Madras High Court
Somu Achari vs Singara Achari And Anr. on 14 February, 1945
Equivalent citations: (1945)2MLJ17, AIR 1945 MADRAS 407
JUDGMENT Somayya, J.
1. The plaintiff executed Ex. P-1 in favour of his brother, Singara Achari, on 3rd December, 1929. The two were brothers and the plaintiff relinquished his share in the family properties for a sum of Rs. 150. The relevant part of this document runs thus, In respect of the properties belonging to both of us in 108, Narayana Mangalam, Nanni-lam taluk, Kodavasal Sub-district, Tanjore District, and in respect of my share therein, you shall yourself take the entire properties and discharge all the debts due and recover the outstandings, if any. To this effect we have agreed, and in full quit of my right fpr a share, it is settled that I should take Rs. 150 and as I have received the said sum of Rs. 150 by the execution of a promissory note by you this date, I have no manner of right or claim in respect of the undermentioned family properties or the debts and outstandings. To this effect I have executed this release.
2. The promissory note was transferred to one Swaminatha Pathar who filed a suit upon it and obtained a decree. The decreeholder was unable to realise any amount and he thereafter assigned his decree, under Ex. P-3 on 3rd July, 1942. The present suit was filed on 3rd August, 1942, to recover the amount of Rs. 150 with interest claiming a charge on the property. The charge claimed is that of the unpaid vendor given under the Transfer of Property Act. It is found that the second defendant is not a bona fide purchaser who took an alienation of the property without notice of the charge if one is to be held to exist in favour of the plaintiff. The only question therefore is whether there was a charge created under the Transfer of Property Act in favour of the plaintiff and whether the suit is in time. On the first question the lower Courts have held that the document is only a release and not a sale and that therefore the provisions of Section 55 of the Transfer of Property Act are not applicable. I am unable to agree with this conclusion. The document which has been set out clearly says that in full quit of the executant's right to a share he was to be paid Rs. 150. The definition of the sale contained in Section 54 of the Transfer of Property Act is satisfied in this case. Under Section 54, "sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. In the present case, a sum of Rs. 150 promised to be paid is the price. The price must no doubt be in money and that requirement is satisfied in this case. The answer would have been different if what was promised to the plaintiff under the document was some other property or something which is not money. Here it is Rs. 150 which is the consideration and this part of the definition is therefore satisfied. Then it is said that the expression used is release and that a release is a mere relinquishment and does not operate as a transfer. It has been pointed out repeatedly by this Court that what we have to do is to see all the terms of the document and consider whether there is not an intention that what was till then the right of the executant is being conveyed to the person in whose favour the document is executed. The word release is not conclusive. Doraiswami Pillai v. Chinnia Goundan (1917) 34 M.L.J. 258, is in point. In that case, the plaintiff filed the suit on the footing that his father was adopted by the widow of the last maleholder. The adoption was denied by the defendants and thereupon the plaintiff armed himself with a document from a person who would be entitled to succeed to the property if the adoption of the plaintiff's father was not true or valid. The document was produced in Court and marked as Ex. R. By that document the executant released all his rights in favour of the plaintiff. It was contended that the document was only a release and not a conveyance. The learned Judge in dealing with this contention says at page 266, By that document the heir released all his rights in favour of the plaintiff. We cannot agree with the Subordinate Judge that Ex. R does not purport to be and is not a conveyance. The word used is "release" but the intention to transfer any rights which the executant of the document has is clear and we see no sufficient reason why it should not be treated as a conveyance.
3. In the present case the right of the executant was to a half share in the entire family properties. That is made over to Singara Achari in consideration for a sum of Rs. 150. I hold that the document satisfies the terms of Section 54 of the Transfer of Property Act. There is nothing in the Hindu law to prevent a member of a joint family from selling his share to.another member of the family and Ex. P-l appears to me, to be a sale of this nature. Consequently Section 55 of the Transfer of Property Act applies and the plaintiff had a charge for the unpaid purchase money. It is not contended that the mere execution of a promissory note for the amount of the unpaid purchase money is a contract to the contrary within Section 55 of the Act.
4. The next question is whether by reason of the promissory note having been transferred to Swaminatha Pathar and a decree having been obtained thereon, the right of the plaintiff to enforce the charge is lost. A somewhat similar question arose in Bhavani Ammal v. Nataraja Iyer (1945) 1 M.L.J. 165. There, the promissory note which was executed for a debt due by the joint family was transferred to her daughter for collection. Then suit was filed by the assignee and nothing was recovered. Thereupon both the assignor and the assignee joined in the suit as plaintiffs 1 and 2 and filed the suit for recovery of the amount from the joint family property basing the suit on the original debt. The question was whether the transfer of the promissory note in favour of another person who obtained a decree thereon put an end to the claim on the debt. It was held that the fact that the promissory note was transferred to a third party does not mean that the right to proceed to recover on the original debt is lost. In this case the promissory note was no doubt made the subject of a suit and a decree but the decree has been transferred by Swaminatha Pathar to the plaintiff. No amount was recovered by Swaminatha Pathar, the decreeholder under that decree. If the mere execution of a promissory note does not put an end to the charge, then the fact that the suit was filed on it and a decree obtained does not put an end to the charge. If the promissory note was sued upon and money recovered, then the. claim would be satisfied, but that is a different matter. In this case the decree was assigned by Swaminatha Pathar in favour of the plaintiff and there is no further impediment in the way of the plaintiff in getting his relief on the charge created by Section 55 of the Transfer of Property Act.
5. The last question is whether the suit is in time. The plaintiff says that the suit is. saved from the bar of limitation by Ex. P-2. Ex. P-2 runs thus, Does it not strike you that you have sufficiently disgraced me by having me arrested? When the decreeholder is asked to release me he says he could not do so without your permission. When you have the security of the property why should you send me to jail unnecessarily? Realise the amount by proceeding against the property.
6. This is a letter addressed by the first defendant to the plaintiff. It unmistakably shows that there was a subsisting liability. In fact, the writer asks the plaintiff to release the amount by proceeding against the property and also takes the plaintiff to task for sending him to jail unnecessarily when there was the security of the property available. We cannot have an acknowledgment of a subsisting liability in clearer terms. The result is that the suit succeeds and there will be a decree as prayed for with costs throughout. The preliminary mortgage decree will be drawn up with 15th April, 1945, as the date fixed for payment. The plaintiff will have his costs throughout. No leave.