed in 1938, reserving proprietary interest and possession for herself. The property was later sold by Parameswaran Pillai to Krishna Pillai and Madhavi Amma, falsely claiming full ownership. The plaintiff sued for redemption of the property under a prior mortgage.
Finding of the Court:
The court held that the plaintiff was entitled to the interest acquired by Parameswaran Pillai upon the death of Kochukunjamma, and the subsequent registry of the property in the names of defendants 1 and 3 did not prevent the plaintiff from recovering possession in the future.
Issues: Interpretation of the gift deed, applicability of Section 43 of the Transfer of Property Act, and the effect of subsequent registry on the plaintiff's right to redemption.
Ratio Decidendi: The court interpreted Section 43 of the Transfer of Property Act, emphasizing that the option for the transferee to have the transfer operate on newly acquired interest arises automatically, and the burden of establishing exceptions to this rule lies with the transferee.
Final Decision: The court reversed the lower court's decision, granting the plaintiff a declaration that the sale deeds were operative on the interest of Parameswaran Pillai. The plaintiff was allowed to recover possession if she obtained registry of the property within the prescribed period of limitation.
1. One Kochukunjamma executed a gift deed Ext. D-6 with respect to the suit property and to some of her other assets in favour of her brother's son, Parameswaran Pillai, in the year 1938, reserving the full proprietary interest and possession to hereself and stipulating that Parameswaran Pillai may enjoy the property absolutely after her. On the 8th March, 1946, Parameswaran Pillai sold the property by Ext. P-2
to one Krishna Pillai and his wife Madhavi Amma, reciting falsely as has now been found, that Kochukunjamma was no more and that he had become the full owner. The property was at the time outstanding on a mortgage with defendants 1 and 2, under Ext. P-1 dated the 6th September, 1943, executed by Kochukunjamma and by Parameswaran Pillai. It has been found and that finding has not been challenged, that Kochukunjamma died on the 14th October, 1946. Krishna Pillai and Madhavi Amma sold the property to the plaintiff under two sale deeds, Ext. P-4 dated the 2nd December and Ext. P-3 dated the 16th December, 1957. The plaintiff who is the appellant in this second appeal instituted the present suit for redemption of Ext. P-1. Despite Ext. P-2, Parameswaran Pillai had sold the property by Ext. D-5 to defendants I and 3 on the 3rd September, 1951. According to them, no interest passed under Ext. P-2, the earlier sale deed. The first court accepted their contention; it also held, that though Parameswaran Pillai became the owner of the property after the death of Kochukunjamma, the vendees under Ext. P-2 or the plaintiff having failed to exercise their option under S.43 of the Transfer of Property Act, Ext. D. 5 has to prevail and the suit has to fail. In appeal by the plaintiff, the court accepted the above view but differed from the primary court by holding, that defendants 1 and 3 took Ext. D-5 with notice of the prior transfer; it however dismissed the suit on the ground, that the property, which is of kandukrishi tenure having been registered in favour of the defendants 1 and 3 the plaintiff has no title to it.
2. The plaintiff has a case, that under Ext. D-6 Parameswaran Pillai took a vested interest which he was capable of transferring under Ext. P-2 and Kochukunjamma having died, the plaintiff could recover. Though the Munsiff was prepared to accept this case, the judge was not. On going through the relevant provision in Ext. D-6, we are inclined to agree with the latter. There is no dispositive word in Ext. D-6 conveying a present interest to Parameswaran Pillai, and on the contrary there is the reservation of full proprietary interest and possession for Kochukunjamma. The stipulation that Parameswaran Pillai may take the property absolutely after her lifetime is no conveyance of an interest in praesenti. As for the present, the only stipulation was, that Parameswaran Pillai may effect mutation in his name forthwith. Mutation may evidence a transfer of an interest but is not per se a transfer. Even if the donor had the intention at the back of her mind to create a vested remainder, she has not succeeded in effectuating that intention by the use of apt expression.
3. The main question turns on the true understanding of the scope and content of S.43 of the Transfer of Property Act, which reads as follows:
"Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
The plain reading is, that when the other ingredients prescribed are found to exist, upon the acquisition by the transferor of any interest in the property professed to be transferred, there springs into existence a
