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Padmalabha Panda Vs. Appalanarasamma and ors. - Court Judgment

LegalCrystal Citation
Decided On
Case NumberA.F.A.D. No. 23 of 1944
Reported inAIR1952Ori143
ActsTransfer of Property Act, 1882 - Sections 53A; Code of Civil Procedure (CPC) - Order 21, Rule 63
AppellantPadmalabha Panda
RespondentAppalanarasamma and ors.
Advocates:B.K. Pal, Adv.
DispositionAppeal dismissed
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j.1. the question, involved in this appeal, is whether a plaintiff can avail himself of the benefits of the doctrine of part performance of a contract for sale as against an invasion on his rights by an attaching creditor of the transferor (promisor.) he had objected to the attachment by advancing a claim in order xxi, rule 58, civil procedure code. the claim having been rejected he brought the suit, out of which this second appeal arises.2. the appeal was heard 'ex parte', and the learned counsel, appearing on behalf of the appellant no. 1 obtained a decree for costs against them invite our attention to such authorities as could be cited by the respondent had he been represented before us.3. the facts, in short, are that the disputed properties belonged to defendants 2 to 12......

Ray, C.J.

1. The question, involved in this appeal, is whether a plaintiff can avail himself of the benefits of the doctrine of part performance of a contract for sale as against an invasion on his rights by an attaching creditor of the transferor (promisor.) He had objected to the attachment by advancing a claim in Order XXI, Rule 58, Civil Procedure Code. The claim having been rejected he brought the suit, out of which this Second Appeal arises.

2. The appeal was heard 'ex parte', and the learned Counsel, appearing on behalf of the appellant No. 1 obtained a decree for costs against them invite our attention to such authorities as could be cited by the respondent had he been represented before us.

3. The facts, in short, are that the disputed properties belonged to defendants 2 to 12. Defendant No. 1 obtained a decree for costs against them. After decree, passed on 2-9-1936, the aforesaid defendants separated amongst themselves and the disputed properties fell to the share of defendant No. 2. On 20th September 1937, the latter entered into an agreement for sale with the plaintiff with respect to the disputed properties. In this connexion, it has been found by both the Courts below, that the plaintiff got possession of the properties in part-fulfilment of the contract and that he paid the consideration money while he was all along ready and willing to perform his part of the contract. In short, under the law, he is in the situation in which he could pray in aid the doctrine of part performance, as enacted in Section 53A, Transfer of Property Act, had the transferor wanted to enforce any of his rights to the properties in a suit against him. After the unregistered agreement, defendant No. 1 executed the decree (in Execution Case No. 116/38) and brought the properties under attachment to which the plaintiff took exception unsuccessfully.

4. As I have said above, the only point for consideration is whether the plaintiff in this suit can invoke the aid of Section 53A of the Act. If one looks at the frame of the suit, he can be atonce non-suited. In para. 3 of his plaint, afterstatement of facts, he said:

'the plaintiff filed the claim petition claiming the lands 'to be his' by virtue of Section 53A of the Act, and as the plaintiff was not ready with his witnesses at the time of the hearing, the petition was dismissed for default. This suit is therefore filed to set aside the summary decision in E. A. 17/40 declaring that the right, title and interest in the schedule properties have vested in the plaintiff.'

He says:

'The plaintiff therefore prays for a decree declaring that the properties described in the schedule filed herewith belong to the plaintiff and for costs of the suit together with such other relief or reliefs as the Court may think fit in such circumstances of the case.'

5. It is apparent that mere contract to sell does not create any title to or charge upon the properties agreed to be sold (Vide Section 54, Transfer of Property Act.)

6. The more liberal view, however, may be taken of the frame of the suit, as one substantially under Order XXI, Rule 63, Code of Civil Procedure, Section 53A is reproduced for easy reference:

'Where any person contracts to transfer for consideration any immoveable 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 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, 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 on 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.'

The section, nowhere, provides that the transferee notwithstanding the part performance of the contract acquires any enforceable right except the right of specific performance of the contract as against the transferor or any person claiming under him. The only equitable relief, that is made available to him, is to disqualify the transferor or his privy from enforcing him (the transferee) and persons claiming under him any right in respect of the properties. The disqualification is more or less personal as, according to the proviso, it does not affect the rights of a transferee for consideration without notice of the contract or of the part performance thereof. The proviso, necessarily, leads to the result that the section did not vest the transferee with any substantive right under the contract which enures as against the whole world, or else that Section 54 of the Act would be nugatory. The disqualification of the transferor debars him 'from enforcing against the transferee' any of his rights to or in respect ofthe property, This indicates that the section provides for an available defence to the transferee when either the transferee or the person claiming under him seeks to enforce a right. It has been argued, in this case, on the strength of several reported decisions, that the doctrine of part performance can be prayed in aid by the transferee as a plaintiff when he wants to enforce, through some sort of defensive action, rights under the contract against an invader. Pushed to its logical conclusion, it will cover a case where a transferor commits a trespass upon the property in denial of the terms of the contract and thereby invades the transferee's right to possession delivered to him in pursuance of the contract and the transferee comes with a suit to recover possession. This would amount to say as if the section provides that the transferor as defendant shall be barred from pleading against the invalidity of the transfer. This is exactly what the section has not done. To put it the other way round, if this were permissible, it would amount to creating an enforceable right or title to immovable property by means of an unregistered contract-deed and thus to reduce to nullify the effect of Section 49, Indian Registration Act, and the other provisions that imperatively require registration of such documents as purport to create or assign a right to immoveable properties, valued more than Rs. 100/-. The section, in debarring the transferor from 'enforcing any right to property' against the transferee, does not aim at any act of the transferor out of Court, such as, taking forcible possession of the land. If that were the intention of the section the Legislature should clothe the commission of violation of the Statute with a legal sanction. The word 'enforcing', in its context, means 'enforcing in Court by a suit or proceeding.'' In this view, the section enacts a rule of estoppel against the transferor debarring him from enforcing any right in respect of the property against a transferee in disregard of the contract by which he is bound. To accede to the contention, advanced would amount to extend the rule of equity against the imperative provisions of a Statute. It is not enacted to relieve a transferee of the onerous compliance of the terms of a Statute in order to complete his title but to prevent the transferor from taking advantage of his own default or latches, which would encourage fraud. It is a well-known rule of law that no one should be allowed to profit by his own wrong. The transferor is in the wrong or in default in not carrying the contract into its ultimate end by registering the deed and the section, under construction, lays down that he shall not be allowed to rely on his own wrong to enforce right in respect of property, the subject-matter of contract. As a rule of equity, it is subject to several limitations of which one is 'equity follows the law'. Story on Equity, (3rd Eng. Edn.) p. 34:

'Where a rule either of the common or the statute law is direct and governs the case with all its circumstances on the particular point a Court of Equity is as much bound by it as a Court of Law and can as little justify a departure from it.'

7. In the case of 'PROBODH KUMAR, v. DANTMARA TEA CO. LTD.', 66 Ind App 293, a case inwhich the plaintiff based his suit on the doctrineof part performance as enacted in Section 53ATransfer of Property Act, -- it was contended:

'that notwithstanding that they had not chosento sue for specific performance of the contractof October 10, 1931, and notwithstanding thatthey had taken no steps to complete their titlesthey were nevertheless entitled under Section.53A actively to assert the rights of a proprietorin virtue of the contract of October 10, 1931 and their possession.'

Their Lordships held:

'In their Lordships' opinion the amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter, J., in the High Court that the right conferred by Section 53A is a right available only to the defendant to protect his possession. They note that this was also a view of their late distinguished collegue, Sir Dinshaw Mulla, as stated in the second edition of his treatise on the Transfer of Property Act at p. 262. The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed any other reading of it would make a serious inroad on the whole scheme of the Transfer of of Property Act.'

8. It is necessary to state here the frame of the suit in order to show whether it was an action of a defensive nature. I shall quote a passage from their Lordships' judgment, in this connexion which is at pages 296-97 :

'It is in these circumstances that the plaintiffs brought the present suit in which they seek to have it declared that the Dantmara Tea Company, Limited, and others have no right or title to the estate, and are debarred from enforcing any right to the estate, including the right to sell tea under the export quota allotted to it, or to transfer the quota rights to any person. They also seek an injunction.'

9. It appears quite plain from the above extracts that the point was raised directly at their Lordships' Bar and was negatived by their Lordships' enunciation of law, as stated above.

10. In the case of 'MADHUBAN GANDA V. BASANT KHETRI', AIR (34) 1947 Pat 424, the decision to which I was a party, it was held:

'The provisions of Section 53A do not confer any title on the transferee. They can be used only in defence, and not for attack, and, moreover, they can be used in defence only against the transferor on any other person claiming under him. Thus, where in a suit for declaration of title to and recovery of possession over certain lands comprising an occupancy holding the plaintiffs are persons claiming under the transferor as his heirs, the provisions of Section 53A can be set up in defence against them, and though the part performance may have created no title in the transferee the plaintiffs can enforce no right in respect of the property on the ground of lack of registration. The equitable basis of the doctrine is that having sold the property to the transferee, having put him in possession, then even if the transfer is void the transferor in interests of the prevention of fraud will not be heard to say so and neither will any one claiming under him.'

11. In the case of 'PIR BAKHSH v. MOHOMED TAHAR', 61 Ind App 388, it was laid down, by their Lordships of the Privy Council:

'By Section 54 of the Transfer of Property Act 1822, a transfer by sale can only be made by a registered instrument, and the contract by itself does not create only interest in or charge on the property. If the contract is still enforceable the defendant may found upon it to have the suit stayed, and by using the specific performance, obtain a title which will protect him from ejectment, but if it is no longer enforceable, its part performance will not avail him to any effect.

Section 53A, inserted in the Act of 1882 by the amending Act XX (20) of 1929, enables a defendant in certain circumstances effectively to plead possession under an unregistered contract of sale, and is thus a partial importation into India of the equitable doctrine of part performance.'

12. In the case of 'S.N. BANARJI V. KUCHWAR LIME & STONE CO. LTD.', reported in AIR(28) 1941 P C 128, their Lordships said:

'But the words of the section make it quite plainthat the section does not operate to create aform of transfer of property which is exemptedfrom registration. It creates no real right; itmerely creates right of estoppel between theproposed transferee and transferor which haveno operation against third persons not claimingunder those persons.'

13. As against the authoritative views expressed above, reliance has been placed upon a few decisions of the Indian High Courts to gain support for the proposition, sought to be propounded, that a plaintiff, in a suit of defensive nature, can invoke the aid of the section. The first one of its kind is the cast of 'EWAZ ALI v. FIRADUS JEHAN', 19 Luck 565. In this case, it was said:

'The words of the section do not warrant a conclusion that a plaintiff as such is necessarily debarred from the benefit of the rule. Where by the nature of the case as disclosed by the pleadings or otherwise it is apparent that the transferee, comes to Court to defend his possession against the invasion of it by the transferor he is entitled to invoke the aid of the equitable doctrine therein embodied.'

'The present suit under Order XXI, Rule 103, Civil Procedure Code, is of that nature being, in our opinion, practically a continuation of the proceedings before the Execution Court, wherein the transferor and his representatives succeeded in ejecting Mt. Firadus Jehan from possession which she had originally taken in pursuance of the contract of bothcases the object of the suit is to protect possession and the capacity in which the plaintiff comes to Court is, in reality, one of defence.'

This amounts to, if I may say so with respect, flying in the face of the authoritative pronouncement of the Privy Council.

14. The aforesaid decision was based mainly on the decision of 'RAM CHUNDER v. MAHARAJA KUNWAR', AIR (26) 1939 All 611. In 'this case the plaintiff, a lessee, under a deed of lease, which was duly registered but was not signed by both the lessor and the lessee in accordance with the provisions of Section 107, brought an action for injunction against the defendants, who trespassed upon the land, and demolished a part of the property. It was held that the plaintiff could support the action under Section 53A, as it was defendants, who were seeking to enforce their rights under the contract of lease and the plaintiff was only seeking to debar them from doing so and was thus merely protecting his rights, and that there was, therefore, nothing in terms of Section 53A, which disentitled the plaintiff from maintaining the suit.

15. In the case of 'MUNICIPAL BOARD, ETAH v. LALA MORADHUJ', there is just a passing observation by way of explaining 'PROMODE KUMAR DAS'S CASE', AIR (27) 1940 PC 1:66 Ind App 293 :

'Their Lordships were referring when they spoke of defendants to the particular facts of the case before them. In view of the fact of that case in which the transferor was the plaintiff he could not obviously call in aid the principle of part performance.'

16. The next case relied upon by Mr. Pal, is the Full Bench decision, in the case of Mt. SHANKRI v. MILKHA SINGH', AIR (23) 1941 Lah 407. In that case the defendants had made over the lands, in suit to the plaintiff under a written instrument of transfer. The latter, in exchange, gave the defendants an equal area of lands and discharged a debt of Rs. 200/- due to him from one of the defendants. The compulsory registerable instrument of transfer, though accompanied with delivery of possession, was not registered. The plaintiff's application, for mutation, in revenue papers, was resisted by the defendants. As a result the application was refused. The plaintiff brought a suit for declaration of his title as owner. During the pendency of the suit, his application, for mutation, was accepted by the Collector in appeal. The suit was resisted on the ground of invalidity of the transaction, for lack of registration, and consequent non-vesting of title. As Mr. Justice Beckett put it 'the applicability of the doctrine of part performance in the Punjab was the principal question involved in this case'. This was because Section 53A did not apply to the territory. In this context, the decision of this case is not a precedent for the proposition, contended for. At page 411, Column (ii) of the report, it was definitely observed that the purchaser, under an invalid transaction, as the one under consideration, cannot claim any title as owner, in the property. The passage which settles this question is:

'In England, the purchaser under a contract of sale is sometimes described as the equitable owner of the land, though only against any other party to the contract. In India, however, the law recognizes no distinction between legal and equitable estates in this sense, as was laid down by the Privy Council in 'JUTTENDRO MOHUN v. GANENDRA MOHUN', I A Sup Vol. 47; 'WEBB v. MACKPERSON', 31 Cal 57 P C and CHHATRA KUMARI DEVI v. MOHAN BIKRAM SHAH', 58 I A 279: 10 Pat 851. One thing that seems certain in the present case is that the purchaser cannot claim any title as owner in the property whether as legal or as equitable owner, Moreover as laid down in Section 54, T. P. Act, a contract for the sale of immoveable property does not, of itself, create any interest in or charge on the property.'

17. Before discussing the ratio of the decision, attention should be drawn pointedly to the observations of the Privy Council as to the unsuitability of the doctrine of part performance with all its implications and incidents in conditions prevailing in India. In the case of 'ARIFF v. JADUNATH MAJUMUDAR', (the leading case on the subject), reported in 58 Ind App 91. Lord Russel of Killowen, delivering the judgment of their Lordships of the Judicial Committee, observed that it was impossible to apply an English equitable doctrine affecting the provisions of an English statute by way of analogy to such a statute as the T. P. Act, with the result of creating without any (valid) document an interest, which the statute says can only be created by means of a registered document. This view was reaffirmed by their Lordships in the case of 'PIR BUX v. MOHAMAD TAHAR', 61 Ind App 388. I shall pay a little more attention to this last named case presently. It has, further, to be borne in mind that Lord Russel in 'ARIFF'S Case', declared that the remarks, made by Lord Shaw in the case of 'MOHAMMAD MUSA v. AGHORE KUMAR', 42 Ind App 1, which were responsible for application of the doctrine of part performance as understood in England into India, as being in the nature of 'obiter dicta. If anythingcan be said, with great respect, with any amount of certainty of the decisions of Lucknow, Allahabad and Lahore Courts, already adverted to, it is this that while purporting to give effect to Section 53A, T. P. Act, they do, in effect, make use of 'the doctrine of part performance' as the basis of an action on the analogy of the practice on the equity side in England. I have, therefore, considered it my duty, in order to set the controversy at rest, so far as this Court is concerned, to examine the genesis of the doctrine and to its very origin. This being done, when it is contrasted with the statutory expression of the doctrine in its application to India, it will be perfectly clear that Section 53A can never be availed of as founding a cause of action. Before doing so, I should dismiss the applicability of 'SHANKRI'S Case', AIR (28) 1941 Lah 407 with the observation that their Lordships of the Lahore High Court decided that the only legal position which could be recognised by Court was the one either conferred or conferable under Section 55(6)(b), T. P. Act, in view of this position, the declaration of lawfulness of the plaintiff's possession was made. I shall not, however, be understood to say that under the provisions of the Specific Relief Act, which provides the nature and scope of declaratory suits, such a declaration is permissible. I reserve my opinion for an occasion when it arises. Besides, I should focus attention on a passage in the judgment at page 413:

'It is true that the right of relying on the doctrine of part performance, when this is given by Section 53A, Transfer of Property Act, can be only used as a shield in defence and not as a weapon of attack; but this depends upon the wording of the section and application of that particular doctrine is not now in question in the present case.'

18. The learned Judges were free to deduce equitable principles analogically apart from Section 53A by the language of which they felt not bound as it was not in force in the Punjab in order to give relief to the plaintiff, who, they thought, was entitled to it in justice, equity, and good conscience. This will be clear from the following observations, made by Mr. Justice Beckett:

'There seems to be no particular reason why a person, the legality of whose possession has been denied, should wait for an action 1o be brought against him as a transferor before seeking to establish the legality of his possession even though he may have been under some misapprehension as to the full nature of his title.

*****There is another reason why I think that some form of declaratory relief should be granted in the present case. Dismissal of the suit as a whole would probably be misunderstood by the parties and if it did not actually lead, to a physical dispute over possession it would almost certainly lead to further protracted litigation.

*****If the position of the parties is made plain, it may be found possible for them to settle their difference on a proper footing. The position in this respect is not essentially different from that which arises when a reversioner sues under customary law for a declaration that an alienation is wholly void as against him.'

In short, this decision is an authority on its own facts and does not help the plaintiff's case.

19. The English doctrine of part performance took its origin in equity in order to relieve against the statutes of frauds. According to this statute, certain contracts were to be made compulsorily by a memorandum in writing signed. The fact that a contract has been partly performed does not, at all, affect the right of the defendant in an actionon the contract to set up the plea that there was no enforceable contract as there was no signed memorandum in writing as required, by statute. The operation of the statute thus encouraged fraud and in order to relieve against this feature, in equity arose the principle that a defendant, who had accepted the benefit of a part performance would not be permitted to set up the statute in defence. This equitable doctrine enabled proof of the contract to be given by parol evidence of part performance. The application of this principle was invoked mostly in cases of contracts for sale or purchase of lands or for acquisition of an interest in land. The reason for the rule by which he is precluded from taking advantage of the want of writing is where the defendant has stood by and allowed the plaintiff to fulfil his part of the contract, it would be fraudulent to set up the statute. This doctrine is confined to contracts falling within, the Court's jurisdiction to decree specific performance. In all other cases, it has been authoritatively held that part performance of a contract which is within the terms of the Act (Statute of Frauds) is not sufficient to preclude the party who has received a part performance from taking advantage of the Act.

20. The essential elements, required to establish the part performance, which will exclude the statute, are:

(i) the acts of part performance must be such as not only to be referable to a contract such as that alleged, but not to be referable to other title;

(ii) they must be such as to render it a fraud in the defendant to take advantage of the contract not being in writing;

(iii) the contract to which they refer must be such as in its own nature is enforceable by the Court;

(iv) there must be proper oral evidence on the contract which is let in by the acts of part performance.

21. The part performance, in order to take the case out of the operation of the statute must be by a person, seeking to enforce the oral agreement. The doctrine, therefore, is based upon the theory that it would be fraudulent in the case to which it applies to set up the statute and it is a general principle of equity not to permit the statute of frauds to be used by a defendant to cover a fraudulent act where he is in the position of a trustee or quasi-trustee towards the plaintiff.

22. It is very clearly discernible that in England the doctrine is invoked by the plaintiff in an action for enforcement of the contract by specific performance or otherwise. It is he who would be able to adduce parol evidence of the contract which would otherwise be in contravention of the statute by proving part performance of the contract and the defendant is debarred from setting up the statute in defence, Snell in his Book of Equity at p. 547 says:

'The doctrine of part performance is not confined to contracts for the acquisition of an interest in land. Probably it applies to all cases in which the Court would entertain an action for specific performance if the contract were in writing. But it is a purely equitable doctrine, applicable only to actions for specific performance, and, therefore, if relief by way of specific performance is not available, the acts of part performance will not enable the plaintiff to obtain damages .

The act of part performance must have been done by the plaintiff; part performance by the defendant will not take it out of the statute.'

23. It is further said by that learned author at page 549:

'The usual act of part performance is the delivery or taking of possession under the contract and that the possession however is not sufficient if it can be explained apart from the alleged contract. But possession if taken solely under and after the contract or if the possession although delivered before the contract is continued subsequently to the contract and the continuance of the possession is referable unequivocably to the contract; the possession will be an act of part performance and will take the case out of the statute.'

24. Before the enactment of Section 53A, in the case of 'MOHAMMAD MUSA V. AGHORE KUMAR', 42 Cal 801, certain observations were made by Lord Shaw of the Privy Council to the effect that when an action had taken upon an agreement which remained inchoate for want of requisite document, there might be certain resulting equities which would allow one of the parties to be charged on one of the equities. This was considered as tantamount to saying that a transaction, clothed imperfectly in legal forms, could be treated as binding on the parties and carried into further execution, as such, in equity. This was considered in India to be sufficient authority for extending the doctrine with all its implications to India, In Indian High Courts, in very many cases, the doctrine of part performance, as understood in England, was applied and the result was direct contravention of the statutory provisions of the T. P. Act. It remained for Lord Russel of Killown in the case of 'ARIFF v. JADUNATH', 58 Ind App 91 to observe that the remarks of Lord Shaw were in the nature of 'obiter dicta' and the English equitable doctrine was not applicable in India.

25. In this state of judicial pronouncements, the Legislature came forward with Section 53A. If the Legislature intended to codify English equitable doctrine without any modification, appropriatelanguage, to do so, would not have been wanting. It is clear from the language of Section 53A, that it was an incomplete adaptation of the doctrine to Indian conditions in a manner so as not to introduce any modification of the statutory provisions prescribing the mode of transfer of immovable properties by -registered instruments. It was not intended to be an exception to Section 54, T. P. Act. Had that been the intention of the Legislature, that section could have been amended suitably to give effect to it.

26. The intention of the Legislature apparently is, as it is in England, not to allow the party to the contract who has taken advantage of its part performance to challenge its validity on the ground of lack of certain formalities which if observed should have gone to make the contract of the transfer complete. It was not necessary, at any time in India, for the plaintiff, to invoke the aid of the doctrine, in order to enable him to launch an action for specific performance of a contract of a transfer of land or an interest in land. In India, such a contract need not necessarily be in writing signed or registered. On the other hand, the party receiving or acquiescing in part performance, could defraud any other party to the contract by taking recourse to the statute that forbids transfer taking effect except through registered instruments. As there is no estoppel against statute there was no bar to set up the statute. It was, therefore, thought necessary to create 'statutory bar' against the party who stood by acquiesced in or benefited himself by part performance of the other party. To codify the doctrine so as to enable the plaintiff to enforce the contract specifically against the other party who is guilty of breach of contract would be nothing but redundant and unnecessary in view of Indian statutory laws. On tile otherhand, to create such a right other than right of specific performance of the contract, as is claimed in the present case, would amount to virtual abrogation of statutory provisions which it would be then unnecessary to retain its place in the statute. If any right is created by insertion of Section 53A in favour of the transferee under the contract, it is the right to set up part performance in defence of his accrued right under the contract which, as I have already shown, was not otherwise open to him.

27. The school of thought is now taking shape favouring the view that a right can be spelt out of Section 53A supporting a case of action other than specific performance of contract, that is, such as declaring transferee's possession obtained by way of part performance of the contract as legal and valid or a declaration of right to ownership of relief of injunction against a transferor interfering with the said right owes its origin either to the notion that the English equitable doctrine of part performance has been bodily introduced into the T. P. Act or a ban on the defendant against enforcement of any property right in disregard of the contract gives rise to a corresponding right in favour of the transferee. With either of these two notions at the bottom, it is said that the language of the section does not lend support to the theory that the transferee 'within Section 53A' can use part performance only as a plea in defence. To this criticism, my simple answer is that the language used in the section should be interpreted with reference to the context in which it appears. You must read Section 53A and Section 54 together. In the absence of any language compelling to the result of either curtailing or modifying the effect of Section 54, it would be difficult to hold in favour of such a right in the transferee. At the same time, you cannot ignore the imperative language of Section 49 of the Indian Registration Act and introduction of two very significant amendments bearing upon the respective rights of the parties to a contract or transaction affecting immoveable property in the same year of 1929, namely, the proviso to Section 49 of the Indian Registration Act, and Section 27-A of the Specific Relief Act. The proviso, by way of modifying Section 49, enables a party to a contract to tender in evidence an unregistered document (otherwise compulsorily registrable) in proof of his claim for specific performance of the contract or of part performance for the purpose of the Section 53A, T. P. Act, and Section 27-A, Specific Relief Act, provides, similarly, for enabling parties to obtain specific performance in case of a part performance to lease. Considered collectively, it is clear that, that the sections, namely 53A. T. P. Act & 27-A. Specific Relief Act, & the proviso to Section 49, Indian Registration Act, all taken together, simply relieve the party, who has performed a part of the contract treated of, in either of the sections, from the effect of a statute that either prevents an unregistered or otherwise incomplete document from being adduced as evidence in support of the contract or a contract being attacked as non-existent on account of its invalidity and incompletness by or against the party who has stood by and acquiesced in the part performance. Nothing could prevent the Legislature from providing that the incomplete document can be used in evidence for enforcement of right to immoveable property while on 1he other hand it is plain that it could be used as evidence for enforcing the contract itself by an action for specific performance. In this connexion, the decision in the case of 'PIR BUX v. MOHAMAD TAHAR', 61 Ind App 388, is strikingly instructive. This decision belongs to a time when Section 53A had already found its place in the statute book;but was not applicable to the particular transaction with which their Lordships had to deal with. While deciding the case before them, according to the law, as it stood before enactment of Section 53A, their Lordships did point out what was achieved by way of extending the English equitable doctrine of part performance by insertion of the new section. I shall quote the relevant passage, which occurs at page 397:

'It remains to take note of the fact that since the present suit was brought, the law in India has been altered by the Transfer of Property (Amendment) Act XX (20) of 1929, which has inserted a new Section 53A in the principal Act, whereby a defendant in action of enjoyment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Their Lordships' view, as expressed in the present case must therefore be understood to be referable to the state of the law before this 'partial importation into India of the English equitable doctrine of part performance'.'

28. Their Lordships, in this, re-affirmed thedicta of Lord Russell of Killowen in 'ARIFF v.JADUNATH MAJUMDAR', 58 Ind App 91. I willquote the observations of their Lordships, in thisconnexion, which occur at page 395:

'The defendant's proper course in the presentcase as Lord Russel of Killowen points out wouldhave been to have founded an action on theagreement of sale and to have applied for astay of the proceedings in order to execute aninstrument in Ms favour which he could haveduly registered. The remedy thus available tothe defendant would not have depended onany recognisance of the agreement of sale asin itself defence to the action of ejectment, butrather on the principle that the Court willnot grant a decree of ejectment which can atonce be rendered ineffective by the same Courtbeing required to grant a decree of specificperformance resulting in reinstatement. Butthe defendant did not ask for a stay, and didnot raise any action for specific performance.Now he is too late to do so; the agreement ofsale has become unenforceable.'

29. It has been urged that what is available to the transferee as a defence in a suit in ejectment by the transferee is available to him as a weapon of attack in an action which takes its rise from an invasion of the transferee's rights under the contract. To give effect to this contention would amount to re-organising a sort of ownership known in England as ownership in equity in the transferee even though, according to the statute, the transfer has not taken place. Every action, more or less, presupposes some sort of invasion or interference with the plaintiff's right and every suit of a plaintiff, therefore, can be said to be defensive. To accede to this contention would amount to a misuse of the statute by extending its application to cases outside its ambits.

30. There is another reason equally fatal to the plaintiff's suit. His suit is not one between him and the transferor r anybody claiming under him (the transferor) The attaching creditor derives nothing from the judgment-debtors by way of any right to purchase or charge upon the property. He wants to attach the property against the will and consent of the judgment-debtors. In the Madras case, cited by Mr. Pal, in this connexion 'G. AUDINARAYUDU v. MANGAMMA', AIR (30) 1943 Mad 706, King, J., gives his reasons for holding that, the attaching creditor is a representative of the judgment-debtor in the following words:

'Attachment is only one stage in execution andunless attachment is followed by sale and purchase, it is of no practical value to anyone,

* * * *It can now no longer be denied that the purchaser is the legal representative of the judgment-debtor .... for as soon as sale is held, the rights of the respondent revive with irresistible force. In these circumstances, I prefer to hold that the expression 'claiming under the transferor' is wide enough in Section 53A to include a Judgment-creditor in the situation in which the appellant in this appeal now stands.'

31. With great respect, I cannot place myself in the same position as his Lordship, King, J. At the time of attachment, the attaching creditor's purchase, at the sale following it, would be mere expectation. I shall not be understood to accept, without reservation, the view that an auction-purchaser in execution of a money decree is in general, a representative of the judgment-debtor,

32. In consideration of what I have said above, I will uphold the decree of the Court below and dismiss the appeal. As there is no appearance for the respondent, there will be no order as to costs of this Court.

Jagannadhadas, J.

33. I agree.

34. After having had the benefit of reading the Judgment of my Lord the Chief Justice I have nothing useful to add.

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