Registration of contract to settle property necessary.

This Second Appeal is preferred against the decree and judgment of the learned Subordinate Judge, Tirunelveli, in A.S. No. 21 of 1955, reversing the decree and judgment of the learned District Munsif of Tuticorin in O.S. No. 42 of 1553.

The plaintiffs are the uterine brothers of the second defendant Gnanamuthammal whose husband is the first defendant. The father of plaintiffs and the second defendant died when the second defendant was very young. The second defendant has been brought up by the plaintiffs. The second defendant, not to put too fine a point on it, seems to have grown up into an ugly black woman. Therefore, eligible bridegrooms were not forthcoming to marry her. In fact she remained a comparatively old spinster till she was aged 28. In fact in this community of Nangudi Vellalas of Srivaikuntam, it is very unusual for a girl to remain unmarried till she becomes middle-aged. The plaintiffs finally selected the first defendant. They had to offer him special terms over and above the customary gift of a small extent of immovable property, which is prevalent in this community of Nangudi Vellalas and which custom is affirmatively found by both the Courts below and which is perfectly legal and valid ; Vide Palwanna Nadar v. Annamalai Ammal1. In other words, the plaintiffs entered into a contract with the first defendant, the consideration for which was the marriage of the first defendant with the second defendant who was not exactly a catch in the marriage market, to settle upon them 74 cents of land bearing survey No. 362 and comprised in patta No. 471 and called Veppal Vayal situated in the village of Keelapadugai in Srivaikuntam Taluk. In pursuance of this contract the marriage took place in Avani of 1123 Andu (1947) and the defendants were put in possession of the land and they have filed Exhibits B-5 and B-6 for payment of kist in the name of the second defendant for the years 1948 and 1949 in respect of the suit land. Subsequently, the parties had fallen out and the plaintiffs were evasively putting off the execution of a registered instrument in favour of the defendants and what is more they have been claiming back the land on the ground that the gift was invalid being hit by section 123 of the Transfer of Property Act and section 17 of the Registration Act and that it is not open to the transferees to plead part-performance. On the other hand, the case for the defendants was that first of all this is a transaction contemplated under section 9 of the Transfer of Property Act and need not be registered ; and secondly, by virtue of there being a subsisting enforceable contract between themselves and the plaintiff, the plaintiffs, are not entitled to the declaration and injunction or in the alternative for recovery of posession asked for. The learned District Munsif upheld the contention of the defendants and dismissed the suit. On appeal the learned Subordinate Judge found that this was an unjust claim but that the plaintiffs were entitled to the relief asked for as the gift is also a transaction hit by section 123 of the Transfer of Property Act and section 17 of the Registration Act. Therefore he allowed the appeal and decreed the suit. The defeated defendants have preferred this Second Appeal.

The scope of section 9 of the Transfer of Property Act has been well explained in the A.I.R. Commentaries (Third Edn.) at page 361. It is a general principle of law that everything is to be taken as permissible unless there is a prohibition against it. Where, therefore, a transaction is not required by law to be in writing, it may be brought about without writing. Section 9 is an enactment of this principle in so far as transfers of property are concerned, and seems to have been inserted ex abundanti cautela in view of a different principle as to transfers of property, adopted in England. Under the Statute of Frauds in England the general rule adopted was that all transfers of property should be in writing, while th