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Labhchand Shankarlal and ors. Vs. Sharifabi - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 1039 of 1955
Judge
Reported inAIR1961Bom215; (1961)63BOMLR602
ActsTransfer of Property Act, 1882 - Sections 53A; Pollock and Mulla's Indians Contract and Specific Relief Act; Hindu Law
AppellantLabhchand Shankarlal and ors.
RespondentSharifabi
Appellant AdvocateA.V. Khare, ;J.A. Khare and ;T.B. Pendharkar, Advs.
Respondent AdvocateN.B. Chandurkar, ;J.N. Chandurkar and ;M.N. Chandurkar, Advs.
Excerpt:
.....signed the document on behalf of the two appellants labhchand and jaikisan. it is well settled that the origin of the equitable doctrine of part performance is that a person who has performed his part of the contract and obtained possession of the property should be in a position to protect his possession against the person who has transferred the property or the person who claims through him. in out opinion, failure to expressly mention in the contract that it is being signed on behalf of the plaintiffsdoes not come in the way of the defendant from raising a defence under section 53a of the act, if she can on evidence establish that the contract had been signed by the contracting party on behalf of the plaintiffs. it has been held by a division bench of this court that contract of..........the appellants, that the document on its face shows that shankarlal has signed it only on his own behalf. shankarlal does not say that he was executing the document as the karta of the joint family or that he was signing the document on his behalf as well as on behalf of his two sons labhchand and jaikisan, there is therefore nothing in the document to show that shankarlal had signed the document on behalf of the two appellants labhchand and jaikisan. according to mr. pendharkar, strict construction must be placed on the expression 'signed on his behalf' inasmuch as section 53a does not create a right but only affords a shield against dispossession. reliance is placed by mr. pendharkar on decisions reported in air 1948 mad 526 and satyanarayanamurty v. subrahmanyam : air1959ap534 ......
Judgment:

Tambe, J.

1. The question that arises for consideration in this appeal relates to the construction of the expression 'signed by him or on his behalf' occurring in the first part of Section 53A of the Transfer of Property Act, hereinafter referred to as the Act. Following facts give rise to this question. One Shankarlal, father of plaintiff-appellants 1 and 2 and husband of plaintiff No. 3, agreed to sell field S. No. 91/1, area 4 acres 15 gunthas, situate in mouza Khel Dalvi in Jalgaon taluq, district Buldana, for a consideration of Rs. 300/-, to one Sk. Yakub, husband of defendant-respondent Sharifa Bi. A draft sale-deed embodying all the terms of the contract was duly signed by Shankarlal. Sk. Yakub paid the entire consideration to Shankarlal and possession of the Held in suit was delivered by Shankarlal to Sk. Yakub at the time of the execution of the draft sale-deed, This sale-deed, however, was not registered on account of the sudden death of Shankarlal. Since 16-12-1941 Sk. Yakub and thereafter his widow Sharifabi remained in possession till 7-12-1953, the date on which Shankarlal's two sons Labhchand and Jai-kisan and his widow Sundarabai instituted this suit. The plaintiffs' case in brief was that they were not parties to the document of contract of sale, the field in suit was the ancestral property belonging to the joint family of the plaintiffs and Shankarlal, With Shankarlal as its manager, the family had extensive property and there was no legal necessity for the alienation. The plaintiffs further pleaded that the contract was without consideration and was not for the benefit of the estate. According to the plaintiffs, by virtue of the contract, Sk. Yakub did not get any right, title or interest in the field and his possession was wrongful. They therefore prayed that possession of the field be delivered to them; in the alternative, they pleaded that at least possession of 3/4ths portion of the field, that is then-share in the field, be delivered to them. The defendant denied that the field in question was the joint family property of Shankarlal and the plaintiffs. According to her, it was the exclusive property of Shankarlal. In the alternative, she pleaded that even assuming that the property was a joint family property, Shankarlal who was the karta of the-joint family had entered into the contract for legal necessity. According to her, full consideration was paid and possession had been obtained by Sk. Yakub and the terms of the contract were reduced to writing and were signed by Shankarlal on behalf of the entire family; her possession was therefore protected under Section. 53A of the Act.

2. The facts found are that the field in question was the joint family property, that the transaction of 16-12-1941 was for valuable consideration, that there was legal necessity justifying the transaction and in this sense the transaction was binding on the plaintiffs. The learned Judge of the trial Court, however, held that the defendant was not entitled to call in aid Section 53A of the Act. Sk. Yakub not having acquired any legal title to the field in question, the defendant was bound to restore possession to the plaintiffs. In taking this view the learned Judge has placed reliance on a decision reported in Rattayya v. Chandrayya AIR 1948 Mad 526. In this view of the matter, the plaintiffs' suit for possession was decreed in the trial Court. On appeal by the defendant, the decree of the trial Court has been reversed. The appellate Court has affirmed the findings of fact recorded by the trial Court. It, disagreeing with the trial Court, took the view that the defendant was entitled to call in aid Section 53A of the Act. In the opinion of the learned Judge the plaintiffs were persons covered by the expression 'any person claiming under him' (transferor) occurring in Section 53A of the Act. He therefore allowed the appeal and dismissed the plaintiffs' suit. The plaintiffs have therefore preferred this second appeal and on its being referred to a Division Bench it has come before us.

3. At the outset it must be stated that the learned counsel for the appellants conceded that the right claimed by Sundarabai, appellant No. 3, was claimed under Shankarlal and therefore she was debarred from claiming her share under Section 53A of the Act, but, according to the learned counsel, sons of Shankarlal, Labhchand and Jaikisan, cannot be said to be persons claiming under Shankarlal. The judgment and decree of the appellate Court were therefore vitiated. This contention, no doubt, is well founded. The fact found is that the field in question was the ancestral property in the hands of Shankarlal. That being the position, both Labhchand and Jaikisan had share in the property by virtue of their birth and therefore it cannot be said that the right claimed by Labhchand and Jaikisan in the field in question was claimed by them under Shankarlal. But this position in law is not of much assistance to appellants Labhchand and Jaikisan. It is still to be considered whether they are debarred from instituting this suit under the first part of Section 53A of the Act. In other words, can it be said that the contract of 16-12-1941 has been signed on their behalf by Shankarlal.

4. Mr. Chandurkar, learned counsel for the respondent, contends that on true construction ot the expression 'signed on his behalf' the transaction in question has been signed on behalf of these two appellants by Shankarlal who was the manager of the joint family inasmuch as he had authority to alienate the property in its entirety because the alienation was justified by existence of legal necessity. On the other hand, it is the contention oh Mr. Pendharkar., learned counsel for the appellants, that the document on its face shows that Shankarlal has signed it only on his own behalf. Shankarlal does not say that he was executing the document as the karta of the joint family or that he was signing the document on his behalf as well as on behalf of his two sons Labhchand and Jaikisan, There is therefore nothing in the document to show that Shankarlal had signed the document on behalf of the two appellants Labhchand and Jaikisan. According to Mr. Pendharkar, strict construction must be placed on the expression 'signed on his behalf' inasmuch as Section 53A does not create a right but only affords a shield against dispossession. Reliance is placed by Mr. Pendharkar on decisions reported in AIR 1948 Mad 526 and Satyanarayanamurty v. Subrahmanyam : AIR1959AP534 . These decisions no doubt lend support to the contention raised by Mr. Pendharkar. In AIR 1948 Mad 526, the reasons given by the learned Judge in support of Ins view are in the following terms :

'The language of Section 53A is not that the contract should be signed by him or must be deemed to have been signed on his behalf. The language is 'signed by him or on his behalf. The statute therefore requires the actual signature of somebody who is the plaintiff or by some one on his behalf. If it is merely a question of inferring that the signature was on behalf of others also, the section, in my opinion, would have no application and the language should have been signed by him or on his behalf or deemed to have been signed on his behalf. To accept the contention of the learned advocate for the respondent would be introducing into the language of the section, ignoring the express words; terms which are not there. I am therefore unable to accept the interpretation sought to be placed by the learned advocate for the respondent on Section 53A T. P. Act'.

The same reasoning has been followed by a Division Bench of the Andhra High Court in : AIR1959AP534 , With utmost respect we find it difficult to put such a strict construction on Section 53A of the Act as that would, in our opinion, defeat the intention of the Legislature. It is well settled that the origin of the equitable doctrine of part performance is that a person who has performed his part of the contract and obtained possession of the property should be in a position to protect his possession against the person who has transferred the property or the person who claims through him. This doctrine has been adopted in Indian law subject to two conditions, that the contract must be in writing and that it should be for valuable consideration. Therefore, in each case it has to be seen whether the contract that has been made was made on behalf of the person suing contrary to the terms of the contract or whether the person who is suing is claiming through the person who had made the contract. In considering a case or slightly different facts their Lordships of the Privy Council have adopted certain tests in Subrahmanyam v. Subba Rao In that case a mother of a Hindu minor had entered into a contract for sale of immovable property belonging to the minor, on his behalf, and the contract was one which was within-her competence as guardian to enter into, so as to bind the minor by it and the contract was for the benefit of the minor. In these circumstances their Lordships held that the minor, was the person who. most aptly answered the description of 'the transferor'. The reasons given by their Lordships are at page 97 of the Report:

'The learned authors (Pollock and Mulla's Indians Contract and Specific Relief Acts) are here referring to the decisions in Mohori Bibi v. Dlurrmodas. Ghose 30 Ind App 114 already cited. They continue:

'It is, however, different with regard to contracts entered into on behalf of a minor by ins-guardian or by a manager of his estate. In such a-case it has been held by the High Courts of India, in cases which arose subsequent to the governing, decision of the Privy Council, that the contract can be specifically enforced by or against the minor., if the contract is one which it is within the competence of the guardian to enter info on his behalf-so as to bind him by it, and, further, if it is for the benefit of, the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all. In the present case neither of the two conditions, mentioned is wanting, having regard to the findings in the Courts in India. It would appear therefore, that the contract in the present case was binding, upon the respondent from the time when it was executed. If the sale had been completed by a transfer, the transfer would have been a transfer of property of which the respondent, and not his mother., was the owner. If an action had been brought for Specific performance of the contract, it would have-been brought by or against the respondent and not by or against his mother.

Having regard to all the circumstances, their Lordships are of opinion that the respondent is the person who most aptly answers the description of 'the transferor' in the sense in which these words, are used in Section 53A'.

The test then that has to be applied in each case is whether the contract was binding on the person and could have been specifically enforced against him. Other test is whether if the transaction had' been completed by a duly executed and registered deed of transfer the transfer would have been binding on the person concerned. If we get the answer in the affirmative to both these questions, then the person answers the description of 'the transferor' within the meaning of Section 53A of the Act. It is now not in dispute that had Shankarlal executed a completed and registered sale-deed it would have been binding on the plaintiffs, the transfer being, for consideration and justified by existence of legal necessity. It is also not in dispute that had Md. Yakub chosen to do so he could have specifically enforced the contract against plaintiffs 1 and 2. In our opinion, therefore, plaintiffs 1 and 2 are the transferor and they answer the description of the expression 'transferor' occurring in Section 53A of the-Act. Shankarlal who had signed the contract of sale, had in law authority to enter into the contract on behalf of his minor sons, he being the karta of the family. In these circumstances, it logically follows that he had signed it on their behalf also. It is true that Shankarlal does not in terms say that ho was signing on behalf of his sons who were then minors but then lie has in terms transferred the entire field and not his share therein. He was contracting to transfer the entire field including plaintiff 1 and 2's share therein for legal necessity. He was in law authorised to do so. It necessarily follows that the contract had been signed by him on behalf of his then minor sons, plaintiffs 1 and 2, also. In out opinion, failure to expressly mention in the contract that it is being signed on behalf of the plaintiffsdoes not come in the way of the defendant from raising a defence under Section 53A of the Act, if she can on evidence establish that the contract had been signed by the contracting party on behalf of the plaintiffs. Same results are reached on looking to the case from another aspect. Question similar in nature but in a slightly different form was raisedbefore 3 Division Bench of this Court in Ranchhod v. Manubai : AIR1954Bom153 . A widow had validlyentered into a contract of sale of certain property inherited by her as limited owner; there was legal necessity justifying the contract. She however could not complete all the formalities, the proposed transferee had paid consideration and had performed his part of the contract. After the death of the widow the reversioners then brought a suit against the proposed transferee for possession of the property and the question raised was whether the reversioners were persons claiming interest in the property under the widow. In other words, the expression 'personclaiming under him' occurring in the penultimate paragraph of Section 53A of the Act fell for construction in that case. Obviously, on strict construction of the clause, reversioners could not be the personsclaiming under the widow who had entered into the contract. It is clear that the reversioners do not claim through the widow but claim through melast male holder. It has been held by a Division Bench of this Court that contract of sale validly entered into by the widow would be defeated at the hands of the reversioner if a literal construction is placed upon the words person claiming under the transferor' because under the Hindu law the estate passes to the reversioner on the death of the widow as the heir of the last male holder and not as the heir of the widow. But to place such a construction would be opposed to the principles of equity and inconsistent with the spirit of the Hindu Law because under Hindu Law, the widow's right is in the nature of a right of property and her position that of an owner and therefore if she had gone a step further and sold a part of the estate for a legal necessity the sale would have bound the reversioner and succession would open with regard to the undisposed of remainder of the estate only. Therefore it would be more reasonable to put upon those words a liberal construction and hold that the reversioners are bound by a contract of sale entered into by the widow for a legal necessity as a person claiming under her and that the purchaser from her is entitled to rely upon the provisions of the section because the reversioners, though they do not claim through the widow, are her successors-in-title of the estate after the widow's death under the Hindu Law in the sense that the extent of the estate which would devolve on them would always depend on the exercise by her of her undoubted right of disposal of the estate for a legalnecessity. In our opinion, we see no reason why liberal construction also should not be placed on the expression 'signed on his behalf' occurring in the earlier part of Section 53A of the Act. We would further say that putting liberal construction would advance the carrying out into effect the intention of the Legislature underlying the provisions of Section 53A of the Transfer of Property Act. In this view of the matter, we do not feel that any case has been made out to interfere with the decision of the lower appellate Court.

5. In result, the appeal fails and is dismissedwith costs.

6. Appeal dismissed.


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