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suresh (Advocates and Arbitrators)     09 February 2010

Whether Elephant is movable or immovable property?

Dear Friends,

Please suggest a remedy for the following case.

'A' is the license holder of a elephant. He purchased the elephant with due approval and he has got valid licence. 'A' is also having valid transit permission from the forest department to move the elephant from one place to another. Due to financial crisis, and to meet out his family emergency, 'A' has sold the elephant to 'B'. and executed one unregistered sale deed in 'B' s favour and also a gift deed. After purchasing the elephant 'B' has applied for transfer of license to the forest department by producing the unregistered Sale Deed. The forest officials rejected his application on the ground that prior approval for sale and purchase of elephant is not obtained. The forest Department also sent a showcause notice to 'A' to show under which permission 'A' has sold the elephant. After receipt of the notice, 'A' has sent a notice to 'B; stating that without the knowledge of the laws, He has sold the elephant and asked 'B' to return back the elephant. But 'B' refuses to take back his money and 'B' is not co-operating with 'A'. Now 'A' is willing to repay the sale consideration and take back the elephant. But 'B' is not willing. Please suggest me what case is to be filed against 'B' to recovery of elephant?  Thank you in advance.

regards

suresh, advocate. 



Learning

 4 Replies

V. VASUDEVAN (LEGAL COUNSEL)     09 February 2010

 If the Forest Department's objection for transfer of license is the ONLY hitch, why get into a litigation! It will be prudent to approach the Forest Department for a post-facto approval on bona fide grounds - for not getting prior approval due to lack of knowledge.

vasudevan

Daksh (Student)     09 February 2010

Dear Mr.Suresh,

You cannot  blow hot and cold in the same breath.  If in case some body has decided to purchase the elephant and paid the consideration there must have been negotiations for the same. It is incumbent for the purchaser before making the offer to make all the possible queries regarding the intended sale from the seller.  In the instant case if the requisite permission has not been taken then to my mind A is not at all fault.  Even for that reason B could have gone with NOC from A and could have got  requisite permission.  Even otherwise if peremptive permission under bonafide mistake has not been taken  what prevented the B to take it subsequently by moving a joint request albiet belatedly.  If B is still willing to fulfill its part of obligation then  A cannot do anything except pleading force majuere. I am unable to comment as the full detail of the matter are still awaited.

Best Regards

Daksh

P. Venu (Advocate)     09 February 2010

The answer is lies in the relevant provision of the particular law under which the license has been issued. The ratio is that public authorities cannot prevent person from doing what the ordinary law allows him to do unless the authorities are empowered by law through a legislative enactment. Elephant, by custom, forms the property of the owner. Transfer of Property mandates that every form of property is transferrable (see Sec 6) except those enumerated therein and those specifically provided under other laws.

N.K.Assumi (Advocate)     09 February 2010

quiet impressive and interesting questions.


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