1. The two plaintiffs who filed the suit for recovery of possession and whose suit has been dismissed are the appellants before me. The property originally belonged to one Raghava Reddi, who, as has been found by the lower appellate Court, had executed a written contract of sale in favour of the respondent (defendant) on 26th August 1929. A sum of Rs. 533 was paid to Raghava Reddi and possession was delivered to the defendant. The truth of this contract of sale,, payment of consideration and delivery of possession to the defendant have all been found by the lower appellate Court. Plaintiff l is the widow of Raghava Reddi, who died on 5th October 1933. It is enough to state that plaintiff 2 is the purchaser from plaintiff 1 under a sale deed dated 29th August 1934.
2. One defence raised to the plaintiffs' action was that the defendant was in possession under a contract of sale executed on 26th August 1929 accompanied by payment of consideration and the doctrine of part performance was invoked by the defendant. The lower appellate Court upheld this defence and dismissed the suit. The trial Court had decreed it on other grounds with which we are not now concerned. The decision of the appellate Court does not take note of the fact that as the law was interpreted by the Judicial Committee in Ariff v. Jadunath Majumdar , where there was no registered sale deed in favour of the respondent-defendant, the suit for possession by the original owner has to be decreed leaving it to the defendant to file a separate suit of his own for enforcing specific performance of the contract of sale in his favour, if that suit is in time. The lower appellate Court relied upon Section 53A of the amending Act 20 of 1929 and upheld the defendant's rights to be in possession. Unfortunately, it has been held by a Pull Bench of this Court in Kanakamma v. Krishnamma A.I.R. 1943 Mad. 445 hat the doctrine of part performance embodied in Section 53a, T. P. Act, has no retrospective effect. The transaction under which the defendant claims is of 26th August 1929. The amending Act came into force on 1st April 1930. Under the Full Bench decision, the defendant has no right to rely upon Section 53A of the amended Act. The position is therefore governed by the decision of the Judicial Committee in Ariff v. Jadunath Majumdar . The defendant might have adopted the course suggested in that decision of filing a suit for specific performance and requesting a stay of the trial of this suit.
3. It is urged by Mr. Rangachari, learned advocate for the respondent that this point was not taken in either Court and that therefore his client did not file a separate suit. He also says that as soon as the appeal memorandum filed in this second appeal was sent to him by his client, he advised the filing of a separate suit for specific performance. But he is unable to state whether by this time a suit has been filed. Under the circumstances, I can only decree the present suit and state that nothing said or contained in this judgment will affect the rights, which the defendant herein may put forward either in a suit already filed, or in a suit to be filed hereafter. The present decision is only that until and unless he gets a decree for specific performance of the contract of 26th August 1929, the defendant is not entitled to retain possession of the land. On the finding that the contract of 26th August 1929 evidenced by Ex. 1 is true and that Rs. 533 was paid under that document, which finding I accept, the defendant is entitled to be repaid the purchase money prepaid under the terms of Section 55 (6) (b), T. P. Act. It is enough to refer to what Mr. Mulla says on p. 284 (309) of Edn. 2 of his Transfer of Property Act. In reversal of the decree of the lower appellate Court, I give a decree to the plaintiffs for possession of property on condition of their paying into Court a sum of Rs. 533. The defendant will not be entitled to any interest on this sum and the plaintiffs will not be entitled to any mesne profits. From the date when after depositing the amount, notice is given to the defendant of the deposit, the plaintiffs would be entitled to mesne profits until delivery of possession. The decree will also contain a direction that this decree is subject to the result of a suit already filed, or to be filed by the defendant for specific performance. Each party will bear his own costs throughout. Leave is refused.