The transfer of property valued at more than Rs. 100 can only be made by a registered instrument, not by delivery of property.

1. This appeal has been preferred by the plaintiff in O.S. No. 172 of 1956, Sub Court, Ernakulam, against the dismissal of its suit to set aside an order passed on a claim petition preferred by it under the following circumstances.

2. The suit property of an extent of nearly 60 cents belonged to the plaintiff-Devaswom, and was sold in court-auction for Rs. 125, on 25-4-1118 and purchased by the 2nd defendant, under a sale certificate which has been filed as Ex. B. The sale was confirmed on 27-5-1118. Para.5 of the plaint alleged that the 2nd defendant orally conveyed the property to the plaintiff-Devaswom on 20-12-1122, and on the same day at the request or insistence of Devaswom executed an unregistered sale-deed, which has been filed as Ex. A. Thereafter, the 1st defendant, in pursuance of a decree obtained by him against the 2nd defendant attached the suit property on 17-8-1124. The Devaswom filed a claim petition to release the property from attachment. The final order passed on the said petition is evidenced by Ex. J. The attachment was made absolute to the extent of the rights of the auction-purchaser namely the 2nd defendant. It is to set aside this order that the suit out of which this appeal arises, was filed. The trial court having dismissed the same, the plaintiff has preferred this appeal.

3. The plaintiff's claim to set aside the order Ex. J was rested on the ground that the rights of the 2nd defendant had been conveyed to it by the oral sale referred to in Para.5 of the plaint and delivery of possession and the same was confirmed and embodied in Ex. A. The question for consideration is whether the oral sale and the delivery of possession would suffice to convey the title to the plaintiff.

4. The first three paragraphs of S.54 of the Transfer of Property Act dealing with the definition of "sale" may conveniently be extracted.

"54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered

instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property."

5. Reliance was placed by the appellant's counsel on the 3rd paragraph of the above section to contend that the transfer in this case could be made by delivery of property. But, it is plain that the said paragraph could have application only if the property in question is of a value of less than Rs. 100. If it is above that value, it is clear, from Para.2 of S.54 that the transfer can be made only by registered instrument. It is beyond dispute that there has been no such registered instrument. On the question of the value of the property, the court below on an analysis of the evidence came to the conclusion in Para.11 of its judgment, that the property would be worth at least Rs. 1,320 in value.

6. We are in agreement with the said assessment of the evidence, and the said conclusion of the court below. If so, it follows that the sale can be effected only by registered instrument and a sale by delivery of property, as contended on behalf of the appellant, would be of no avail.

7. Counsel for appellant sought to argue before us, that even if the Devaswom had no title on the basis of a sale by the 2nd defendant, still, it was in possession even after the court-sale to 2nd defendant in 1118, and had valuable rights under S.53A of the Transfer of Property Act. No foundation has been laid pleadings, and we decline to investigate the question.

8. The appeal fails and is dismissed with costs of the 1st respondent.

Dismissed.