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TMI Blog1936 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... red) Moolla agreed to sell to the company his business, the goodwill thereof, and the several properties or assets specified in the first schedule thereto. Item No. 88 in the first schedule was: "Purchase of the right of Maung Chit Maung in the estate of his deceased father U Ohn Ghine... Rs. 2,50,000. 2. The plaintiff Company, having been incorporated on January 21, 1921, the board of directors at a meeting held on the following day January 22, 19.21, resolved that the company do: ratify, confirm and adopt the agreement dated December 22, 1920, and made between Mohammad Ebrahim Moolla of the first part, Mariam Bee Bee of the second part and Mahomsd Ali Modan as Trustee of the Company of the third part aS provided under Article 4 of the Articles of Association, and that this agreement be prepared and executed without delay and that Mr. Hashim Esooff Moolla do place the Seal of the Company to the said agreement. Resolved further that on the execution of the above agreement Mr. Hashim Esooff Moolla on behalf of the Company do accept and carry out, all conveyances, transfers or assurances of the various properties mentioned in the aforesaid agreement from Mr. Mohammal Ebrahi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid to Mah Yait and the remainder being divided equally between the children. If any child shall die before the youngest child attains the age of 20 leaving a child or children, such child or children shall take and if more than one equally between them the share which his, her or their parent would have taken. After the youngest child shall have attained the age of 20 the Kett proceeds of sale of the properties described in the first, second and third schedules and of any other properties of investments representing the properties in the first schedule shall be divided in equal shares. Between the children then surviving and the issue of any child or children who may then be dead such issue taking and if more than one equally between them the share which his, her or their parent would have taken if he or she had survived until the youngest attained the age of 20. 8. The proceeds of sale of the property in the fourth schedule shall be divided in equal shares among all the issues in whatever degree living at the death of the youngest child. Until the youngest child attains the age of 20 years the income shall be paid and divided in the same manner as the income of the other prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hild who was dead to represent his father's share. There was a slight alteration in the trusts in relation to the properly comprised in the forth schedule, because in that case the property was not to be distributed until the death of the youngest child, and it was to be divided then amongst the children living at that date. 6. Lord Atkin went on to say: That is a very plain and ordinary settlement and it gives very plain and well understood rights to all the parties who benefit under the settlement: a vested right in the income, contingent rights in the corpus. 7. The question now is whether the interest of Maung Chit Maung was an interest in immovable property. The Division Bench of the Rangoon High Court See 154 Ind. Cas. 9-[Ed.] Page, C.J. and Mya Bu, J., have answered this question in the affirmative, and acting on the law laid down by the Board in Ariff v. Jadunath Majumdar 58 I.A. 91 : 131 Ind. Cas. 762 : A.I.R. 1931 P.C. 79 : 60 M.L.J. 538 : 33 L.W. 586 : 53 C.L.J. 359 : 35 C.W.N. 550 : 15 R.D. 354 : 8 O.W.N. 739 : (1934) M.W.N. 480 : Ind. : Rul. (1931) P.C. 151 : 33 Bom. L.R. 913 : 58 C. 1235(P.C.), have dismissed the suit. 8. The subject-matter of Chapter III of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration Act only requires certain documents to be registered on pain of the consequences entailed by Section 49, the Transfer of Property Act by Section 54, enacts that (with a limited exception) the sale of immovable property can be made only by registered instrument. The provisions of the Registration Act by themselves would not operate to render invalid a mere oral sale. On the other hand the somewhat wide phrase "any interest...to or in immovable property" which occurs in Clause (b) of Section 17(1) of the Registration Act does not occur in Section 54 of the other statute. 12. A consideration of Section 51 of the Transfer of Property Act shows that the section in its structure is much influenced by the decision of the legislature to exempt transactions of sale of land of small value from the requirement of registration. It would be obviously undesirable that transactions in contingent or remote interests should be exempted from registration merely on the ground that at the time of the transaction the value was small. For this reason and also for the reason that, in the absence of a registered instrument, delivery is to be required as a formality necessary to the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s gifts to a widow of a share of income to be derived from land and of a share in the proceeds of sale of land were held to be interests in land within the meaning of Section 9 of the Dower Act of 1833. 14. These cases do not stand alone. Thus In re Watts (1885) 29 Ch. D. 947, a testator was entitled to £800 secured by mortgage upon the life interest of a lady and the reversionary interest of one of her children in the trust funds of her marriage settlement. Part of these funds was invested in mortgage of real estate. It was held that the £800 was an interest in land within the Mortmain Act 9 Geo. 2 c. 36 Section 3. In Miller v. Collins (1896) 1 Ch. 573 : 65 L.J. Ch. 353 : 74 L.T. 122 : 44 W.R. 466, it was held that a married woman's equitable reversionary life interest in a sum of money properly invested by her trustees upon a mortgage of land was an interest in land within the 77th section of the Fines and Recoveries Act, 1833. On the other hand it was held in In re Lynes Settlement Trusts (1919) 1 Ch. 80 : 88 L.J. Ch. 1 : 120 L.T. 81 : 63 S.J. 53 : 35 T.L.R. 44, that the reversionary interest of a daughter in the trust funds of her father's marriage settleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assessment due upon certain land was assigned by an unregistered instrument. It was held that the instrument required registration as the assessment had not accrued due at the date of the assignment, but was only to become due in the future. 16. It was contended for the present appellants that while a right in respect of future rents might he immovable property where the owner of the right was himself entitled vis-a-vis the tenants to collect and enjoy the profits of the land, the same reasoning could not be applied to a case, such as the present, where the right granted was subject to the intervention of trustees, and was no more than a right to receive from the trustees a sum of money out of the income of the property. The case of Natha Kerra v. Dhunbaiji 23 B. 1 is, however, in conflict with any such contention. There the testator had directed his trustees to hold certain immovable property. upon trust to pay the rents, profits, interest, dividend and produce of so much thereof as shall from time to time under the provisions of this my will shall remain or be in their hands, unto my wife during the term of her natural life, she there out maintaining, educating and bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll for an assignment of the debt to them, they are nevertheless as much cestuis qui trust of the whole security an I debt and land, and each of them has an interest, though possibly a limited interest, in the one quite as much as the other. It is true they can only reach the mortgagor or the land through their, trustee; but this does not show that they have no interest in the land, the legal estate of which is in their trustee. 19. These observations are at least sufficient answer to the view that the beneficiary has no interest in immovable property because his right is only to call upon the trustees to carry out their trust or because the distinction between legal and equitable estates does not as such exist in the law of India. 20. Upon a full consideration of the nature of the interest in the income of his father's estate which was given to Maung Chit. Miung by the deed of settlement of May 5, 1908, and also of his interest in the ultimate proceeds of sale of the properties described in the schedules thereto, their Lordships are of opinion that the High Court of Rangoon rightly held in appeal that the interest of Maung Chit Maung was immovable property within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration of trust is a question not readily answered, and in their Lordships' opinion there is no reasonable evidence of any declaration whereby Moolla expressed an intention to assume any such character. As a means of overcoming the difficulties arising in the plaintiff Company's path from Section 54 of the Transfer of Property Act, the suggestion of a trust is misconceived. No doubt a contract may raise a trust. Indeed, as was recalled by Lord Macnaghten in Tailby v. Official Receiver (1888) 13 A.C. 523 at p. 546 : 58 L.J.Q.B. 75 : 60 L.T. 162 : 37 W.R. 513. Lord Thurlow in Legard v. Hodges (1792) 1 Ves. Jur. 477 : 4 Bro. C.C. 421, referred to "this maxim which I take to be universal that whenever persons agree concerning any particular subject, that in a Court of Equity, as against the party himself, and any claiming under him, voluntarily or with notice, raises a trust." But in the present case part of the plaintiffs' difficulty is that by Section 54 of the Transfer of Property Act a contract for the sale of immovable property "does not of itself create any interest in or charge on such property" according to the law of India. 'It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Official Assignee, who was also liquidator of the plaintiff Company, came subsequently to the conclusion that the right in suit was vested in the Company, and was willing that in place of the insolvent the name of the Company should be substituted on the record for the purposes of the appeal to England; but on April 2, 1928, the Court, decided to make a different order, and the Official Assignee and not the Company was brought on the record in the place of Moolla. That the Company, in providing the funds for contesting the appeal thereafter were acting on the strength of the proposal that this should be without prejudice to the ultimate decision of the question as between the Company and the Official Assignee, is, their Lordships think, the only reasonable inference.
25. The plaintiff Company, having omitted, doubtless for good reason, to make any claim against the Official Assignee of Moolla's estate for specific performance of the contract of December 22, 1920,' their Lordships are of opinion that the Division Bench of the Rangoon High Court rightly dismissed the suit. They will humbly advise His Majesty that this appeal should be dismissed with costs. X X X X Extracts X X X X X X X X Extracts X X X X
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