Chandra Reddy, C.J.
1. These second appeals have been referred to a Bench by Umamaheswaram J., as an important question of law relating to the interpretation of Section 53A of the Transfer of Property Act is involved in them.
2. The facts are not in dispute and may be briefly set out in so far as they are relevant for this enquiry. The plaintiffs, three in number, and defendants 2 and 3 are the sons of the first defendant and originally they formed members of a joint Hindu family. Defendants 1 to 3, the first plaintiff and plaintiff 2 minor by his father and guardian, the first defendant, executed a simple mortgage for Rs. 4,500/- in favour of the Yeditha Lachanria. On the same day, the same persons executed another simple mortgage for a similar sum in favour of one Yeditha Sathiraju.
Sometime later, i.e., on 2nd November, 1934, agreements of sale were executed in favour of the mortgagees by defendants 1 to 3 and plaintiffs 2 and 3, the later two being minors by their father and guardian, the first defendant. It is unnecessary for us in this context to refer to the proceedings for scaling down the debts instituted by one or the other members of the family.
3. The suits giving rise to these appeals were instituted by the three plaintiffs, plaintiffs 2 and 3 being the younger brother of the first plaintiff, for partition of the A schedule properties into six equal shares, for possession of such shares and for other incidental reliefs, after declaring that the agreements dated 2nd November, 1934 in favour of the defendants would not bind the plaintiffs etc., or in the alternative, for recovery of the value of the unpaid purchase money with interest thereon.
The suits were dismissed by the Subordinate Judge in the view that Section 53A of the Transfer of Property Act prevented the plaintiffs from asserting any title to the properties in dispute. On appeal, the District Judge decreed the suits as regards the share of the first plaintiff, while confirming the judgment of the trial court in regard to plaintiffs 2 and 3 being of the opinion that Section 53A was no impediment in the way of the first plaintiff filing a suit for partition and for recovery of his share of the property. This conclusion of the District Judge is assailed in these second appeals filed by the aggrieved defendants.
4. It is urged in support of these appeals that Section 53A of the Transfer of Property Act is a bar to even to first plaintiff suing for the recovery of the property since he is a member of the joint family on whose behalf the first defendant entered into agreements of sale. The argument on behalf of the appellants is put thus. The word 'person' occurring in Section 53A of the Transfer of Property Act includes 'a joint Hindu Family' and the Manager of such a family can make binding contracts on behalf of the family and in so doing it is not essential that he should describe himself as the Manager.
Several rulings were cited to us as substantiating this proposition. It is not necessary to refer to them in detail as they only establish that the transactions entered into by a Manager on behalf of the family would bind the joint family and this result would follow even if he does not describe himself as such, provided that he was the Manager at the material time and it could be implied from the contents of the document and the surrounding circumstances that he acted in that capacity.
In such event he will be deemed to have signed the document on behalf of the family, notwithstanding that he does not purport to do so. The authority of the father to represent the family is unquestionable. We also agree that the word 'person' is comprehensive enough to include a joint family.
5. That point, however, does not arise for determination in this enquiry as the question in this case has to he answered with reference to the terms of Section 53A of the Transfer of Property Act. There is no scope for importing the principles of Hindu Law as to the binding nature of transactions entered into by the Manager of the family. It is convenient to read here Section 53A of the Transfer of Property Act. It reads :
'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 certainly.
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract,
and the 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 an 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 contract : 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.'
6. It is seen that the equitable doctrine of par; 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 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 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.'
7. 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 authorised 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 someone on his behalf.
8. There is authority for this view of ours. In Rattayya v. Chandrayya, 1948-1 Mad LJ 392 : (AIR 1948 Mad 526), it was ruled by Satyanarayana Eao J., that Section 53A of the Transfer of Property Act requires that there should be the actual signature of somebody who is the plaintiff or of some one on his behalf. In the absence of it, Section 53A could not be availed of by the defendant. The learned Judge in repelling the contention similar to the one put forward in this case, observed as follows : --
'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.'
We are in respectful agreement with the dicta laid flown by the learned Judge in that passage. The judgment of Krishnaswami Nayudu J., in V. Chin-nayya v. V. Ramamurthi, AIR 1935 NUC (Mad) 3167: (S. A. No. 2695 of 1949) is to a like effect. For these reasons, we cannot give effect to the submission made on behalf of the appellants that Section 53A affords protection against every member of the joint Hindu family, notwithstanding that he is not the contracting party.
9. It was next urged by Sri Subrahmanyam for the appellants that the first plaintiff is debarred from claiming the property, since he claims his share in the family under the Manager of the joint family. We do not think we can subscribe to this proposition. A co-parcener does not claim interest in the co-parcenary under any other co-parcener. He acquires interest in the joint family property by birth and does not claim it under his father or the Manager of the family. Nor could it be predicated that he claims the interest through the joint' family.
The joint family is a collection of the members thereof and the property of all the co-parceners constitutes the joint family property. There is, therefore no question of any individual member claiming it through the family. This argument is devoid of substance and is therefore negatived.
10. In the result, these appeals are dismissed. In our opinion these are fit cases in which the parties should be directed to bear their own costs throughout.