1. The facts out of which this appeal arises are simple. The plaintiff-appellant purchased the suit house by a registered deed of sale dated 26-4-44 from one Kesava Rao, at a time when the suit house was in the occupation of two tenants. One of them is the respondent in this appeal. The other tenant, Appa Rao, attorned to the plaintiff and executed a fresh agreement of tenancy with him. The respondent, however, resisted the plaintiff's claim for possession alleging that the sale relied on by the plaintiff was a collusive transaction and that she (the respondent) was actually in possession of the house in pursuance of an agreement to sell Ex. A dated 11-12-43 executed by Krishnamurti, the father of Kesava Rao, in favour of the respondent's husband. It is alleged that Kesava Rao, ignoring this contract with the respondent's husband, sold the suit house to the plaintiff and directed both the tenants to attorn to his vendee. The plaintiff also issued registered notices on the respondent but to no effect.
2. The learned Agency Subordinate Judge has found that the sale deed dated 26-4-44 relied on by the plaintiff is a genuine transaction supported by consideration. He also found that the agreement to sell, Ex. A dated 11-12-43 relied on by the respondent is a genuine transaction and that the respondent was in possession of the suit house for at least four years prior to the date of the agreement. The learned Subordinate Judge was of the view that Section 53A of the Transfer of Property Act applied to the facts of the case and that the respondent could successfully resist the plaintiff's claim for possession as she continued in possession of the same in part performance of the agreement in favour of her husband, having paid Rs. 50/- by way of advance. There is no dispute that this sum of Rs. 50/- was actually paid.
3. Mr. Chatterji, learned advocate for the appellant, while accepting the findings of fact, challenges the lower appellate Court's interpretation of Section 53A of the Transfer of Property Act, and argues that the defendant who seeks to rely on Section 53A, should not only prove the agreement in her favour and the passing of consideration thereunder, but should also prove that she has done something by way of part-performance of the agreement to show that possession vested in her as vendee. Proof that consideration passed under an agreement to sell may avail against the transferor but where, as in this case, the suit is by the transferee and is sought to be resisted on the ground mentioned in Section 53A, defendant has got to prove something more than that. Mr. Chatterji relies on the proviso to Section 53A which reads as follows :
'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.'
It appears to us that mere proof of continuance of possession by the respondent is not enough to charge the transferee with notice of the contract to sell. If, as alleged, the character of her possession changed from that of a tenant to that of a vendee in part performance of the contract, it must be proved that the subsequent transferee, viz., the plaintiff, had notice thereof. Neither of the Courts below appears to have addressed itself to this aspect of the matter, and the lower appellate Court while applying Section 53A, seems to have overlooked the proviso to this section. In our judgment the determination of the question involves a finding of fact which has to be recorded by the Court below. Without, therefore, expressing any opinion as to whether the plaintiff had notice of the agreement to sell (Ex. A) or not, we think it necessary, in the interests of justice, that the Court below should record a finding on the point.
4. We would accordingly allow the appeal, set aside the judgment of the Court below & remand the case to the Court of the Agency Subordinate Judge to ascertain whether, on the evidence already on the record, the plaintiff had either notice of the contract or of the continuance of possession of the respondent in part performance thereof and dispose it of in the light of the observations made above. As the respondent does not appear, we direct that the costs of this appeal will abide the ultimate result of the suit.
5. I agree.