This case is related to Section 9 of Transfer of Property Act. Section 9 of the Act talks about oral transfer of property. It states that,
“A transfer of property may be made without writing in every case in which a writing is not expressly required by law.”
This means that that transfer of property can be made without writing in every case where writing is not expressly required by the statute. But there are a lot of cases where a written document is mandatory to transfer the property. Writing of contract is necessary for the following transactions:
- Sale of tangible immovable property of the value of Rs. 100 or upwards, or the sale of a reversion or other intangible thing–Section 54 of Transfer of property act
- In the case of a simple mortgage, and in the case of all other mortgages (except a mortgage by deposit of title deeds) when the principal sum secured is Rs. 100 or upwards–Section 59 of Transfer of property act
- In the case of a lease if it is from year to year, or for any term exceeding one year or reserving a yearly rent–Section 107 of Transfer of property act
- In the case of all gifts of immovable property–Section 123 of Transfer of property act
- All transfers of actionable claims–Section 130 of Transfer of property act
- Exchanges are subject to the same rule as sales–Section 118 of Transfer of property act
Serandaya Pillai and Anr. (The half- brother in laws of the first defendant and half-brothers of the second defendant)
Sankaralingam Pillai (the first defendant) and Gnanamuthammal (the second defendant and the plaintiff’s half-sister)
The plaintiffs were the half-brothers of the second defendant Gnanamuthammal whose husband is the first defendant.
The father of plaintiffs and the second defendant died when the second defendant was very young.
The second defendant has been brought up by the plaintiffs. She was considered not very good looking in their family. Therefore, eligible grooms were not forthcoming to marry her. She remained a comparatively old spinster till she was aged 28.
In fact, in this community of Nangudi Vellalas of Srivaikuntam, it is very unusual for a girl to remain unmarried till she becomes middle-aged. The plaintiffs finally selected the first defendant (Sankaralingam)as the groom for their half-sister.
They had to offer him special terms over and above the customary gift of a small extent of immovable property, which is prevalent in this community of Nangudi Vellalas and which custom is affirmatively found by both the Courts below and which is perfectly legal and valid. (Vide Palwanna Nadar v. Annamalai Ammal )
The plaintiffs entered into a contract with the first defendant, the consideration for which was the marriage of the first defendant with the second defendant, to settle upon them 74 cents of land bearing survey No. 362 and comprised in patta No. 471.
In pursuance of this contract the marriage took place and the defendants were put in possession of the land.
Subsequently, the parties had fallen out and the plaintiffs were evasively putting off the execution of a registered instrument in favour of the defendants and what they wanted the land which was given to the defendants back.
The case for the plaintiffs was on the ground that the gift was invalid, being hit by Section 123 of the Transfer of Property Act and Section 17 of the Registration Act and that it is not open to the transferees to plead part-performance.
The case for the defendants was that first of all this is a transaction contemplated under Section 9 of the Transfer of Property Act and need not be registered; and secondly, by virtue of there being a subsisting enforceable contract between themselves and the plaintiff, the plaintiffs, are not entitled to the declaration and injunction or in the alternative for recovery of possession asked for.
In the court it was proved that writing was not necessary under Hindu law to the validity of any transfer whatsoever, and in all ancient systems of law transfer of possession was the only requisite to the transfer of title.
The contract entered into by the plaintiffs with the first defendant for the consideration of his marrying the second defendant, is neither a sale, nor a lease, nor an exchange according the transfer of property act Sec 54, 59,107,103, etc.
This transaction was not void, because on the date of the filing of the suit, there is an enforceable contract subsisting between the parties. The contract has been freely entered into between the plaintiffs and the first defendant and there was good consideration [ Narayana Nambudri v. Unnimaya Antharjanam (1945)]
Therefore, the net result of this analysis is that this transaction will fall firstly under Section 9 of the Transfer of Property Act, and secondly, by reason of a subsisting and enforceable contract on the date of suit, the plaintiffs will be barred from obtaining the relief of declaration or recovery of possession.
Muhammad Sulaiman Khan v. Tar Khan (1889)
Arumugham v. Subramaniam (1937)
Bishan Dial v. Gazinuddin (1901)
Bhagwatibai v. Bhagwandas (1927)
Brojonath v. Maheshwar (1918)