(1) Whether the transaction of oral sale requiring compulsory registration under Section 54 of the Transfer of Property Act is saved by the doctrine of part performance is the question which falls for determination in this appeal.
(2) The plaintiffs respondents brought a suit for redemption of agricultural land which they had mortgaged in favour of the defendants appellants on 20th of April, 1950 for Rs. 508/-. Subsequently by an oral sale the equity of redemption was also sole to the appellants on 5th of May, 1955 for a sum of Rs. 492/-. The provisions of Section 54 of the Transfer of Property Act were extended to Punjab on 1st of April, 1955 and on the assertion that the oral sale was invalid the plaintiffs sought redemption of the suit property on payment of Rs. 508/-.
(3) The trial Judge passed a preliminary decree for redemption on payment of Rs. 1192/- with interest and the defendants having also failed in their appeal have come again to this Court in second appeal.
(4) Mr. Jagan Nath Seth, the learned counsel for the appellants, has contended that the defendants being still in possession of the land the doctrine of part performance should have been applied in their favour although the transaction of sale required registration under Section 54 of the Transfer of Property Act. Admittedly, there is no writing to evidence the oral sale. It has been held in a Division Bench authority of this Court (Khosla and Dulat JJ.) in New Delhi Municipal Committee v. H. S. Rikhy, AIR 1956 Punj 181, that the doctrine of part performance as embodied in Section 53A of the Transfer of Property Act can be invoked only when there is a writing in existence signed by the transferor or on his behalf. The principle of part performance only applies where there has been a transfer made and not where there has been a transfer made and not where the statute bars a transfer. The writing, in other words, is as essential sine qua non for the applicability of the doctrine of part performance.
This doctrine was affirmed by Chief Justice Roberts and Dunkley J. on Maung Ohn v. Maung Po Kwe, AIR 1938 Rang 356, and it was laid down that Section 53A clearly contemplates that the contract itself shall be in writing, and not that there shall be a writing referring to some part or parts of a contract which may previously have been oral. In the present case, there is a reference to an oral sale in a mutation recorded by a Patwari. That surely cannot be equated with a writing of the transaction itself. Lokur J. in Shravan Jayaram v. Garbad Ukha, AIR 1943 Bom 406, observed that
'a contract in writing or a written agreement is a sine qua non under section 53A, that is to say, the writing relied upon itself be the contract................. such written agreement may be the embodiment of what has already been agreed upon by the parties but what is written must be the agreement itself.'
The mutation recorded at the instance of a Patwari cannot constitute an agreement between the parties S. K. Sen J. of the Calcutta High Court has ruled in Chandra Nath Mukherjee v. Chulai Pashi AIR 1960 Cal 40, that
'the provisions of Section 53A of the Transfer of property Act come into operation when there is some writing signed by the transferor and not when there is some writing signed by the transferee.'
A Division Bench of the Assam High Court (Chief Justice Thadani and Ram Labhaya J.) in Dharameshwar Sarma v. Lakhyadhar Borgohain, AIR 1950 Assam 107, held that the requirement of Section 53A is that a person should contract to transfer for consideration any immovable property by writing signed by him on his behalf.
(5) It is clear, therefore, that the doctrine of part performance cannot be availed of by the appellants. The appeal, therefore, fails and is dismissed. I would, however, leave the parties to bear their own costs.