Memorandum on behalf of the Respondent

IN THE
HONBLE HIGH COURT OF RAJASTHAN

In The Matter of

SHESH MAL AND ORS.

(Plaintiff)
V.

HARAK CHAND AND ORS.

(Defendants)

CASE CONCERNING

SALE

ON SUBMISSION TO THE HONBLE HIGH COURT OF

RAJASTHAN

MEMORANDUM ON BEHALF OF THE DEFENDENT

EKTA CHANDRAKAR

Roll No:- 62

Section - C

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 Memorandum on behalf of the Respondent

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.. iii

INDEX OF AUTHORITIES... iv
STATEMENT OF FACTS. 1
ISSUES RAISED. 2
SUMMARY OF ARGUMENTS. 3
WRITTEN SUBMISSIONS... 4
CONTENTION I
THAT THERE WAS A SALE OF HOUSE PROPERTY UNDER SECTION 54 OF THE
TRANSFER OF PROPERTY OF ACT, 1882 4

PRAYER FOR RELIEF.. 8

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 Memorandum on behalf of the Respondent

LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

ALL. ALL INDIA LAW REPORTS, ALLAHABAD SERIES

BOM BOMBAY

CAL KOLKATA

CAL. CALCUTTA

D.W. DEFENDANTS WITNESS

LTD LIMITED

MAD. ALL INDIA LAW REPORTS, MADRAS SERIES

P.W. PLAINTIFFS WITNESS

RAJ. RAJASTHAN

REP. REPORT

S. SECTION

SC SUPREME COURT

V VERSUS

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 Memorandum on behalf of the Respondent

INDEX OF AUTHORITY

I. STATUTES/ RULES REFERRED

The Transfer of Property Act, 1882.

II. CASES REFERRED

Tribhovan Hargovan v. Shankar Desai AIR 1943 Bom 431.

Kuppuswami Goundan v. Chinnaswami Goundan AIR 1928 Mad 546.

Keshwar Mahton v. Sheonandan AIR 1929 Pat. 620.

Muthukarappan Samban v. Muthu Samban AIR 1915 Mad 573.

Ghanram v. Paltoo AIR 1954 Nag 109.

Sonai chutia v. Sanaram Chutia AIR 1916 Cal 934.

Bhika Bhai Nanabhai's AIR 1953 Bom 437.

III. BOOKS REFERRED

MULLA, THE TRANSFER OF PROPERTY ACT, (10TH ED. 2006).

SHRIVASTAVA, THE TRANSFER OF PROPERTY ACT WITH EASMENTS ACT, (1ST ED. 2014).

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STATEMENT OF FACTS

1. It has been mentioned in the plaint that the house situated in village Devria, Tehsil
Jetaran in the District of Pali, was the ancestral house of the plaintiffs. According to
the plaintiffs themselves Sheshmal migrated to Maharashtra and started residing in
village Chandai in District Aurangabad, in the State of Maharashtra.

2. The plaintiff's case is that the house in dispute was lying vacant, but five years prior
to the institution of the suit the defendants, who were related to the plaintiffs as they
came from the same stock, unlawfully entered the disputed house and occupied the
same without any right. Thereafter, the defendant-respondents also obtained a patta in
respect of the disputed house from the Panchayat Devria on March 8, 1959.

3. The plaintiffs filed the suit on October, 21, 1964 and prayed therein that the
possession of the house in dispute be restored to them and they may also be awarded
mesne profits at the rate of Rs. 10/- per month, with interest at the rate of 6 per cent
on the amount of mesne profits.

4. Suganchand defendant and his son Dharamchand were in occupation and possession
of the disputed house for more than 12 years. In the second place, it was pleaded by
the defendants Sugan Chand and Dharam Chand that when they came to know that
the earlier patta of the house in dispute was with the plaintiff-appellants, who were
their relatives, an oral sale was made by the plaintiff-appellants in favour of the
contesting defendants on June 14, 1958 for a sum of Rs. 99/-.

5. That the contesting defendants paid a sum of Rs. 99/- to the plaintiff-appellants, who
delivered the patta of the disputed house to the contesting defendants and also
executed an unregistered deed of sale in favour of the contesting defendants on the
same day.

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ISSUES RAISED

1. Whether there was a sale of house property under Section 54 of the Transfer of
Property of Act, 1882?

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SUMMARY OF PLEADINGS

1) That there was a sale of house property under Section 54 of the Transfer of
Property of Act, 1882.
It is most humbly submitted that there was a sale of house property under Section 54
of the Transfer of Property Act, 1882 such is the case wherein the tangible immovable
property was with the possession of the respondent and transfer was done orally and
there was delivery of the property.

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WRITTEN SUBMISSION
CONTENTION I
THAT THERE WAS A SALE OF HOUSE PROPERTY UNDER SECTION 54 OF THE TRANSFER OF

PROPERTY OF ACT, 1882.

It is most humbly submitted that there was a sale of the house property wherein an oral sale
was made by the plaintiff in favour of the defendants on June 14, 1958 for a sum of Rs. 99/-
and that the defendants paid the said sum to the appellant and executed an unregistered deed
of sale in favour of the respondents. It is submitted that the defendants in the instant matter
were in possession of the property sold thereof and after such sale, held ownership rights too.

To further substantiate this, the counsel on behalf of the defendants puts forth that Section 54
of the Transfer of Property Act, 1882 (from henceforth referred to as the TPA 82) states that
Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and
part-promised.
Sale how made Such transfer, in the case of tangible immoveable property of the value of
one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can
be made only by a registered instrument. In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer may be made either by a registered
instrument or by delivery of the property. Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person as he directs, in possession of the
property.

Therefore, it is submitted that there was a transfer of ownership in exchange for a price of Rs.
99/- and such was made by an oral sale along with the fact that the defendants were already
in possession of the property; the delivery of the property in order to complete sale was done.

It is most respectfully submitted that delivery of possession takes place when the seller places
the buyer or such person as he directs, in possession of the property.1 In the case of

1 Mulla, The Transfer of Property Act, 468 (10th ed. 2006).

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Tribhovan Hargovan v. Shankar Desai2, it was held that the observations made in
Kuppuswami Goundan v. Chinnaswami Goundan, 3that the sale of immoveable property for
less than Rupees 100/- must be by a registered instrument and if there is an unregistered
instrument the same is invalid and could not be used for the purpose of proving the title of the
vendee, must be regarded as obiter. It was pointed out that Section 54 of the Transfer of
Property Act refers to delivery of the property as one of the modes by which the transfer
could be effected, in case of sale of immoveable property of the value of less than Rs. 100/-
and that although an unregistered sale deed could not be used for proving the title to the
property in question, yet a party was not precluded from proving the sale by delivery of the
property. It was observed in that case that if it is proved that there was a contract of sale prior
to the delivery of the property might be sufficient to establish the same.

It is most respectfully put forth that a sale deed though not registered is admissible as
evidence of contract of sale as held in the case of Keshwar Mahton v. Sheonandan4. As in the
instant matter there was an unregistered sale deed which is evidence of a contract of sale
which establishes delivery of property.

In the case of Muthukarappan Samban v. Muthu Samban5 It was held in that case that both
Section 49 of the Registration Act and Section 54 of the Transfer of Property Act require
delivery of possession of the property to the vendee in the case of a sale of immoveable
property, but in case of an oral sale of immoveable property of the value of less than Rs.
100/-, the mere fact that the vendee was already In possession of the property, which was the
subject-matter of sale, did not invalidate the sale, provided the vendee by appropriate acts or
declaration controverted the earlier possession of the vendee into that of a purchaser.

In the case of Ghanram v. Paltoo6 where the purchaser was already in possession as a lessee,
it was held in that case that it was not necessary that there should be physical delivery of
possession and it would be enough if the character of possession was changed and if the
seller converted by appropriate declaration or acts, the previous possession of the purchaser
2 AIR 1943 Bom 431.
3 AIR 1928 Mad 546.
4 AIR 1929 Pat. 620.
5 AIR 1915 Mad 573.
6 AIR 1954 Nag 109.

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from that of a lessee into plenary possession as that of the purchaser of the property which
was subject-matter of sale. Then they would constitute sufficient delivery of such property.

It is most respectfully put forth that in the case of Sonai chutia v. Sanaram Chutia3 it was held
that everything was done by the vendor that could be done in such circumstances to deliver
possession and it was held that the delivery of possession under the circumstances was
sufficient for the purposes of Section 54 of the Transfer of Property Act. In the instant matter
the execution of an unregistered sale deed and transfer of the patta would amout to overt acts
done by the plaintiff to deliver the possession of the property in favour of the respondents. In
8
Bhika Bhai Nanabhai's case proceeds on the basis that in the case of the sale of immoveable
property of the value of less than Rs. 100/- there are only two modes in which the sale could
be effected, in order to pass a valid title under Section 54 of the T. P. Act, namely, that there
should be a registered instrument evidencing the sale or there should be an oral sale
accompanied by delivery of possession.

It is most humbly put forth that when two alternative modes of transfer by sale are provided
by law in cases of sale of immovable properties of value less that Rs. 100/-, how can the
parties be deprived of one of the modes specially prescribed by Section 54 of the Transfer of
Property Act. Thus, registration of the instrument of sale should not be a factor impeding the
sale.

It is also put forth that there is sufficient oral evidence on record which has been relied upon
by the trial court, including the statements of D. W. 3 Suganchand and D. W. 1 Sampatraj,
coupled with the fact that the patta of the disputed property was produced in the suit lay the
contesting defendants. The plaintiffs have given a fanciful story as to how the patta came into
the possession of the defendants and it was stated by him that the said patta was kept in the
house in dispute and it was taken possession of by the contesting defendant Sugan Chand,
when he unlawfully took possession of the said house in June, 1958, This story has been
disbelieved by the trial court and it has been observed that no person would keep valuable

documents of title like a patta in a vacant and dilapidated house, while the plaintiffs
themselves were residing in a far distant place Chandai, in district Aurangabad in the State of

3 AIR 1916 Cal 934.

8 AIR 1953 Bom 437.

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Maharashtra for almost 30 years. If the plaintiffs did not hand over the patta to Sugan Chand,
as stated by him as D. W. 3, then how could the plaintiffs' document of title relating to the
disputed property travel to the defendants and how could they produce the said document
from their custody?

It is also submitted that a postcard has been admitted by the plaintiff P. W. 9 Sheshmal to be
in his hand-writing, in which the plaintiff expressed the intention of selling the disputed
property and asked the contesting defendants to find out a buyer for the said property. The
other plaintiff, Parasmal had also expressed the same intention in the letter. Moreover, the
letter completely exposes the falsity of the case of the plaintiffs, as it clearly refers to the
alleged sale. It is humbly submitted that these findings of the trial court and the statements of
the witnesses prove the fact that there was a sale.

It is therefore, most respectfully submitted that there was a sale of the house property under
Section 54 of TPA 82 and that it was complete as there was delivery of the property.

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PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Hon'ble Court that it may be pleased to
adjudge and declare that:

1. The Appeal be dismissed.

2. To declare that the sale in question was a valid one as under Section 54 of TPA 82 and
that the defendants are in legal possession and title of the house property.

And/Or
Give any other order which the High Court may deem fit in the interest of Justice Equity
and Good Conscience.

All of which is most humbly and respectfully submitted.

Place-: Jodhpur
th
Date-: 6 April, 2017

COUNSEL ON BEHALF OF THE DEFENDANT

EKTA CHANDRAKAR

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