1. The 4th defendant, the appellant, relied on an oral sale on the 4th May 1901, the date of her unregistered document, Exhibit I, executed by the 1st defendant; the plaintiff on a registered sale-deed, Exhibit A, executed on the 5th May 1908 by the 1st and 2nd defendants. The question is whether on the latter date the plaintiff's vendors had any title to convey; and the answer to it depends under Section 54 of the Transfer of Property Act on whether the 4th defendant's oral sale included a delivery of the property sold, that is, whether the 1st defendant placed the 4th defendant in possession.
2. The 4th defendant relied primarily on an alleged delivery to her of the property at the Monigar's house at the time of the execution of Exhibit I and her alleged enjoyment from that date. The learned District Judge has found some difficulty in applying the authorities he cited to these allegations. But their result seems to us plain, that proof of a formal delivery of the property by the seller is unnecessary, if there is proof that possession passed to the buyer and that it did so with the assent, express or implied, of the seller and in connection with and to give effect to the contract of sale.
3. In this case the 4th defendant relied on the delivery to her in the Monigar's house at the execution of Exhibit I and on enjoyment from its date or, in the alternative, on enjoyment from some later date as given in connection with the sale. Our attention has been called to the District Judge's observation that there is really no evidence that the 4th defendant obtained possession on the date of Exhibit I. But, as he also set out fully the evidence as to what happened in the Monigar's house and as to enjoyment, we understand him to mean only that there was no evidence of value. His conclusion on the former point is not stated distinctly. But it is clear from the tenor of his judgment that he concurred in the District Munsif's decision that the delivery in the Monigar's house (whatever its effect) and enjoyment from the date of Exhibit I were not proved.
4. The first point for decision is then, whether the 4th defendant was placed in possession at any later date before the 5th May 1908. The learned District Judge, no doubt, referred at the end of his judgment to her failure to prove that the land was delivered to her. But he had already referred to the ample evidence on the plaintiff's side that she had been in possession for only three or four years prior to November 1910' and, as the plaintiff admitted the 4th defendant's possession, this must be taken as expressing his conclusion. His judgment is dated the 8th August 1911, and there is, therefore, no finding on the essential point, whether possession was obtained by the 4th defendant before or after Exhibit A. If she did not prove that it was so obtained, she must fail. If she did prove this, it will be necessary for the District Judge to decide in the light of the foregoing whether the transfer of possession to her fulfilled the other requisites above referred to.
5. We accordingly call for findings on the following issues:
(1) Is it proved that the 4th defendant obtained possession before the 5th May 1908?
(2) If she did so, did she do so with the assent, express or implied, of the 1st defendant, and in connection with, and to give effect to, the contract of sale between them?
6. On the first of these issues no fresh evidence is necessary since the question was tried fully in the Court of first instance.
7. We have been asked in Civil Miscellaneous Petition No. 2458 of 1913 to admit in evidence here or to direct the admission by the District Court at the remand hearing of a document tendered there but not admitted at the hearing of the appeal. There is nothing before us to explain the 4th defendant's failure to make this document evidence at the trial in the Court of first instance. The only affidavit is one by the clerk of the 4th defendant's Vakil to the effect that the document was tendered in the District Court; but there is nothing as to the clerk's means of knowledge. In the circumstances the document cannot be admitted, and Civil Miscellaneous Petition No. 2458 of 1913 must be dismissed with costs.
8. It is not clear that the point raised by the second issue remanded has been considered by either Court. On it any fresh evidence, which may be adduced, should be taken and considered.
9. The findings should be submitted within six weeks from the date of. this order and ten days will be allowed for filing objections.
10. I agree.
11. In compliance with the above order of this Court, the District Judge of South Arcot submitted the following
Findings--* * * *
12. My finding on the 1st issue remanded is that the 4th defendant did obtain possession of the southern half of the field, i.e., the suit land, and was in possession of it at least from 1902, the date of the earliest katchat, Exhibit III, that she was probably in possession prior to that date and that she probably got into possession shortly after the execution of Exhibit I.
13. With regard to the 2nd issue, I see no reason for not accepting the 4th defendant's evidence that she took possession shortly after the execution of Exhibit I with the express consent of 1st and 2nd defendants given at the time when Exhibit 1 was executed; but if it is held that it is open to me to record such a finding, on the ground that the general tenor of my predecessor's judgment shows that he found that permission to occupy the suit land was not given at the time when Exhibit I was executed, then my finding on the 2nd issue remanded is that it must be presumed that the 4th defendant got into possession of the suit land about 1902, if not earlier, with the implied consent of both the 1st and 2nd defendants as their vendee, in the absence of any explanation on behalf of her vendors, on whose evidence the plaintiff relies, as to how she got into possession except as their vendee.
14. In the result my findings on both the issues remanded are in 4th defendant's favour.
15. This second appeal coming on for hearing on the 30th April 1914 after the receipt of the findings called for by order of this Court dated 4th November 1913 and having stood over for consideration till the 27th July 1914, the Court delivered the following.