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Bandaru Rattayya and ors. Vs. Gaddam Chandrayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtChennai
Decided On
Reported inAIR1948Mad526; (1948)1MLJ392
AppellantBandaru Rattayya and ors.
RespondentGaddam Chandrayya and ors.
Cases ReferredBupal Chandra Sarkar v. Jagad Bhushan Sarkar I.L.R.
Excerpt:
- - the doctrine of part-performance rests on the ground of fraud which is personal and has been held to apply only to the party who, having entered into the contract and permitted the obligee to act on the faith of it as if it were legally perfect, seeks to resile from it on the ground of its imperfect execution......learned subordinate judge that section 53-a applies to the present case is correct. ex. d. i is signed by rajayya, the father, and it does not bear any other signature on the face of it. section 53-a of the transfer of property act requires that the contract relied on must be signed by the person claiming to recover possession, or on his behalf presumably by some one. on the face of it the contract under ex. d. 1 is personal to rajayya and therefore as against the plaintiffs, the first defendamt who was put in pursuance of the contract contained in ex. d. 1 is not entiled to rely on that contract as the plaintiffs are not parties to it. nor was it signed on their behalf by anybody. in a case where a guardian executed a contract on behalf of a minor and put the vendee in possession of.....
Judgment:

Satyanarayana Rao, J.

1. This is an appeal against an order of remand passed by the learned Subordinate Judge of Masulipatam reversing the decree of the District Munsiff of Bezwada. The plaintiffs are the appellants before me. They are the sons of one Rajayya. On the 15th of June, 1935, Rajayya agreed to sell land of the extent of 11 acres 81 cents to the first defendant for a sum of Rs. 12. Ex. D-1, is an unregistered sale-deed executed on the same day. In pursuance of that document the first defendant is in possession of the property. Defendants 2 to 5 are the sons of the first defendant. Rajayya died some time ago and the suit out of which this appeal arises was instituted by the plaintiffs for a declaration of their title to the plaint schedule property and for recovery of possession on the footing that the property was the joint family property of themselves and their father and that the father had no power to sell the property; that the first defendant, taking advantage of the old age of the father, unlawfully got into possession of the property and brought into existence the sale deed. The defendants claim that this property was the self-acquired property of the plaintiffs' father and that the sons had no right in it; that the sale was real and that though there was no registered document in their favour they were at any rate entitled to rely upon an oral sale followed by delivery of possession as the consideration for the sale was below Rs. 100. They also invoked the doctrine of part-performance under Section 53-A of the Transfer of Property Act to resist the suit for possession. The trial Court found that the property was the joint family property of Rajayya and his sons, that first defendant had acquired no legal title to the property in the absence of a registered instrument and that defendants were not entitled to invoke the doctrine of part-performance as embodied in Section 53-A of the Transfer of Property Act against the plaintiffs who were not parties to the contract. The suit was accordingly decreed by the trial Court. On appeal to the learned Subordinate Judge, he agreed with the findings of the District Munsiff regarding the nature of the property and also found that the defendants had no legal title. He however took the view that the defendants were entitled to resist the suit under Section 53-A of the Transfer of Property Act as Rajayya must be deemed to have executed a contract as manager of the family and the plaintiffs must be deemed to be claiming through him. As there was no finding by the District Munsiff of the question whethyer the sale was binding on the plaintiffs he remanded the District Munsiff on the question whether the sale was binding on the plaintiffs he remanded the suit for a disposal after determining that question.

2. In this appeal by the plaintiffs, the only question that arises for consideration is whether the view of the learned Subordinate Judge that Section 53-A applies to the present case is correct. Ex. D. I is signed by Rajayya, the father, and it does not bear any other signature on the face of it. Section 53-A of the Transfer of Property Act requires that the contract relied on must be signed by the person claiming to recover possession, or on his behalf presumably by some one. On the face of it the contract under Ex. D. 1 is personal to Rajayya and therefore as against the plaintiffs, the first defendamt who was put in pursuance of the contract contained in Ex. D. 1 is not entiled to rely on that contract as the plaintiffs are not parties to it. Nor was it signed on their behalf by anybody. In a case where a guardian executed a contract on behalf of a minor and put the vendee in possession of the property, and the minor thereafter attemped to recover possession by a suit, it was held by a Bench of this Court, in Subramanyam v. Subba Rao (1944) 1 M.L.J. 147 : I.L.R. 1944 Mad. 749, that the minor plaintiff on whose behalf the contract was executed by the guardian was not the contracting party and was not the transferor and that therefore Section 53-A of the Transfer of Property Act was not applicable. It was pointed out in that case that the bar imposed by the statute is personal to the contracting party. The policy behind the section as pointed out by Patanjali Sastri, J., at page 756 in that decision is as follows:

The doctrine of part-performance rests on the ground of fraud which is personal and has been held to apply only to the party who, having entered into the contract and permitted the obligee to act on the faith of it as if it were legally perfect, seeks to resile from it on the ground of its imperfect execution.

3. On this reasoning it would be seen that the disability of the contracting party cannot be extended to other persons who have not signed the agreement or on whose behalf somebody had not signed the agreement. To the similar effect is the decision of the Calcutta High Court in Bupal Chandra Sarkar v. Jagad Bhushan Sarkar I.L.R. 1943 Cal. 56. There the contract was by the widow and the purchaser was put in possession of the property. The widow died and the reversioner sued to recover possession of the property as there was no sale deed executed by the widow in favour of the purchaser As the reversioner did not claim through the widow it was held that the purchaser who came into possession in pursuance of the contract by the widow was not entitled to resist the suit in ejectment. It was contended however on behalf of the respondent that as Rajayya was the father and the head of the family he was the manager of the family and must be deemeed to have entered jpto the contract on behalf of and for the benefit of the joint family of himself and his sons and that therefore the contract also must be deemed to have been signed by him not only for himself but also on behalf of his sons. In support of this contention cases have been cited by the learned advocate for the respondent in which it has been held in particular cases that a person who has signed a document without describing himself as manager was deemed to have signed on behalf of the family as manager. Nobody doubts this proposition. The language of Section 53-A is not that the contract should be signed by him or must be deemed to have been signed on his behalf. ' The language is signed by him or on his behalf.' The statute therefore requires the actual signature of somebody who is the plaintiff or by some one on his behalf. If it is merely a question of inferring that the signature was on behalf of others also the section, m my opinion, would have no application and the language should have been signed by him or on his behalf or deemed to have been signed on his behalf ' lo accept the contention of the learned advocate for the respondent would be introducing into the language of the section. ignoring the express words, terms which are not there. I am therefore unable to accept the interpretation sought to be placed by the learned advocate for the respondent on Section 53-A of the Transfer of Property Act. In these circumstances, I am of opinion that the learned Subordinate Judge was not justified in applying the doctrine of part-performance contained in Section 53-A to the present case. The order of remand passed by him was not justified and is hereby set aside and the decree of the learned District Munsiff is restored with costs here and in the court below. (Leave to appeal is refused).


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