Bombay High Court
Shivlingappa Basappa vs Chanbasappa Fakirappa on 1 December, 1905
Equivalent citations: (1906)8BOMLR16
JUDGMENT Lawrence Jenkins, K.C.I.E., C.J.
1. The plaintiff sues to obtain possession of a house, alleging a sale-deed executed in his favour by defendant No. 1.
2. The first Court held the sale deed not proved.
3. The lower appellate Court did not go into that question, but considered that Section 305 of the Civil Procedure Code, furnished an answer to the suit.
4. From that decision the present appeal is preferred.
5. As the lower appellate Court came to no finding on the issue whether or not the plaintiffs sale deed was proved, we must deal with this appeal as though the sale-deed had been proved.
6. Prima facie, a sale-deed executed by one person in favour of another operates to convey to that other the interest of the executant in the property the deed purports to pass. But to prevent frauds on decree-holders it is provided by Section 276 of the Civil Procedure Code that "when an attachment has been made by actual seizure or by written order duly intimated and made known in the manner aforesaid, any private alienation of the property attached, whether by sale, gift, mortgage or otherwise, .... during the continuance of the attachment, shall be void as against all claims enforceable under the attachment."
7. The alleged sale-deed on which the plaintiff relies would be a private alienation, and, if made during the continuance of an attachment, it would be void to the extent indicated in the section.
8. But the view that the plaintiff's title is defective has been based in the judgment of the laws Court and in the argument before us not on Section 276, but on Section 305 of the Civil Procedure Code.
9. Assuming, for the sake of argument, that Section 305 applies, has it the effect which has been ascribed to it? We think not.
10. It is an enabling section, and qualifies the prohibition contained in Section 276; on compliance with the conditions of that section a private alienation, notwithstanding Section 276, becomes absolute even against all claims enforceable under the attachment.
11. If it did not become absolute under Section 305, then it would not be operative against claims enforceable under the attachment, but to that extent would be defeasible.
12. That appears to us to be the scheme and effect of the Code, and we hold that the learned Judge has fallen into an error in supposing, on the assumptions that he has made, that Section 305 furnishes an answer to the plaintiff's claim.
13. We must send back the case for the determination of the issues and for a re-trial in the light of these remarks; and for that purpose we must reverse this decree and direct that the costs shall be costs in the suit.