B.N. Sapru, J.
1. This is a defendant's appeal arising out of a suit for ejectment, arrears of rent and damages. The plaintiff's case is that plaintiff No. 1. Lachhman Singh and his sons Ramesh Chandra and Suresh Chandra form a joint Hindu family which is governed by a Mitakshara Law and the plaintiff No. 1 was the manager of the family. According to the plaintiffs they filed a suit for the partition of the joint family ancestral property including house No. 491, Faithfulganj Kanpur, Cantt. impleading defendants Nos. 4 to 6 namely Badri Prasad, Chhedi Lal and Babu lal sons of Hulasi as defendants. The suit had to be filed against defendants Nos. 4 to 6 as they were in actual possession of the joint family property including house No. 491. Faithfulganj, Kanpur, Cantonment and wera benefited from the rental income derived therefrom. The suit was decreed and the plaintiffs obtained formal possession through court on 11-12-1962. It was stated in the plaint that the half share in house No. 491, Faithfulganj, Kanpur, Cantonment, tell to the share of the plaintiffs. In this house defendants Nos. 1, 2 and 3 were tenants at the rate of Rs. 4/- per month. It is further stated that after the decree the defendants Nos. 1 and 2 agreed to continue as tenants and pay monthly rent to the plaintiffs.
2. The plaintiffs further pleaded that defendants Nos. 1 and 2 colluded with defendant No. 3 who was their neighbour and friend, and despite service of notice on them to pay rent refused to pay the same and they continued being tenants of the plaintiffs.
3. According to the plaintiffs the tenancy of the defendants was terminated by a notice dated 27-9-1963. It was further stated that the defendants were liable to pay rent to the plaintiffs from 11-12-1962 on which data the plaintiffs got exclusive possession up to 3-12-1963, the date on which their tenancy was terminated and thereafter they were liable to pay damages at the same rate. It was finally stated that the defendants Nos. 1 and 2 alleged that they have paid rent to defendant No. 3 and claimed to be his ten ants. A statement was made in the plaint that defendant No. 3 had been impleaded as party to the suit in order to avoid any technical defects and to set all controversy at rest. A statement was also made that defendants Nos. 4 to 6 were the previous landlords and co-owners of house No. 491, Faithfulganj, Cantonment, Kanpur half of which fell to their share and was possessed by them. No relief was claimed against them.
4. Defendants Nos. 4 to 6 supported the claim of the plaintiffs.
5. Defendant No. 3, Devi Prasad who is the appellant in this appeal, contested the suit. It was pleaded by him that the plaintiff and the answering defendants descend from a common ancestor, Gulal, A pedigree was set up. It was stated that the father of the plaintiffs Sri Puran had died, when Lachhman Singh had not been bora and Hulasi the brother of Puran had brought up Lachhman Singh and incurred expenses for his maintenance and education. It was stated that Hulasi was in straightened circumstances and required money for the basic necessities ot the family and had incurred debts.
6. It was also stated that Hulasi was also looking after and meeting the expenses of food, clothing and education of Lachhman. Badri, Chhedi and Babu Lal, who are his sons and nephews. Hulasi sold house No. 491 to the father of the defendant No. 3, for a consideration of Rs. 500/- which were paid to him in cash. It is stated that no regular sale deed for the said sale was obtained on account of close relationship. However, a writing was executed by Hulasi and handed over - to the father of defendant No. 3 acknowledging receipt of the full consideration and promising to execute a sale deed as early as possible. It is further stated that possession was immediately delivered to the father of the plaintiff on 31st March, 1930 when the sale transaction was completed. It is further pleaded that defendants Nos. 1 and 2 and Bhaggoo the brother of defendant No. 2 were kept by the father of answering defendant No. 3 as tenants and so were the occupants of the other portion. As mentioned in the written statement the name of the father of defendant No. 3. Debi Prasad was duly entered in the Assessment Register ot the Cantonment Board, Kanpur as owner ot the property and on the death of Sri Maiku Lal his sons the answering defendant No. 3 was entered as the owner. It is also pleaded that the defendant had been paying various taxes. A submission of law was made that in view of the facts of the case the answering defendant No. 3 had become full owner and that, in any case the answering defendant's possession was protected by the doctrine ot part performance as contemplated by the Transfer of Property Act. This plea obviously meant that the possession of defendant No. 3 was protected under Section 53-A of the Transfer of Property Act. It is also pleaded that, in any event, the suit was barred by adverse possession as the defendant's title had become mature by reason of being in possession of the property for more than twelve years.
7. Another plea that was raised was that the suit for partition was bad in law, inasmuch as none of the parties to the suit were in actual possession of the property sought to be partitioned, and the decree was void. A further defence was that defendants Nos. 1 and 2 had been regularly paying rent to the defendant appellant for more than 12 years to the knowledge of tbe plaintiff, and to the knowledge of defendants Nos. 4 to 6 who have kept silent over the matter and as such the suit was barred by the principles of estoppel and acquiescence.
8. Defendants Nos. 1 and 2 supported the case of defendant appellant No. 3 as they pleaded that they were his tenant. The court held that the plaintiffs had become owners of the house in suit by vitrue of the decree in suit No. 1128 of 1957. and they got possession of the permises in suit from the court amin by Ex. 1. It was further found that defendant No. 3 was not the owner and further that he had not acquired rights by adverse possession.
9. The trial Court also found that defendant appellant No. 3 was not protected by the provisions of Section 53-A of the Transfer of Property Act. It was also found that the suit was not barred by the principles of acquiescence and estoppel. The further finding of the trial court was that defendants Nos. 1 and 2 were tenants of the premises over which the plaintiffs had obtained possession through court by decree in the partition suit referred to earlier. It was also found that defendants Nos. 1 and 2 were in arrears of rent and were also liable to pay pendente lite and future damages. The suit was, therefore, decreed for ejectment against defendants Nos. 1 and 2 and also for Rs. 55/- as arrears of rent together with pendente lite and future interest at the rate of Rs. 4/- per month.
10. An appeal was filed on behalf of defendants Nos. 2 and 3. The lower appellate court found that house No. 491, Faithfulganj. Kanpur, belonged to Pitamber who was the father of Hulasi and Pooran. and that Hulasi had an equal share in the house. It was further found that the partition suit had been made and that the plaintiffs had obtained possession over the premises in suit through court on 11th December, 1962 and, as such the property in suit had come to belong to tbe plaintiffs. On the basis of the decree and the formal possession in consequence ot the decree the plaintiffs were held to be in possession since 11-12-1962 when the decree was executed. It was noted that the possession was constructive as the house was in the occupation of defendants Nos. 1 and 2. The trial Court also found that when Hulasi executed the document purporting to transfer the property to the father of defendant No. 3, house No. 491 had not been partitioned and, therefore, at the most Hulasi could have transferred only his unpartitioned half share in the aforesaid house. It has been further found by the lower appellate court that there was no sale deed on record as the document relied upon by defendant-appellant No. 3 was only a receipt for money paid by him. It was found that no title could be claimed on its basis.
11. As regards the plea of adverse possession the lower appellate court has found that the plaintiffs were not the transferors; nor were they claiming title under Hulasi and consequently, it held that no benefit of protection could be claimed by defendant No. 3 in view of the provisions of Section 53-A of the Transfer of Property Act.
12. In this connection, the learned Judge hearing the appeal referred to the case of Bhupal Chandra v. Jagad Bhushan : AIR1943Cal344 . In that case a transfer had been made by a widow and the step daughter had filed a suit. It was held that the step daughter and the transferee from her could not be said to be a person claiming under the witlow and, therefore, the transferee from the widow was not entitled to the protection under Section 53-A of the Transfer of Property Act.
13. As regards the plea of adverse possession it was found that the suit was not barred, though the plaintiffs could not be said to have been in possession of the house within twelve years of the institution of the suit. It was, however, found that defendants Nos. 1 and 2 should be taken to have been in occupation of the house on behalf of defendants Nos. 4 to 6 and then on behalf of the plaintiffs, as alleged by the plaintiffs.
14. The lower appellate court has noted that tax was paid by defendant No. 3 to the Cantonment Board, but the lower appellate court has not attached any particular significance to it holding that it must be deemed to have been paid on behalf of the rightful owner and did not indicate possession of defendant No. 3. The lower appellate court, therefore, recorded a finding that the house belonged to the plaintiff and defendants Nos. 1 and 2 should be taken to be the tenants. It was further held that even if defendants Nos. 1 and 2 were taken to be tenants of the house in suit the plaintiffs were entitled to succeed on the basis of their title.
15. In this second appeal it is conceded as it had to be conceded, that the document executed by Hulasi in favour of the father of defendant appellant Devi Prasad, could not operate as a sale deed being an unregistered document. It was also not admissible in evidence except for certain collateral purposes.
16. The document was executed some time in the year 1930 by Hulasi and the defendant-appellant Devi Prasad's father was put in possession thereunder. A sale consideration had been paid by the father of Devi Prasad to Hulasi.
17. The document can be looked into not as a sale deed, but in order to determine the nature of the possession of the defendant appellant's father and then of the possession of Devi Prasad in the half share of house No. 491 Faithfulgani, Kanpur,
18. The lower appellate court has held that defendant-appellant Devi Prasad could not get the benefit of Section 53-A of the Transfer of Property Act because the plaintiffs were not claiming under Hulasi, the executant of the document in question. They were claiming, according to the lower appellate court under a partition decree.
19. In the written statement filed on behalf of Devi Prasad it was pleaded in paragraphs 16 and 17 as follows:
'That the answering defendant, therefore, placed confidence in the plaintiff's father and uncle. The father of plaintiff Sri Pooran, had died when Lachman Singh had not even been borne and Hulasi the brother of Sri Pooran brought up Lachman Singh and incurred all expenses of his nourishment and education. Sri Hulasi was himself in straitened circumstances and he could not make both the ends meet since bis family was also large and the only source of income was cultivation. Sri Hulasi had, therefore, to incur debts to carry on the bare necessities of the family and for the payment of the same, as well as to meet the expenses of fooding, clothing and education of Shri Lachhman and Badri, Chhedi and Babu Lal his sons and nephews, Hulasi sold House No. 491 to the father of the answering defendant for a consideration of Rs. 500/-which were paid to him in cash. No regular sale deed for tbe said sale was obtained on account of close relationship. However, a writing was executed by Hulasi and handed over to the father of answering defendant acknowledging the receipt of the full consideration and promising to execute sale deed in his favour as early as possible. The possession was immediately delivered to plaintiffs' father on 31st March, 1930 when the sale transaction was completed.
17. That the defendants Nos. 1 and 2 and Bhaggoo brother of the defendant No. 2 were kept by the answering defendant's father as tenants and so were the occupants of the other portion, Sri Ram who was tenant at Rs. 2/- per month. The name of the defendant No. 3, Sri Debi Prasad's father was duly entered in the Assessment Register of the Cantonment Board, Kanpur as owner of the said property and on the death of Sri Maiku Lal his sons, the answering defendant was entered as the owner. The defendant has all along been paying the House and Conservancy Taxes' about the property in dispute and collecting the rent from the tenants. As already stated at the time of sale Sri Hulasi had given a writing to the answering defendant's father acknowledging the receipt of the full consideration for the sale of the house to the answering defendant's father and promising to execute a sale deed as early as possible. But the sale deed was not executed as the parties reposed confidence in each other and did not attach much importance to secure a written deed of sale.'
20. The trial court did not frame any issue as to whether the transaction entered into by Hulasi was for the benefit of his nephew Lachhman Singh or not. The plaintiff did not say in so many words that Hulasi had acted as the manager of the joint Hindu family and for legal necessity when he entered into the transaction in question with the father of defendant appellant Devi Prasad. However from a reading of Paragraphs 16 and 17 ot the written statement it is clear that it was being pleaded on behalf of defendant appellant Devi Prasad that Hulasi had entered into the transaction as manager of the family and for legal necessity. This aspect of the matter has not been examined by either the trial court or by the lower appellate Court.
21. In the evidence on behalf of the defendant the averments made in paragraphs 16 and 17 have been supported. However, the court has not examined this aspect of the matter at all.
22. In the case of Raja Sagi Padmanbhar-jai v. Sagi Laxmi Kumar Raji : AIR1967AP237 , a Full Bench of the Andhra Pradesh High Court has held that a transferee from a Hindu father can get the benefit of Section 53-A when a suit for possession is filed by the sons of the transferor who were minors when the transaction was entered into, if the father had executed the document for the benefit of the family. In the circumstances it was held that the father had executed the transfer on behalf of his sons as Karta.
23. A Full Bench of the Andhra Pradesh High Court was constituted, as a contrary view had been taken by an earlier Division Bench decision of the Madras High Court. Before the Full Bench it was argued that the earlier decision of the Andhra Pradesh High Court which was in the case of Yeditha Satyanarayanamurty v. Tadi Subrahmanyam : AIR1959AP534 required reconsideration in view of the decision of the Privy Council in the case of Subrahmanyan v. Subba Rao . From the Privy Council case the Judges hearing the Full Bench case quoted the following passage (at p. 242 of AIR 1967 (Andh Pra)):
'Their Lordships entertain no doubt that it was within the powers of the mother as 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 53-A, 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.'
'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 Bibee v. Dharmodas Ghose, (1903) 30 Ind App 114 (PC) a minor cannot be a person who contracts. It is clear, that it 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 53-A the respondent or his mother ?
24. The position of a guardian under the Hindu law was considered by their Lordships' Board in Hunooman Persaud Ponday v. Mt. Babooee Munraj Munweree, (1854-57) 6 Moo Ind App 393 (PC) and the following passage is to be found at page 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 and 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 him 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. Tf 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. It 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 53-A. 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.'
25. After reciting the aforesaid paragraphs in the judgment of the Privy Council the Full Bench noted that the said case had been followed in certain other cases which are referred to in the body of the judgment of the Andhra Pradesh High Court.
26. The lower appellate court, as noticed earlier, has not gone into this aspect ot the matter either, nor did the trial court go into the matter. This happened because no issue was framed in this regard.
27. The lower appellate court's view that the plaintiffs who were claiming under a de-cree and, therefore, they could not be treated as claiming under the transferee, cannot be accepted as Hulasi had entered into a transaction which though unregistered, was followed by delivery of possession to the father of Debi Prasad defendant appellant.
28. fn the light of the above discussion, it the transaction had been entered into by Hulasi for the benefit of the family, which he represented as manager, the defendant appellant Devi Prasad would be entitled to plead that his possession was protected by the provisions of Section 53-A of the Transfer of Property Act
29. A plea had been taken in paragraphs 16 and 17 of the written statement which should have led the trial court to frame an issue as to whether the transaction entered into by Hulasi was for the benefit of the family consisting of himself and his nephews, This was not done. As no proper issue was framed, both the parties did not lead evidence on this question. An act ot the court should not prejudice either party. In the circumstances, there is no option left but to set aside the decrees of the courts below and remand the matter to the trial court to decide it afresh after permitting the parties to clarify their pleadings and leading such evidence as they desire to lead.
30. As regards the question of adverse possession no decision is being given as the finding on the question as to whether Devi Prasad was entitled to plead that his possession was protected under Section 53-A of the Transfer of Property Act, will have an effect on the question of adverse possession.
31. In the result, the appeal is allowed, the decrees of the courts below are set aside. The case is remanded to the trial court to decide it afresh in accordance with law in the light of the observations made in this judgment. Costs will abide the ultimate decision in the suit.