NARAYAN Vs. VITHOBA

JUDGEMENT

(1.) THE plaintiffs, Vithoba and Sambhaji, brought this suit in the Court of first Subordinate Judge, 2nd class, for possession of a two annas share in mouza Devali and a fourth share in the house and kotha specified in para. 6 of the plaint. Nago, Ramnath and Maroti, now deceased, whose widow is Mt. Gaji, owned an eight annas share in the village as well as in the house and kotha in question. The plaintiffs rely on a sale-deed, dated 30th June 1924, (Ex. P. 1) executed by Nago in their favour. On 22nd March 1917 Ramnath, Nago and Mt. Gaji, widow of Maroti, had sold their eight annas share and the house and Kotha to Dhanu, the father of Defendants 1 and 2, Narayan and Govinda. Defendants 3 and 4 are the nepnews of Defendants 1 and 2, and all the four defendants constitute a joint Hindu family. Dhanu and all the defendants have been in possession of the two annas share and of the house and kotha in question since the sale in their favour. It, however, transpired in another suit that the sale in favour of Dhanu was effected while Collector's proceedings were pending in respect of Nago's two annas share. The plaintiffs, in those circumstances, came to Court claiming the subjects as stated.

(2.) THE Subordinate Judge, on the issues which arose on the pleadings of the parties, held that the sale deed of 30th June 1924 had been duly executed for consideration. He further held that the doctrine of part-performance did not apply to the case, inasmuch as the sale-deed in the defendant's favour was void ab initio; that no separate agreement to sell could be implied from the sale-deed in the defendants' favour and that, even if there had been a previous oral agreement to sell, it could not revive after the sale-deed was found to be void. On these findings decree was granted in respect of the two annas share to the plaintiffs, but the relief as regards the house and kotha was refused, because in the opinion of the Subordinate Judge these had not come under the purview of the Collector in the execution proceedings.

(3.) A long and elaborate argument has been addressed to me on the assumption that there was in the present case an agreement to sell. Even admitting that the sale in Dhanu's favour was a void one, it has been urged that, with reference to para. 11, Schedule 3 of the Civil P.C., the said provision does not prohibit the transfer in future of an interest in the property but only lays an embargo against the transfer of the present interest therein. This was the principle laid down in Muhammad Sayeed v. Muhammad Ismail [1911] 33 All. 233 by Stanley, C.J., and Banerji, J. The word "alienate" in para. 11 of the Schedule quoted above was held to be used ejusdem generis with the preceding words "mortgage, charge and lease." I see no reason to differ, as at present advised, from the interpretation put by the learned Justices on the provision in question. It has been urged on behalf of the appellants that the position in the present case was exactly the same, that, if there was an agreement to sell, no present interest in the property was created: cf. Section 54 of the Transfer of Property Act, Clauses (5) and (6), and Gharamudi v. Raghavulu [1916] 39 Mad. 462. In the latter case the learned Justices pointed out that such a contract as one to convey an immovable land in future for a certain amount is only a personal contract and gives rise to a right in personam which may be satisfied either by the performance of the specific act in question or by the giving of compensation.