1. These are two connected civil revision petition and civil miscellaneous second appeal arising from the decrees and judgment of the learned District Judge of North Malabar in A. S. Nos. 65 and 64 of 1949 respectively.
2. The facts are: The suit property which is a paddy field and was taken on lease by the defendants' deceased father Baduvan Haji under a kychit dated 27-2-1912 for a yearly rent of 200 seers of paddy and sundries worth Rs. 1-8-0. After Baduvan Haji's death fresh documents were executed in the form of a kanam demise with a kanam of Rs. 2 and a period of 8 years. Underthe kanam deed the rent was the same rent of 200 seers. A kanam deed and a kanam marupat were executed and the marupat was handed over to the plaintiff. But neither document was registered. On the strength of the unregistered kanam, marupat executed by the two defendants sons of Baduvan Haji, the plaintiff filed O. S. No. 589 of 1947 to recover arrears of rent for four years amounting to Rs. 302-0-11. Defendants 1 and 2 along with two others, who were the heirs of Baduvan Haji, filed O. P. No. 71 of 1947 in the suit on the foot of the property being still held under the kychit of 1912 and not under the kanam and marupat and praying under the Malabar Tenancy Act for fixation of fair rent.
The learned District Munsif following --'Rajendrasingh v. Hulasadas', AIR 1945 Nag 69(A), reviewing all previous decisions held that the kanam marupat was inadmissible in evidence for want of registration, that the holding was therefore held under the earlier kychit of 1912, that the fair rent payable was only 1125/8 edangalis of paddy according to the Badagara measure and that the defendants were liable to pay fair rent only at that rate and that the arrears of rent for the period covered by the suit at that rate amounted only to Rs. 137-7-5. The suit and the O. P. were accordingly disposed of and there were appeals contending that the finding of the learned District Munsif that the holding of the defendants now was not under the kanam deed but under the earlier kychit was not correct and that the unregistered kanam deed is admissible in evidence to prove an agreement under Section 53A, T. P. Act and that the contract rate should have been decreed for the period covered by the suit.
The learned District Judge negatived the contention of the appellant regarding the admissibility of the unregistered kanam deed under Section 53-A, T. P. Act, confirmed the finding of the learned District Munsif regarding the right of the defendants to claim fixation of the fair rent but held that it will have no retrospective effect and that the plaintiff was entitled to claim rent at the contract rate for the suit period. On the above findings the decrees of the learned District Munsif were modified. Hence the civil revision petition and the civil miscellaneous second appeal by the plaintiff.
3. The point for determination is whether the equitable doctrine of part performance under Section 53A, T. P. Act is available as a defence only.
4. Section 53A has been described by the Privy Council as a partial importation into India of the English equitable doctrine of part performance: -- 'Pir Bux v. Mahomed Tahar' . By virtue of this section part performance does not give rise to an active equity as in England but to a statutory right. The effect of the section is to relax the strict provisions of the Registration Act and the Transfer of Property Act and allow the defence of part-performance to be established. This is done for the protection of ignorant transferees who have taken possession or spent money in improvements in reliance of documents which are ineffective as transfers or of contracts which cannot be proved for want of registration. This right is more limited than the English equity in two respects, viz., (i) the contract must be in writing; and (ii) it is available only as a defence.
5. The right conferred by this section is different from the English law where a transferee under a parole contract, which has been partly performed, can either as plaintiff or as defendant claim relief on the basis of a valid transfer. The right conferred by this section is a right on the part of the transferee to plead in defence that the transferor is debarred from enforcing any right in respect of the property transferred.
6. But some decisions on which the learned advocate for the appellant relies have gone far beyond the limited scope of the section. In --'Sulleman v. P.N. Patell', : AIR1933Bom381 (C), the defendant took possession under an unregistered lease for five years and vacated after sixteen months claiming to be a monthly tenant. The Court held that as the defendant had taken possession under the unregistered lease he was liable under Section 53-A for the rent of the whole term and awarded damages to the plaintiff. In this case part performance was used not as a ground of defence but as a ground of attack. The cardinal principle was overlooked viz., that part performance must be the act of the person seeking to avail himself of the equity and that acts of the person sought to be charged are of no avail.
In -- 'Mastram v. Ma Ohn', AIR 1934 Rang 284 (D), also a plaintiff was wrongly allowed to avail himself of this section. The facts were simply as follows: V the owner sold the property by unregistered deed to L who took possession. L gave a usufructuary mortgage of the property to the plaintiff. The plaintiff sued to recover possession from the defendant who claimed to be a prior purchaser from V. The. Court held that the plaintiff claiming under L had a right to possession perfected by part performance and was entitled to a declaration of that right against the defendant. In -- 'Kaura Ram v. Chamanlal', AIR 1934 Lah 751 (E), a plaintiff was said to have a right under Section 53A but the plaintiff was clearly in possession and the judgment probably meant that he had a right to resist possession.
7. But as pointed out in the standard commentary on the Transfer of Property Act by Sir D. F. Mullah, these decisions overlook that whereas in English law the equity of part performance is an active equity which a plaintiff in possession may enforce in an independent suit or proceeding e.g., a suit for specific performance, or for an injunction to restrain dispossession, after the enactment of Section 53-A the right conferred by the section is a passive equity available only to the defendant to protect his possession. The section imposes a statutory bar on the transferor and does not confer any active title or right on the transferee. Thus, it is not possible for a person who is entitled to the benefit of the section to bring a suit as plaintiff for the purpose of enforcing his right to the property.
8. The only exception in form, though not in substance, is in cases under the Civil P. C., Order 21, Rule 63 or Rule 103. In such cases the plaintiff will not be necessarily debarred from the benefit of the rule because where by the nature of the case, as disclosed by the pleadings or otherwise, it is apparent that the transferee comes to the Court to defend his possession against invasion of it by the transferor, he is entitled to invoke the doctrine of part performance. The mere position of a party in the heading of a suit would not determine whether he is or is not entitled to the benefits of the section. Since the object of a suit under Order 21, Rule 103, Civil P. C. would be to protect possession and the capacity in which the plaintiff comes to the Court is in reality a defence and the suit would in reality be part of the same proceedings as those in which the transferee's rights are attacked, the plaintiff can take advantage of Section 53A.
9. This has now become settled law as can be seen from the following decisions. In -- 'Probodh Kumar Das v. Dantmara Tea Co. Ltd.', ILR (1949) 1 Cal 250 (PC) (F), their Lordships of the Privy Council held that the amendment of the law effected by the enactment of Section 53A, T. P. Act conferred no right of action on a transferee in possession under an unregistered contract of sale and that the right conferred by Section 53A is a right available only to a defendant to protect his possession and the section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Their Lordships referred to their own previous decision in wherein this subject was fully discussed. See also the following cases: -- 'Pearylal v. Prithi Singh' : AIR1945All422 'Mahomed Rowther v. Tinnevelly Municipal Council', AIR 1933 Mad 746 (H); -- 'Bholai Phukan v. Lakhi Kanta', AIR 1949 Ass 8 (I);-- 'Madhuban v. Basanta Khetri', : AIR1947Pat424 (J); -- 'Veeraraghavarao v. Gopalrao', AIR 1942 Mad 125 (K) and -- 'Hari Prashad v. Hanumanta', (L).
10. Therefore in the present case where it is not the plaintiff but the defendants who are in possession and where it is the plaintiff transferor who wants to make use of the unregistered kanam deed not as a shield to defend her possession but to use it as a spear to attack the defendants, Ex. A. 1 becomes inadmissible in evidence and the present possession of the defendants must be traced to the old marupat of 1912.
11. On that conclusion the other findings,including the fixation of fair rent, flow. There areno merits in this civil revision petition and thecivil miscellaneous second appeal and both aredismissed with costs, one set.