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Munni Kunwar v. Madan Gopal

Allahabad High Court

Nov 5, 1915

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CASE NO.

Appeal No. 32 of 1915, under section 10 of the Letters Patent

Attorney(S)

Dr. S.M Sulaiman, for the appellant:—

Mr. A.P Dube, for the respondent:—

Conveyance is something more than a contract; as soon as the sale-deed is executed the transaction passes from the domain of contract into that of conveyance. Now contracts are governed by the Contrast Act which requires mutuality; but conveyances are governed by the Transfer of Property Act. Section 5 defines transfers, and it does not necessarily require anything to be done by the transferee before the transfer is complete. Section 7 of the Transfer of Property Act, requires that a transferor must be a person competent to contract; whereas section 6(h) contains no such requirement in case of a transferee; it only says that he must not be legally disqualified from being a transferee. Now there is no provision of law which legally disqualifies a minor from being a transferee. Section 136 of the Transfer of. Property Act shows the kind of persons who are so disqualified, and a minor is not included therein. On the other hand, section 127 expressly shows that a minor can be a donee. Section 54, which defines sale, does not require anything to be done by the vendee before it is complete; hence competency to contract cannot be essential. In the case relied upon by Piggott, J. viz., Navakotti Narayana Chetty v. Logalinga Chetty it seems that the minor had promised to pay the price and hence it must be said that there was no mutuality. The Privy Council case of Mohori Bibee v. Dhartnodas Ghose does not apply, as it was a case of contract. The cases in point are Raghwnath Baksh v. Haji Sheikh Muhammad Baksh and Ulfat Rai v. Gauri Shankar. A minor therefore, it is submitted, can be a transferee. Here it has been found that the father of the minor paid the money by cheque.

The original finding of the District Judge in this case was, and his finding on remand has been, that the sale was negotiated by the minor herself throughout. The case has all along been dealt with on that footing, as is evident from the judgment of the single Judge of this Court. Upon the issue as to whether consideration did actually pass, the finding has been returned in the affirmative. The fact that the learned District Judge says that the father paid the money by cheque cannot be allowed to disturb his previous findings, because this was not the issue sent down on rein and. The Privy Council in Mohori Bibee v. Dharmodas Ghose has distinctly held that a contract by a minor is void and not voidable. No distinction can be drawn between contract and a conveyance. A conveyance is nothing but an executed contract. Conveyance is that portion of an executed contract in writing which actually purports to convey property from the seller to the buyer. The transaction as evidenced by the sale-deed is a contract of sale and the actual clauses conveying property cannot be treated as something entirely different from the executed contract as put down in the deed. Those clauses cannot be taken out of chair setting. The deed, it is true, is not signed by both parties; but a mortgage-deed is not signed by both parties, yet it was in Mohori Bibee's case dealt with as a contract. A minor may take by gift, which is a unilateral transaction, but a sale pre-supposes both offer and acceptance by a minor being a bilateral one. The Privy Council were dealing with a mortgage under the Transfer of Property Act, but on consideration of sections 4 and 7 of that Act, held that the matter must be decided in accordance with the provisions of the Contract Act. If a minor can enforce a contract, we get back to the old state of a voidable contract. Conveyance is not different from contract. See Blackburn on Sale, Preface, and pages 129, 130, 131. The same distinction between a contract to sell and contract of sale is maintained by the Transfer of Property Act, section 54. In Mir Surwarjan's case a sale was made in favour of a minor. The manager had intervened and actually paid the consideration. But their Lordships held that the minor could not get specific performance because there was no mutuality. This case is nothing but a case of specific performance. A contract was entered into which purported to pass title and possession. The minor claims possession in virtue of the title so passed. When the contract goes everything founded upon it or resulting from it ought to go. Trevelyan in his book on Minors says that the effect of the Privy Council ruling is that no effect could be given to the transaction at the instance of either party, I rely on the reasoning of I.L.R, 33 Mad., 312, and on the reasoning of the learned single Judge of this Court.

JUDGES

Hon'ble Mr. Syed Mohd. Rafiq

Hon'ble Sir Henry George Richards

Hon'ble Sir Charles Ross Alston

ACTS

SECTION 5 TRANSFER OF PROPERTY ACT

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Factual and Procedural Background

The defendant formerly owned a house which was under attachment in execution of a decree. Before the sale a deed of transfer was executed in favour of the plaintiff, who was the defendant's daughter-in-law and was under age at that time. The plaintiff alleged she paid the purchase money and became the purchaser; the defendant alleged the transaction was fictitious and that no consideration passed. By an order dated 9 July 1915 the court referred an issue to the court below; that court found that the purchase money was really paid by the plaintiff's father and was duly received by the defendant. The present appeal challenges the decrees of the courts below and of the learned Judge of this Court refusing possession to the plaintiff.

Legal Issues Presented

Whether, given that the deed of transfer to the plaintiff was executed while she was a minor and the purchase money was paid by her father, the plaintiff was entitled to recover possession of the house.
Whether the contract of sale was null and void (as contended by the defendant relying on Mohori Bibee v. Dharmodas Ghose and Navakotti Narayana Chetty v. Logalinga Chetty).
Whether the present suit should be regarded as a suit for specific performance, with the consequences that would follow.

Arguments of the Parties

Plaintiff's Arguments

It was alleged that the plaintiff paid the purchase money and became the purchaser.
After the court's finding, it was established that the money was really paid by the plaintiff's father and was duly received by the defendant, and the purchase was intended for the plaintiff's benefit.
The plaintiff relied on the cases Ulfat Rai v. Gauri Shankar and Raghunath Baksh v. Haji Sheikh Muhammad Baksh.

Defendant's Arguments

The whole transaction was fictitious and no consideration ever passed.
The contract for sale was absolutely null and void, relying on the decision in Mohori Bibee v. Dharmodas Ghose and Navakotti Narayana Chetty v. Logalinga Chetty.
Implicitly, the defendant's position was that the present suit must be treated like a suit for specific performance (which would raise different requirements).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohori Bibee v. Dharmodas Ghose	Cited by the defendant to support the contention that the contract of sale was absolutely null and void.	The court did not accept this as dispositive in the present facts and distinguished the situation, holding that where the vendor received the purchase money and executed a conveyance the transferee (even a minor) was entitled to possession.
Navakotti Narayana Chetty v. Logalinga Chetty	Cited by the defendant to support the contention that the sale was invalid.	The court did not treat the precedent as determinative of the present case and allowed the appeal, holding the transfer effective on receipt of purchase money and execution of conveyance.
Ulfat Rai v. Gauri Shankar	Cited by the plaintiff in support of its position.	The court's reasoning upheld the plaintiff's entitlement to possession where the purchase money was paid for her benefit and the conveyance executed, consistent with the plaintiff's reliance on authorities supporting recovery of possession in such circumstances.
Raghunath Baksh v. Haji Sheikh Muhammad Baksh	Cited by the plaintiff in support of its position.	The court's decision to decree the plaintiff's claim aligned with the plaintiff's authorities and the view that a transfer under these facts gives the transferee a right to possession.

Court's Reasoning and Analysis

The court reviewed the findings and statutory provisions. It noted that Section 5 of the Transfer of Property Act defines "transfer of property" and that Section 6(h) does not state that a transfer cannot be made to a minor. Section 7 provides that every person competent to contract and entitled to transferable property is competent to transfer such property, and nowhere does the Act provide that a minor is incapable of being a transferee. The court observed that transfers to minors of immovable property are common in practice and that Section 127 implies a person not competent to contract may be a donee of immovable property.

The court rejected the defendant's argument that the suit must be treated as a suit for specific performance; it distinguished the present case from a situation where the vendor, after agreeing to sell but before receiving the price, refuses to execute a conveyance. The court reasoned that if the purchase money was paid (by the father for the benefit of the daughter) and the defendant received the price and executed the conveyance in favour of the plaintiff, the plaintiff became entitled to possession irrespective of her minority. The court therefore found the decrees below and the learned Judge's decision to be incorrect on these grounds.

Holding and Implications

Appeal decreed; plaintiff's claim decreed.

The court allowed the appeal, set aside the decrees of the courts below and of the learned Judge of this Court, and decreed the plaintiff's claim with costs in all courts. The decision's direct effect is to grant possession to the plaintiff and reverse the earlier judgments. The opinion does not state that a new legal precedent was being established beyond the application of existing principles to these facts.

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Richards, C.J and Muhammad Rafiq, J.:— By our order, dated the 9th of July, 1915, we referred an issue to the court below. The finding on this issue has now been returned. We think it desirable very shortly to refer to the nature of the suit. The plaintiff is the daughter-in-law of the defendant. The suit is a suit to recover possession of a house. The house admittedly belonged at one time to the defendant. The house was under attachment in execution of a decree against the defendant. Before the sale a deed of transfer was executed by the defendant in favour of the plaintiff. She was his daughter-in-law, and her husband (the son of the defendant) was then alive. It was alleged on behalf of the plaintiff that she paid the purchase money of the house and became the purchaser. It was alleged on behalf of the defendant that the whole transaction was fictitious and that no consideration of any kind ever passed. As the result of the finding of the court below on the issue we referred, it is now established that the money was really paid by the father of the plaintiff at the time of the attachment and was duly received by the defendant. There can be no doubt (whether the money actually belonged to the plaintiff or belonged to her father) that the purchase was intended for her benefit. The question is whether under these circumstances the plaintiff was entitled to recover possession of the property, it being borne in mind that at the date of the deed of transfer she was under age. It is contended on behalf of the defendant that the contract for sale of the house was absolutely null and void, and the decision of their Lordships of the Privy Council in the case of Mohori Bibee v. Dharmodas Ghose and also the case of Navakotti Narayana Chetty v. Logalinga Chetty are relied upon. On the other side the case of Ulfat Rai v. Gauri Shankar and also the case of Raghunath Baksh v. Haji Sheikh Muhammad Baksh are relied upon. Section 5 of the Transfer of Property Act defines “transfer of property” as an act by which a living person conveys property to one or more other living persons, or to himself and one or more living persons. Section 6, clause (h), of the same Act sets forth the class of transfers of property which cannot be made. It does not state that a transfer cannot be made to a minor. Section 7 provides that every person competent to contract and entitled to transferable property is competent to transfer such property. Nowhere in the Act is it provided that a minor is incapable of being a transferee of property, and as a matter of practice, we are well aware that transfers of immovable property are every day made to minors. Section 127 by necessary implication shows that a person who is not competent to contract may be the donee of immovable property, and that even in the case of property burdened with an obligation if after he has become competent to contract and aware of the obligation he retains the property he because bound. It seems to as that the argument on behalf of the defendant amounts to this that the present suit to recover possession of the house must be regarded in exactly the same way as if the plaintiff was bringing a suit for specific performance of a contract. In our opinion it ought not to be so regarded. It could hardly be said, if it was shown beyond all doubt that the father of the plaintiff entered into a contract for the sale of this property and instead of taking the conveyance himself had directed the vendor to execute the conveyance in favour of his daughter, that she would not be entitled to recover possession. This in all probability was exactly what happened in the present case, but even if we assume on behalf of the defendant that it was the girl herself who entered into the contract and that it was her money which was paid to the defendant, it can make no difference. As soon as the defendant received the purchase money and executed the conveyance the plaintiff became entitled to the possession of the property. Very different considerations would arise if after having agreed to sell the property the defendant before receiving the price had refused to execute a conveyance and the plaintiff was driven to a suit for specific performance. In such case the plaintiff would have to set up the contract. In our opinion the decision of the court below and also of the learned Judge of this Court were not correct. We accordingly allow the appeal, set aside both the decrees of the courts below as also the decree of the learned Judge of this Court and decree the plaintiffs claim with costs in all courts.

Appeal decreed.