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Raja Sagi Padmanbharaju Vs. Sagi Lakshmi Kumara Raju and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 687 of 1960
Judge
Reported inAIR1967AP237
ActsTransfer of Property Act, 1882 - Sections 53-A
AppellantRaja Sagi Padmanbharaju
RespondentSagi Lakshmi Kumara Raju and ors.
Appellant AdvocateM. Krishna Rao and ;S.C. Venkatapathi Raju, Advs.
Respondent AdvocateD. Narsaraju, ;Y. Suryanarayana and ;M. Venkata Rao, Advs.
Excerpt:
family - doctrine of part performance - section 53-a of transfer of property act, 1882 - contract of sale entered into by karta - transferee had paid consideration for sale and had been let into possession - whether possession of transferee protected under section 53-a of act - transferee who had performed his part of contract and taken possession entitled to rely on doctrine of part performance as enacted in section 53-a. - - (6) on the other hand, the stand taken by the ist defendant was that the ancestral properties including the family house were divided between the three brothers in the year 1933; that from that time the family house was being enjoyed in three distinct shares; (14) even at the outset, we should like to make it absolutely clear that in answering the question.....basi reddy, j. (1) the question that has been referred to the full bench is : 'whether the decision in satyanarayanamurthi v. subrahmanyam, : air1959ap534 requires reconsideration, in view of the decision of the privy council in subrahmanyam v. subba rao, air 1948 pc 95.'for the sake of convenience, we will hereafter refer to the former as satyanarayanamurthi's case : air1959ap534 and the latter as subrahmanyam's case air 1948 pc 95. satyanarayanamurthi's case : air1959ap534 was decided by a divisional bench of this court, composed of chandra reddy, c. j. and mohammed ahmed ansari, j. (2) the answer to the question turns upon the true construction of section 53a of the transfer of property act (hereinafter referred to as 'the act') and in particular, of the expression 'by writing signed.......
Judgment:

Basi Reddy, J.

(1) The question that has been referred to the Full Bench is :

'Whether the decision in Satyanarayanamurthi v. Subrahmanyam, : AIR1959AP534 requires reconsideration, in view of the decision of the Privy Council in Subrahmanyam v. Subba Rao, AIR 1948 PC 95.'

For the sake of convenience, we will hereafter refer to the former as Satyanarayanamurthi's case : AIR1959AP534 and the latter as Subrahmanyam's case AIR 1948 PC 95. Satyanarayanamurthi's case : AIR1959AP534 was decided by a Divisional Bench of this Court, composed of Chandra Reddy, C. J. and Mohammed Ahmed Ansari, J.

(2) The answer to the question turns upon the true construction of section 53A of the Transfer of Property Act (hereinafter referred to as 'the Act') and in particular, of the expression 'by writing signed.. on his behalf', occurring in the opening clause of the section. That section is in the following terms:

'53-A. Part Performance--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,and to transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or where there is a instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contact:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.'

(3) This section has been described by the Judicial Committee of the Privy Council as ' a partial importation into India of the English equitable doctrine of part performance.' The principle on which the doctrine rests is that 'if a man have made a bargain with another, and allowed that other to act upon it, he may have created a equity against himself which he cannot resist by setting up the want of a formality in the evidence 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 anyone who claims through him. This doctrine has been enacted in section 53A of the Act subject to two conditions, namely, that the contract must be in writing, and the right is available only as a defence: it is held and not a sword. The effect of the section is to relax the strict provisions of the Registration and transfer of Property Acts in order to allow the defence of part performance to be established.

(4) Now, our answer to the question refered to the Full Bench is: 'Yes; both on principle and on authority the decision in Satyanarayanamurthi's case : AIR1959AP534 does require reconsideration'. Before we give our reasons, it is necessary to state briefly how and why this reference came to be made.

(5) One Sagi Lakshmi Kumara Raju instituted a suit (O. S. No. 267 of 1956) in the District Munsif's Court, Visakhapatnam, for partition of a house shown in the plaint schedule into seven equal shares and for allotment of one such share to him. Seven persons were impleaded a defendants to the suit. Of these the 2nd defendant is the father and defendants 3 to 7 are the brothers of the plaintiff, while the 1st defendant is his paternal uncle, that is to say, the brothers of the plaintiff, while the 1st defendant is his paternal uncle, that is to say, the brother of the 2nd defendant. In the suit the plaintiff and defendants 2 to 7 sailed together. Their case was that in the year 1948 defendants to the suit. Of these the 2nd defendant is the father and defendants 3 to 7 are the brothers of the plaintiff, while the 1st defendant is his paternal uncle, that is to say, the brother of the 2nd defendant. In the suit the plaintiff and defendants 2 to 7 sailed to gather. Their case was that in the year 1948 defendants 1 and 2 and their eldest brother by name Sagi Chandrasekhara Sanyasi Raju partitioned their ancestral properties. In that partition the family house was divided into three shares and the plaint schedule property that time onwards it was in the possession and enjoyment of the plaintiff and defendants 2 to 7 till March 1949 when the Ist defendant forcibily occupied it. Thereupon the 2nd defendant filed a criminal case against the Ist defendant and others and on 5-12-1949 the 2nd defendant was made to execute Ex. B-1, an agreement for the sale of the suit property in favour of the Ist defendant for a low prie. The said agreement of sale, however, was not for any legal necessity or for the benefit of the family, and as such it was not binding either on the plaintiff or on defendants 3 to 7. The Ist defendant was in unlawful possession of the suit house.

(6) On the other hand, the stand taken by the Ist defendant was that the ancestral properties including the family house were divided between the three brothers in the year 1933; that from that time the family house was being enjoyed in three distinct shares; that the eldest brothers built a house in Kurapalli and removed himself to that place even in 1933; that the 2nd defendant also wanted to build a house for himself at Kurupalli and so he purchased a site and started a construction there in 1933 itself; that as the 2nd defendant had no children by then and the family house was in a dilapidated condition, he agreed to sell his portion of the house to the 1st defendant for Rs. 800/- and received an advance of Rs. 50/-; that since then the Ist defendant has been in possession of that portion of the house; that the 2nd defendant had no children by then and the family house was in a dilapidated condition, he agreed to sell his portion of the house to the 1st defendant for Rs. 800/- and received an advance of Rs. 50/-; that since then the Ist defendant has been in possession of that portion of the house; that the 2nd defendant was living with his eldest brother till March 1942, when he removed himself with his family to the new house at Kurapalli; that subsequently on account of misunderstandings between him and the 2nd defendant, the latter filed a criminal complaint against him and others; that the matter was ultimately compromised on the advice of elders; that it was then settled that in furtherance of the agreement in 1933, the 2nd defendant should execute the necessary conveyance of the suit property in his favour for an enhanced price of Rs. 2000/-; that out of that, Rs. 300 inclusive of Rs. 50 already paid, was paid by him to the 2nd defendant; that a promissory note was executed for the balance of Rs. 1700/- and the amount was subsequently realised by the 2nd defendant by filing a suit. It was the further case of the Ist defendant that the 2nd defendant had executed the agreement of sale Ex. B-1 as the manager of his branch of the family and of his own free will and it was not true that any undue influence or coercion had been used. It was also not true that the agreement of swale was not for legal necessity or for the benefit of the family. He further contended that as the 2nd defendant had executed the agreement of sale Ex. B-1 on behalf of the joint family and put him in possession of the suit property, he is entitled to resist the suit, relyin on the doctrine of part performance under Section 53A of the Act. The further contention of the Ist defendant was that as he has been in possession and enjoyment of the suit property for over the statutory period to the knowledge of the plaintiff and defendants 2 to 7, he had acquired title to the suit property by adverse possession. He also contended that the suit was not in time.

(7) Several issues were framed by the trial Court, our of which the material ones were the following:

(a) 'Whether the Ist defendant has acquired title to the suit property by adverse possession?'

(b) 'Whether the agreement of sale dated 5-12-1949, Ex. B-1, is valid and binding on the plaintiff and on defendants 3 to 7?'

(c) 'Whether the Ist defenda is entitled to resist the suit under Section 53A of the Transfer of Property Act?'

(8) On a consideration of the entire evidence, oral and documentary, the trial Court recorded that following findings on the aforesaid issues:

(a) On the question of adverse possession, the learned District Munsif found that the Ist defendant had been in exclusive possession of the suit property even prior to 1942 . As the suit was filed on 31-7-1956, the Ist defendant had perfected his title by adverse possession.

(b) On the issue whether the sale of the suit property by the 2nd defendant was for legal necessity or for the benefit of the family the District Munsif found that in all the circumstances of the case the sale was for the benefit of the family and as such it was valid and binding on the plaintiff and on defendants 3 to 7.

(c) As to whether the Ist defendant could rely on the doctrine of part performance as embodied in S. 53-A of the Act, the District Munsif found that inasmuch as the 2nd defendant had executed the agreement of sale on behalf of his branch of his branch of the family as family manager and the sale was for the benefit of the family, and the 2nd defendant had put the Ist defendant in possession of the property and the latter had performed his part of the contract, he (the Ist defendant ) could rely on the doctrine of part performance by way of defence to the action brought by the plaintiff. Upon those findings, the District Munsif dismissed the suit.

(9) on appeal by the plaintiff, the Additional District Judge, Visakhapatnam,. who heard the appeal A. S. No. 101 of 1958, framed only the following two points for determination:

1. 'Whether the suit was filed in time and whether the Ist defendant perfected his title to the suit property by adverse possession?'

2. 'Whether the Ist defendant can invoke the provisions of Section 53A of the Transfer of Property Act?'

On the first point, the learned Judge held that the plaintiff's suit was in time and that the Ist defendant had not perfected his title to the suit property as against the plaintiff and defendants 3 to 7.

(10) As regards the second point, this is how the learned Additional District Judge dealt with it in Paragraph 8 of his judgment:

'Ex. B-1 dated 5-12-49, the unregistered agreement of sale, was executed in favour of the Ist defendant by the 2nd defendant 3 to 7 are parties to the same. In the decision : AIR1959AP534 , it is held by the High Court of Andhra Pradesh, that Section 53A of the Transfer of Property Act precludes a transferor from asserting his title in respect of the property transferred by him and the doctrine laid down is based on the rule of estoppel, and hence the disability attached to a contracting party and not to any other person; that it cannot be applied against a member of a joint Hindu family who has not agreed to transfer the property by writing signed by him or on his behalf:: that in order to attract Section 53A, it is essential that the contract must be signed by him or expressly on his behalf; and that the section cannot come into play where the writing is deemed to have been signed on his behalf Following the above decision, I hold that the Ist defendant cannot invoke the provisions of Section 53A of the Transfer of Property Act by way of defence against the plaintiff who was not a contracting party. I find the point accordingly against the Ist defendant.'

(11) In that view, the learned Judge allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit.

(12) Against the judgment and decree of the first appellate Court, the Ist defendant preferred a second appeal to this Cour -- Second Appeal No. 687 of 1960. It came up for hearing in the first instance before Manohar Pershad J., (as he then was). Before the learned Judge it was contended on behalf of the Ist defendant that as the lower appellate Court had ruled but the applicability of Section 53A of the Act without giving any finding on the crucial point whether the agreement of sale antered into by the 2nd defendant as the Karta of the joint Hindu family consisting of himself and his sons, was binding on the sons, a finding should be called for on that point. That request was, however, opposed by the counsel for the plaintiff on the ground that inasmuch as in Satyanarayanamurthi's case : AIR1959AP534 a Division Bench of this Court had held that the provisions of Section 53A of the Act were applicable only to one who is a party to the agreement in the sense that he has himself signed the agreement or has expressly authorised some one to sigh on his behalf, it was unnecessary to call for a finding as to the binding nature of the transaction, as admittedly in that that case the plaintiff had not signed the agreement or has expressly authorised some the agreement or has expressly authorised his father, the 2nd defendant, to sign on his behalf. The learned Advocate appearing for the Ist defendant then canvassed before the learned Judge the correctness of the Bench Decision, and in support of his contention relied on a Division Bench ruling of the Bombay High Court in Labhchand v. Sharifabi, : AIR1961Bom215 , which had disagreed with the view taken by the Division Bench of this Court with regard to Section 53A of the Act. Thereupon the learned Judge directed the second appeal to be posted before a Division Bench in view of the importance of the question involved.

(13) When the matter came up before a Division Bench consisting of Satyanarayan Raju J. (as he then was) and Venkatesam, J., they referred for determination by a Full Bench the question whether the decision in Satyanarayanamurthi's case, : AIR1959AP534 requires reconsideration in view of the decision of the Privy Council in Subrahmanyam's case. This is how this matter has come before us.

(14) Even at the outset, we should like to make it absolutely clear that in answering the question referred to us, we are assuming that in the present case the contract entered into by the father as the Karta of the joint Hindu family consisting of himself and his minor sons, is binding upon the sons as being for legal necessity or for the benefit of the estate. We are proceeding on that assumption because in Subrahmanyam's case AIR 1948 PC 95, in the light of which we have to consider the correctness of the view expressed by the Division Bench of this Court in Satyanarayanamurthi's case, : AIR1959AP534 , the Judicial Committee proceeded to consider the question of law as to the true construction of Section 53A of the Act on the footing that in that case the contract entered into by the mother as guardian of the minor, was binding on the minor.

(15) We now turn to Satyanarayanamurthi's case : AIR1959AP534 , to see whether Section 53A of the Act has been correctly construed there by the Division Bench. The material facts in that case were the following. The three plaintiffs and defendants 2 and 3 were the sons of the Ist defendant and all of them constituted a joint Hindu family. On 2-11-1934 an agreement of sale in respect of certain lands belonging to the family was executed in favour of defendants 4 and 5 by defendants 1 to 3 and plaintiffs 2 and 3 the latter two being minors by their father and guardian, the 1st defendant. The document was not signed by the Ist plaintiff. In part performance of the contract, defendant 4 and 5 were put in possession of the lands. Sometime thereafter, plaintiffs 1 to 3 instituted a suit for partition of the property which had been transferred to defendants 4 and 5 into six equal shares and for possession of their shares after declaring that the agreement of sale dated 2-11-1934 in favour of defendant 4 and 5 did not bind the plaintiffs. The suit was dismissed by the trial Court on the view that Section 53A53A of the Act debarred the plaintiffs from asserting any title toe the property in question. On appeal, the District Judge decreed the suit as regards the share of the Ist plaintiff, while affirming the judgment of the trial Court with regard to plaintiff 2 and 3, as in his view Section 53A was no impediment in the way of the Ist plaintiff filing a suit for partition and for recovery of his share of the property as he was not a party to the contract of sale.

(16) Against that judgment, a second appeal was preferred by defendants 4 and 5 which was heard by a Bench consisting of Chandra Reddy, C. J., and Mohammed Ahmed Ansari J.,.On behalf of the appellants it was urged that Section 53A of the Act was a bar even to the Ist plaintiff's suing for recovery of the property since he was a member of the joint family on whose behalf the Ist defendant sale. Chandra Reddy, C. J., speaking for the Bench, readily recognized the legal position that he manager of a joint Hindu family is competent make a binding contract on behalf of the family and in so doing it is not essential that he should describe himself as the manager, provided that he was the manager at the contents of the document and the surrounding circumstances that he had acted in that capacity and in such a case he would be deemed to have signed the document on behalf of the family. The learned Chief Justice was, however, of the view that there was no scope for importing notions of Hindu Law whilst interpreting the provisions of Section 53A of the Act. After quoting the section, the learned Chief Justice stated the legal position thus:

'It is seen that the equitable doctrine of part performance embodied in Section 53A is applicable only where a person having contracted to transfer property by writing signed by him or on his behalf and put the vendee in possession thereof, wants to recover the property taking advantage of want of formality in the evidence. In other words, this section precludes a transferor from asserting his title in respect of property transferred by him when the conditions contemplated by the section are fulfilled. It is based on the rule of estoppel, and hence the disability attaches to a contracting party and not to any other person. This is available only to a defendant to protect his possession and it does not create any legal title in him. To put it differently, it can be used only to a defendant to protect his possession and it does not create any legal title in him. To put it differently, it can be used only as a shield and not as a weapon of attack. That being so, it could not be applied against a member of a joint Hindu family who has not agreed to transfer the property by writing signed by him or on his behalf. It is true that an agreement of sale made by the manager of the family would bind all the persons provided it is for the benefit of the family and would affect the interests of each of them, as under Hindu law, the manager is vested with authority to represent the family and to do all acts on its behalf, so long as they are not detrimental to its behalf, so long as they are not detrimental to its interests. But those considerations are irrelevant in construing Section 53A which bars a person who has contracted to sell property by writing 'signed by him or on his behalf.'

Thus, in order to attract Section 53A, it is essential that the contract must be signed by him or expressly on his behalf. That section cannot come into play where the writing is deemed to have been signed on his behalf. That covers only two cases, namely, where the plaintiff has actually signed or where someone who has been specifically authorized has signed on his behalf. If the language was 'signed by him or on his behalf or deemed to have been signed by him', it would have been permissible to import such notions into the section. As it is, the signature must be by the contracting party or by some on his 'behalf.'

(17) On that reasoning the learned Chief Justice repelled the contention advanced on behalf of the transferees that in the circumstances of the case, they were entitled to call in aid Section 53A of the Act even as against the Ist plaintiff.

(18) It seems to us rather remarkable that in reaching to above conclusion, the learned Chief Justice made no reference whatever to the authoritative pronounce of the Privy Council in Subrahmanyam's case, AIR 1948 PC 95, wherein their Lordships had occasion to consider the true scope and meaning of Section 53A of the Act with reference to a contract of sale entered into by the mother of a Hindu minor as his guardian and acting on his behalf. Apparently that decision was not brought to the notice of the learned Judges.

(19) We may also point out that while it is true that the section does not contain words like 'deemed to have been signed on his behalf', it is equally clear that it does not contain words like 'expressly or specifically authorized to sign on his behalf.' All that the section contemplates is that the document should be signed by the contracting party himself or by someone on his behalf.

(20) Now, in giving a somewhat narrow connotation to the words 'signed .... on his behalf' occurring in Section 53A of the Act, the learned Judges approved and adopted the view of Satyanarayana Rao, J., in Rattayya v. G. Chandrayya, AIR 1948 Mad 526. In that case that learned Judge had regarded as decisive the absence of words like 'or deemed to have been signed by the plaintiff himself or by someone on his behalf, and on the language of the section there was no scope for inferring that the father as the manager of a Hindu joint family must be deemed to have entered into the contract be deemed to have entered into the contract on behalf of himself but also on behalf of his sons.

(21) Satyanarayana Rao J., in his turn had followed the decision of a Divisions Bench of the Madras High Court consisting of Wadsworth and Patanjali Sastri, JJ., in Subrahmanyam v. Subba Rao, AIR 1944 Mad 337. In that case a mother of a Hindu minor had, on behalf of the minor, entered into a contract for sale of immovable property belonging to the minor, and in pursuance of the contract, the vendee was put in possession of the property, but the transfer was not duly completed by the execution and registration of he deed as provided for in the agreement. Taking advantage of that circumstance, the minor sued by his mother as next friend claiming possession of the property contracted to be sold. It was found as a fact that plaintiff's father had left considerable debts which could not have been discharged from the income of the family properties and that it was necessary and beneficial to sell some of them for discharging those debts. Under those circumstances, the question arose whether Section 53A of the Act was applicable to the transaction in question so as to bar the plaintiff's claim. Patanjali Sastri J., who delivered the judgment of the Bench, held that the minor plaintiff on whose behalf the contact had been executed by the guardian, was not the contracting party nor was he the transferor and hence Section 53A was not applicable. It was pointed out by the learned Judge that the bar imposed by the statute is personal to the contracting party and does not extend to persons who have not signed the contract or on whose behalf the contract has not been signed. The learned Judge's reasoning was as follows (at p. 339):

'As we have already pointed out, the plaintiff would be entitled to recover the properties in question unless the transferee's possession is protected under Section 53A. It seems to us that the section is not so framed as to afford protection against claims of persons who are not parties to the contract of transfer

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Where a guardian contracts to transfer immovable property belonging to his minor ward, can it be said that the minor is the 'transferor' within the meaning of the section The term clearly refers beck to the opening words of the section and must, we think, be taken to signify the person who 'contracts to transfer'. It must be remembered that the doctrine of part performance rests on the ground of fraud which is personal and has been held to apply only to the party who, having entered into the contract and permitted the obligee to act on the faith of it as if it were legally perfect, seek to resile from it on the ground of its imperfect execution .....................

We are accordingly of opinion that Section 53A does not operate to bar the plaintiff's claim to recover the properties in question, as he does not claim under the transferor, and cannot be affected with the fraud, or estopped by the conduct of his guardian.'

(22) This judgment was taken in appeal to the Privy Council and was reversed by the Judicial Committee in Subrahmanyam's case, AIR 1948 PC 95 referred to supra. In considering the scope and effect of Section 53A of the Act in relation to the facts of that case, their Lordships laid great stress on the rights and obligations flowing from the personal law governing the parties. This is how their Lordships dealt with the question (at p. 96):

'Their Lordships entertain no doubt that it was within the powers of the mother guardian to enter into the contract of sale of 29-11-1935, on behalf of the respondent for the purpose of discharging his father's debts, and that, if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under Hindu law. As the sale was not so completed, it is conceded by counsel for the appellants that the present appeal must fail unless the appellants are entitled to the protection afforded by Section 53A, Transfer of Property Act. They are entitled to that protection, if, but only if, the respondent comes within the words 'the transferor or any person claiming under him.' If he does, the section bars him from obtaining the relief claimed by him in the present suit and the appeal must succeed. If he does not, the order for possession made in his favour was right and the appeal must be dismissed.'

(23) Their Lordships think it is clear that the words 'the transferor' refer back to the person who 'contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf.' Counsel for the respondent rely upon Section 11 Contract Act, which is as follows:

'Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from Contracting by any law to which he is subject.'

They submit that, having regard to that section and to the decision of their Lordships' Board in Mohori Bibi v. Dharmodas Ghose, (1903) 30 Ind App 114 (PC) a minor cannot be a person who contracts. It is clear, that if the mother and guardian had taken no part at all in the transaction, the respondent could not have entered into a valid contract to sell the land in suit, to the appellants, but it is equally clear that such a contract could and did come into existence in the present case, and the question for decision is -- was the person who contracted, within the meaning of Section 53A, the respondent or his mother?

(24) The position of a guardian under the Hindu law was considered by their Lordships' Board in Hunoomanpersaud Pandey v. Mt. Babooee Munraj Kunweree, (1854-57) 6 Moo Ind App 393 (PC) and the following passage is to be found at p. 412:---

'They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others gave to her.

Thus the act of the mother guardian in entering into the contract of sale in the present case was an act done on behalf of the minor.'

Their Lordships then pointed out that in that case the contract was one which it was within the competence of the guardian to enter into on behalf of the minor so as to bind hi by it and further it was for the benefit of the minor. They then proceeded to observe as follows:

'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 S. 53A. It follows that he is debarred by the section from obtaining the relief claimed by him in the present action, which was rightly dismissed by the Subordinate Judge.'

On the authority of this ruling of the Privy Council, it will be readily seen that the view taken by the Division Bench of this Court in Satyanarayanamurthi's case : AIR1959AP534 that in considering whether the provisions of section 53A are applicable to a given case, rules of Hindu law are irrelevant and should not be imported even where the parties are Hindus, is plainly untenable. If we may say so with respect, since the entire reasoning in Satyanarayanamurthi's case : AIR1959AP534 proceeded on that fallacy, the decision in that case must be held to be erroneous. In truth, in deciding who the real contracting party is and who the real transferor is, one has necessarily to apply the personal law governing the parties. This is manifest room the reasoning adopted by the Judicial Committee in Subrahmanyam's case, AIR 1948 PC 95. It is hardly necessary to point out that the power of the manager of a joint Hindu family to alienate joint family property is analogous to that of a manager of a joint Hindu family alienate joint family property is analogous to that of a manager for a infant heir as explained by the Judicial Committee in (1854-57) 6 Moo Ind App 393 (PC).

In our opinion the true view is that where the Karta of a Joint Hindu family enters into a contract of sale and signs it himself without specifying that he was signing on behalf of the other members of the family also, and the contract is binding on the other members under the principles of Hindu law, then the Karta would have signed the contract on behalf of the other members also.

(25) In a case like the present, where the parties are Hindus and are governed by Hindu law; where the contract of sale was entered into by the father as manager of the joint family consisting of himself and his minor sons; where the sale was ex hypothesis for the benefit of the family; where the transferee had paid the consideration for the sale and had been let into possession of the property, we are clearly of opinion that he possession of the transferee is protected under section 53A of the Act, and the statutory bar imposed on the transferor comes into play.

(26) As in Subrahmanyam's case, AIR 1948 PC 95 so here, the person who can be said to have ocntracted to transfer the property, was not only the father but also all his sons, who constituted the joint family along with him. As in Subrahmanyam's case AIR 1948 PC 95 so here, the party who most aptly answers the description of 'the transferor' in the sense in which that expression is used in section 53A, is not the 2nd defendant alone, but the joint family consisting of the 2nd defendant and his sons, the plaintiff and defendants 3 to 7. That being the true legal position, the plaintiff in the instant case would be debarred from recovering possession of the property in question, and the 1st defendant as the transferee who has performed his part of the contract and has taken possession of the property, is entitled to rely on the doctrine of part performance as enacted in section 53A of the Act, by way of defence to the action.

(27) It only remains to add that several High Courts in India have taken the same view as the one we have taken as regards the scope and meaning of section 53A of the Act, and in so doing, they have applied the ratio decidendi of the decision of the Privy Council in Subrahmanyam's case, AIR 1948 PC 95. We need only mention two cases -- one of a Division Bench of the Bombay high Court in : AIR1961Bom215 and the other of a Division Bench of the Madras High Court in Govindaraju v. Vinayak, : AIR1963Mad310 . It is also worth mentioning that by the judgment in the second case, an unreported decision of Krishnaswami Nayudu, J. In Chinnayya vv. Ramamurthi, S. A. No. 2695 of 1949 (Mad), which was quoted with approval by the Division Bench of this Court in Satyanarayanamurthi's case : AIR1959AP534 was overruled. Further in the course of their judgment, the learned Judges pointed out that a narrow view of section 53A of the 'Act might lead to undesirable consequences by putting a premium on dishonesty and double-dealing. At p. 314 they made the following pertinent observation:

'The plaintiff cannot plea in the circumstances of this case that S. 53A is not applicable, as Swaminantha has not signed the document on behalf of his brothers. On the facts of this case, it was not necessary for Swaminantha to sign the document on behalf of his brothers because admittedly he is the manager of the undivided joint family and the property agreed to be sold is joint family property. If we hold that in a transaction of similar nature all the brothers should sign the document, the very purpose for which the equitable doctrine of part performance is inserted in the Transfer of Property Act would be defeated. Otherwise the very manager of the Hindu joint family after obtaining the consent of his brothers to alienate the property, may set up his own brothers later to claim the property contending that Section 53A will not apply to the transaction in question. That is not the intention of the legislature.' We agree with the learned Judges that a statutory provision designed to introduce an equitable doctrine, should not interpreted in such a way as to produce inequitable results.

(28) For the foregoing reasons we would answer the question referred to the Full Bench in the manner indicated above.

(29) This second appeal will now go before a Division Bench or a single Judge as the case may be. A finding will have to be called for from the first appellate court as to whether the contract of sale entered into by the 2nd defendant is binding upon the plaintiff.

(30) Reference answered.


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