Decided on November 05,1952



- (1.) THIS appeal raises a question under Section 43, Transfer of Property Act, on which there is conflict of opinion in this Court. Two decisions of this Court, --'alamanaya Kunigeri v. Murukuti Papiah', AIR 1915 Mad 972 (A) and --'vellayyammal v. Palaniandi Ambalam', AIR 1933 Mad 856 (B), have taken a view favourable to the respondents. But a different view was taken in --'official assignee Madras v. Sampath Naidu', AIR 1933 Mad 795 (C), by a Bench. Madhavan Nair J, in -' sreeramulu v. Somaraju', 1930 Mad WN 1054 (D), followed the earlier decisions and the Allahabad High Court has also accepted the earlier decisions of this Court as laying down the law correctly. There is also a decision of a single Judge Wadsworth J. in --'akkamma v. Ramalinga Reddi', 1937 Mad WN 416 (E ). In view of these conflicting decisions I think it is but proper that this appeal should be heard by a Bench and the papers will be placed before the Honourable the Chief Justice so that he may decide whether this case should be posted before a Bench or even at the outset before a Full Bench as it is essential that the conflict should be resolved once for all. JUDGMENT
(2.) SATYANARAYANA RAO J. : This appeal was referred to a Full Bench as there were conflicting decision's regarding the interpretation of Section 43, Transfer of Property Act.
(3.) THE plaintiff who was unsuccessful in the lower Court preferred this appeal against the judgment and decree of the District Court of Coorg in O. S. No. 1 of 1945. The plaintiff is the Jumma Masjid, Mercara, represented by its Mutavalli, Khan Sahib Abdul Rahman Khan. The suit is for recovery of possession of a half share in the immoveable properties described in the schedule attached to the plaint. According to the case of the plaintiff, the properties in suit originally belonged to one Sh. Basappa, and after his death in 1901, they devolved on his widow, Gangamma, who became a convert to Islam, and made a gift of these properties on 5-9-1932 to the Masjid. The properties continued in the possession of the plaintiff till the death of Gangamma which occurred on 17-2-1933. But on her death, Santappa and Basappa (this Basappa is a different person from Basappa the husband of Gangamma) the sister's son's sons of Gangamma's husband Basappa, became entitled to the properties as the reversioners to the estate. On 3-3-1933, under Ex. A. Santappa sold his half interest in the properties to the Mosque and therefore, it is claimed that under this document, the plaintiff will be entitled at least to a half share in the suit properties. The father of defendants 1 to 3 one Rao Bahadur Subbayya, claimed on the death of Gangamma that the properties belonged to him and his joint family, as they were purchased on 18-11-1920 'under Ex. III from Santhappa Basappa, and another in the name of his son, Ganapathi, who subsequently died leaving his widow the 4th defendant. He applied for transfer of patta and the Revenue authorities effected the transfer, and in pursuance of the order of the Revenue authorities, Rao Bahadur Subbayya took possession of the properties from the plaintiff. It is claimed by the plaintiff that the defendants had no title at all to the properties and that the plaintiff is entitled to a half share. It may be mentioned, even at the outset, that the title put forward by the plaintiff under the gift deed of Gangamma was not established in the trial Court. No deed of gift was produced and that title is now abandoned in the appeal. The title, therefore, of the plaintiff is now confined to the title acquired under the sale deed, Ex. A. executed by Santhappa.;

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