V.B. Raju, J.
1. The appellant was the original plaintiff. Her suit for maintenance was allowed by the trial Court but dismissed by the first appellate Court on the ground that although her predecessor-in-title Parbat Bechar had mortgaged the property in question to Hargovan Rughnath the doctrine of part performance enunciated in Section 53A of the Transfer of Property Act applied because there was an unregistered document of sale dated 1918 A.D. which was subsequent to the mortgages. The learned Judge held that in view of the doctrine of part performance the plaintiff was not entitled to redeem the mortgages executed by her predecessor-in-title. He held that the respondents were entitled to the benefit of the principle enunciated in Section 53A of the Transfer of Property Act and he therefore dismissed the plaintiffs suit.
2. The Learned Counsel for the appellant has relied on Tribhovan Hargovan v. Shanker Desai 45 Bom. L.R. 866 which was a decision of a single Judge. He held that in the case before him the doctrine of part performance did not apply because there was no valid contract the contract being unregistered. Section 53A of the Transfer of Property Act reads as follows:
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 certainty
and the transfer has in part performance of the contract taken possession of the property or any part thereof on 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.
Under Section 17 of the Indian Registration Act it is only a contract of final sale that requires to be registered. A contract to sell does not require to be registered. If a contract of sale is unregistered it can be regarded as a contract to sell which does not require to be registered. It is because that document is unregistered that Section 53A has been enacted. To hold that a contract of sale cannot be looked at because it is unregistered would be contrary to Section 53A. To so hold would render Section 53A of the Transfer of Property Act and Section 49 of the Registration Act meaningless and nugatory. Section 53A of the T.P. Act specifically applies where notwithstanding that the contract though required to be registered? has not been registered or where there is an instrument of transfer and the transfer has not been completed in the manner prescribed therefor by the law for the time being in force.
3. It is therefore clear from Section 53A of the T.P. Act itself that we can look at the contract although it has not been registered or completed in the manner required by the law. That principle is part of the section itself and if we accept the view of Sen J. in 45 Bom. L.R. 566 (supra) it would definitely go against the wording of the section. This has been pointed out in Nanasaheb v. Appa : AIR1957Bom138 . Section 49 of the Registration Act reads as follows:
No document required by Section 17 or by any provision of the Transfer of Property Act 1882 to be registered shall-
(a) affect any immovable property comprised therein or
(b) confer any power to adopt or
(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act 1877 or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act 1882 or 35 evidence of any collateral transaction not required to be effected by registered instrument.
The proviso is equally important. An unregistered document can be treated as evidence of part performance of a contract for the purpose of Section 53A of the T.P. Act. This is part of the wording of Section 49 of the Registration Act and therefore the contention of the Learned Counsel for the appellant must be rejected.
4. The next contention of the Learned Counsel for the appellant is that nothing has been done under the contract. But it is clear that the money was paid under the contract. Under the contract the money was received and the nature of the possession was also changed from possession of the mortgagee into possession of an owner. The Learned Counsel for the appellant also relies on Bhikhabhai Nanabhai v. Chimanlal Maganlal 55 Bom. L.R. 641. But this is a case under Section 54 of the Transfer of Property Act and not under Section 53A of the said Act and in the present case I am not concerned with the interpretation to be put upon the word delivery used in Section 54 of the Transfer of Property Act.
All the contentions of the Learned Counsel for the appellant are therefore rejected and the appeal is dismissed with costs.