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TMI Blog1927 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff then instituted the present suit as a regular suit for having set aside the effect of that order in execution proceedings. The Court of first instance granted a decree to the plaintiff, but the lower appellate Court dismissed the plaintiff's suit, The plaintiff has thereupon filed this second appeal. 2. The manner in which this case would appear to have been presented to the lower appellate Court was that there was an oral contract by and between defendant 1 and defendant 2 to the effect that on defendant 1 paying to defendant 2 the amount which defendant 2 was owing at the time to one Venkatachala who was the defendant 2's vendor, defendant 2 should make a conveyance or effect a re-sale of the property to defendant 1. The lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93, Evidence Act, which is really in the nature of a proviso to Section 92, the plaintiff, who is a third person and was not a party or privy to the contract, is not prevented from showing what really the contract between the parties was. That undoubtedly was the basis of the decision of their Lordships of the Judicial Committee in the case of Maung Kyin v. Ma Shwe La A.I.R. 1917 P.C. 207. The facts of that case seem to be uncommonly like the facts of the present case. But on a careful examination of the case it turns out that their Lordships were considering transactions in Burma which arose there long before the Transfer of Property Act was extended to that province. The contention, as put forward by Mr. Venkataram Iyer, the learned vakil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale of property a contract was entered into by parol by the purchaser which had the effect of giving him (the vendor) right to redeem the property. Mr. Venkatarama Iyer argued that if it was the latter, namely the conveyance by the purchaser to the vendor of the real right of equity of redemption, that was a contract which related admittedly to immovable property of over ₹ 100 in value and could be effected only by a registered instrument in writing and as there is no such instrument no such contract could be proved. 4. Again, if the matter has be to looked at from the other way, a sale or a mortgage though involving conveyance or transfer of immovable property is none the less a contract, and when two parties enter into a contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence Act, undoubtedly came to the conclusion that the plaintiff who was no party to the contract was entitled to show the real agreement between the parties. Their Lordships, however, had not to deal with a. case where under the law then in force the contract which was sought-to be proved by the plaintiff was a contract which was required to be in a particular form. 5. I therefore consider that though that case appears to be a case very similar to the present one and almost on all fours with the case before me the principle of the decision in that case is not applicable to the present one. Let us see for a moment what consequences may follow if, in spite of the requirements in law that certain contracts should be carried out in a particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registration Act. Further, having regard to the terms of Section 91, Evidence Act, what the Court has got to do is so to find out the real contract between the parties. If there is a document by which the property is absolutely conveyed by one party to another either with the reservation of the right in the vendor to redeem the property or the grant by this purchaser to the vendor of such a right, it must undoubtedly be regarded as a transaction affecting immovable property and a contract by which such right is either reserved or transferred must according to law be by a registered instrument and there is no question in this case of such right not being over ₹ 100 in value. The learned vakil for the respondent also referred to the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular kind of contract and a particular kind of disposition of property to which certain recognized incidents of terms invariably attach. It is a ' transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced by way of loan. These are all terms of the contract, and all these terms are conveyed by the one word "mortgage." I may observe in passing that that case was also one which followed on a claim to attach property. 7. One other point may also be referred to, and that is that under the Transfer of Property Act a deed of sale requires no attestation at all, whereas a mortgage can be effected only by a registered instrument attested by two witnesses. When a particula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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