Chinnasami Chetty and Others vs Manickammal and Another

Varadachariar, J.—This Letters Patent appeal arises out of a suit in ejectment. The plaintiff claims the suit property as one of the items which

he purchased in execution of a decree passed on a mortgage given by one Dharma Goundan in the year 1913. Defendant 1 is a widow of the

mortgagor''s brother. She claims that three years before the mortgage, the suit property had been sold to her husband by Dharma Goundan. The

only question for our decision is whether by this sale which is said to have taken place in 1910, defendant 1''s husband became in law the owner of

the property. The document produced in evidence of the sale is admittedly unregistered, but as the sale was only for Rs. 75, the non-registration of

the document is not fatal to the validity of the transfer if defendant 1 is able to establish a prior oral sale and delivery of possession in pursuance

thereof, i.e., an oral sale sufficiently dissociated from the unregistered sale deed, that the one can be regarded as independent of the other. Both the

lower Courts found that the consideration for the transfer by Dharma Goundan to his brother must have been paid a month or two and possession

must also have been taken by the vendee a month or two before the unregistered sale deed. The appellants'' learned counsel is no doubt justified in

the comments that he made upon the way in which defendant 1''s pleas are put forward in the written statement. But having regard to the line taken

by the plaintiff who altogether denied the reality of the transaction, no issue was specifically framed on the question when and how the title passed

to defendant 1''s husband and when possession was taken by him. It may perhaps be conceded that the necessity for dissociating the oral sale

from the unregistered document was not sufficiently realised in the early stages of the litigation either by the plaintiff''s advisers or by defendant 1''s

advisers. But we do not think that at this stage we will be justified on that ground in ignoring the concurrent findings of both the Courts that the

consideration had been paid and possession had been taken by defendant 1''s husband at least a month before the date of the unregistered sale

deed. If this be the conclusion on the facts, it will be a very artificial application of Section 91, Evidence Act, to say that the contract between the

parties is contained only in the unregistered sale deed and that there could be no other proof of the sale.

In addition to the authorities referred to in the judgment of the learned Judge of this Court who heard the second appeal our attention was also

drawn to the decision in Kuppuswami Goundan Vs. Chinnaswami Goundan and Others, . We do not wish to throw any doubt upon the legal

principles laid down there, but from the dates given in that judgment it will be clear that on the findings, there was no possibility of inferring an oral

contract and delivery of possession anterior to the unregistered sale deed and much less an oral contract dissociated from it. We accordingly hold

that there is no reason for interfering with the decision of Wadsworth, J. in the second appeal. The Letters Patent appeal is dismissed with costs.