M.M. Dutt, J.
1. This appeal was referred to the Full Bench by a Division Bench consisting of D. Basu. J. and myself for decision on the following two questions :--
(1) Whether the reversioner of a Hindu widow or a limited heir, is a person claiming under the Hindu widow or the limited heir within the meaning of the expression 'the transferor or any person claiming under him' as contained in Section 53-A of the Transfer of Property Act ?
(2) Whether the case of Bhopal Chandra Sarkar v. Jagad Bhusan Sarkar, ILR (1943) 1 Cal 66 = (AIR 1943 Cal 344) was correctly decided 2
2. As the instant appeal 5s a Second Appeal, under Rule 2 of Chap. VI of the Appellate Side Rules, the entire appeal was required to be referred to the Full Bench for the disposal of the same by the Full Bench; the reference was therefore, defective. Under these circumstances, this Full Bench remitted back the appeal to the Division Bench and the Division Bench consisting of Arun Kumar Mukherjea, J. and myself have now referred the entire appeal to the Full Bench in accordance with Rule 2 of Chapter VI of the Appellate Side Rules.
3. The judgment of the Division Bench whereby the above two questions were referred to the Full Bench, was delivered by me. The points which were argued on behalf of the parties before the Division Bench, have also been argued before the Full Bench. All these points including the aforesaid two questions have been considered by me in my judgment of the Division Bench, After considering the respective contentions of the parties, I do not find any reason to change my view as expressed in my judgment in the Division Bench on these points. It may be stated here, that two other new points have been raised by Mr. Banerjee, learned Advocate for the respondents. Before I refer to and consider these two points, I set out below my judgment in the Division Bench and adopt the same as my judgment in the Full Bench regarding the points dealt with therein :--
4. This is a defendants appeal and it arises out of a suit for declaration of title and recovery of possession. The principal question Involved in this appeal is whether a reversioner of a Hindu female, is a person claiming under her within the meaning of Section 53-A of the Transfer of Property Act. In order to consider the question, it is necessary to state the facts of the case which lie in a narrow compass.
5. One Umesh Chandra Pal was admittedly the owner of the suit proper-ties described in schedules Ka and Kha to the plaint He died leaving behind him his minor daughter Kalibala, who inherited the suit properties as the sole heiress of her father Umesh Chandra Pal. As Kalibala was a female heir, she got only a limited interest in the suit properties. After the death of Umesh and during the minority of Kalibala. her husband Ashutosh Mondal acting as her guardian sold the Kha schedule properties to one Dwarikanath. husband of de-fendant's sister Satyabala. on Magh 11, 1337 B.S. and gifted the Ka schedule properties to him on Magh 10, 1337 B. S. Both these transfers were made by two unregistered instruments on the ground of legal necessity. The purported gift of the Ka schedule properties was burdened with the condition that the donee Dwarikanath was to perform the seva puja of Sri Sri Iswar Radha Damodar Jiu Thakur. the family deity of Umesh. The defendants purchased both the Ka and Kha schedule properties from Satyabala. after the death of her husband Dwarikanath, There is no dispute that Dwarikanath took possession of the suit properties on the basis of the said transfers by the unregistered instruments. After the death of Dwarikanath, his widow Satyabala possessed the suit properties and after the same were transferred to the defendants the defendants have been possessing the suit properties. After the death of Kalibala. the plaintiff purchased the suit properties from her son the pro forma defendant No. 3. Ganapati by a registered deed of sale, dated Magh 13, 1360 B. S. It may be stated here, that Ganapati being a minor, the deed of sale was executed by his father Ashu-tosh Mondal. as the natural Guardian of Ganapati. As the defendants resisted the plaintiff's claim for delivery of possession of the suit properties on the strength of his purchase of the same from Ganapati. the plaintiff instituted the suit for the reliefs aforesaid. It was alleged by the plaintiff that the defendants were the bargadars of Ganapati and that the defendants did not derive any title to the suit properties under the unregistered documents of transfer made by Ashutosh and the guardian of his wife Kalibala, then a minor.
6. The trial court came to the findings that the Kobala whereby Dwarikanath purchased the Kha schedule properties from Kalibala and the deed of gift whereby Kalibala gifted the Ka schedule properties to Dwarikanath were genuine and that there were justifying legal necessities for the said transfers. Further, the trial court found that Dwarikanath possessed the suit properties; that after his death his widow Satyabala possessed the same; that after the transfer by Satyabala to the defendants the defendants had been possessing the suit properties by realising rent from the tenants and that the defendants had been performing seva puja of the family deity of Umesh Chandra Pal. In the turn of worship of Umesh. It was, however, held by the trial court that the kobala and the deed of gift being unregistered documents, did not confer any title on Dwarikanath and that accordingly, the defendants did not derive any title by the purchase of the suit properties from Satyabala, the widow of Dawarikanath. In that view of the matter, the trial court decreed the plaintiff's suit.
7. The lower appellate court, on appeal by the defendants against the decree of the trial court affirmed the aforesaid findings of the trial court The lower appellate court was also of the view that no title passed under the said unregistered documents in favour of Dwarikanath. It appears that before the lower appellate court the defendants claimed protection against eviction under Section 53-A of the Transfer of Property Act but the lower appellate court was of the view that the transfers having been made by Ashutosh, the husband of Kalibala, as the guardian of Kalibala, who was a minor at that time, the transfers were altogether void. In coming to the said finding the lower appellate Court proceeded on the footing that the transfer made by the guardian of a minor was void and as such the question of any protection under Section 53-A of the Transfer of Property Act was not available in respect of a contract made on behalf of the minor which was Invalid not only on the ground of want of registration but also on the ground that the contract made by or on behalf of the minor was void. The lower appellate court, however, refused to grant a decree for recovery of possession as the plaintiffs own case being that the defendants were Bhagidars in respect of the suit properties. In that view of the matter, the lower appellate court modified the decree of the trial court by declaring the plaintiffs title and confirming the possession of the plaintiff in respect of the suit properties through the defendants as the Bhagidars of the plaintiff. Further, the defendants were restrained by the lower appellate court from challenging the title of the plaintiff. Hence this appeal by the defendants.
8. There is no doubt that a contract made by a minor is void. There was, however, a conflict of judicial decisions as to whether a contract made by a guardian for the benefit of his ward could be enforced. In Waghela v. Sheikh Masludin, (1886) 14 Ind App 89 (PC) it was held by the Privy Council that if a contract by a guardian on behalf of his ward imposes personal liability on the minor the contract would be void. That view was affirmed by the subsequent Privy Council decision in Indur Chunder v. Radha Kishore, (1892) ILR 19 Cal 507 (PC), In Mir Sarwarjan v. Fakhruddin, (1912) 39 Ind App 1 (PC) it was held that it was beyond the competency of the guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immovable property for the minor on the ground of want of mutuality of the contract. This principle laid down by the Privy Council was followed by different High Courts in India. The conflict has however, been set at rest by the latest Privy Council decision in Subramanayam v. Subba Rao, 75 Ind App 115 - (AIR 1948 PC 95). In that Privy Council case, the mother of an infant as his natural guardian entered into a contract for the sale of the minor's property to a stranger. The contract was for the benefit of the minor and in pursuance of the agreement, the transferee was put in possession of the property. No sale deed was executed, and the minor through his guardian instituted a suit for recovery of possession of the property contracted to be sold on the ground that the contract was not binding upon him. It was held by the Privy Council that the defendant was protected under Section 53-A of the Transfer of Property Act, and the minor for whose benefit the contract was entered into answered most aptly the description of the 'transferor' in the sense in which the expression was used in the section. It has been laid down by the Privy Council in that case that if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it. and, further if it is for the benefit of the minor, the contract can be specifically enforced by or against the minor. It is therefore, apparent that the doctrine of mutuality which was for the first time introduced in India by the said Privy Council decision in Mir Sarwarjan's case, (1912) 39 Ind App 1 (PC) was subsequently given a go-by by the later Privy Council decision in Subramanayam's case. 75 Ind App 115 = (AIR 1948 PC 95). The lower appellate Court was, therefore, not right in holding that because the transfers were made by Ashutosh on behalf of his wife, a minor, the transfers were void even though, it found that the transfers were for legal necessities, that is, for the benefit of the minor or her estate. The finding as to legal necessity has not been challenged before us.
9. It was firstly contended by Mr. Baneriee, learned Advocate appearing on behalf of the plaintiff-respondent, that the defendants not having specifically pleaded Section 53-A of the Transfer of Property Act in their written statement, they were not entitled to seek protection under the said provision. It, however, appears from the written statement that the defendants stated all ingredient facts necessary for the purpose of Section 53-A of the Transfer of Property Act. It is true that there has been no specific mention of the section in the written statement, but in our view, that will not debar the defendants from raising the defence under Section 53-A of the Transfer of Property Act. It does not appear from the judgment of the lower appellate court that the plaintiff took any objection to the defendants' relying upon the provisions of Section 53-A of the Transfer of Property Act Mr. Baneriee relied upon a decision reported in Seraijul Hoque v. Dwijendra, 45 Cal WN 240 = (AIR 1941 Cal 33). where it has been laid down that Section 53-A must be specifically pleaded. In the instant case, as aforesaid, the defendants having stated all ingredient facts for the purpose of Section 53-A, in our view, the defendants were entitled to raise the defence under Section 53-A, even though there has been no mention of that section in the written statement. We would accordingly overrule this contention of Mr, Baneriee.
10. The next question raised Is whether the reversioner of the Hindu female having a limited interest, is a person claiming under the Hindu female within the meaning of Section 53-A of the Transfer of Property Act. In order to consider that question It is necessary to refer to the provisions of Section 53-A of the Transfer of Property Act. which, runs as follows:--
'53-A 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 transferee has in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part perform-ance of the contract and has done some act. in furtherance of the contract, and the transferee has performed or is will-ing to perform his part of the contract
then, notwithstanding that the con-tract, though, required to be registered, had 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 contracts.
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'.
11. Before we consider that question, we may dispose of the respective claims of the parties to the Ka schedule land which was gifted by Kalibala in favour of the defendants' predecessor-in-interest Dwarikanath by an unregistered deed of gift Under Section 123 of the Transfer of Property Act a gift of immovable property must be effected by a registered instrument. In the instant case, the gift of the Ka schedule properties was not effected by a registered instrument and, accordingly, the gift is invalid and no title passed to the said Dwarikanath under the unregistered deed of gift. It may be stated here, that the suit has been instituted by the plaintiff within twelve years of the death of Kalibala, that is, within the period of limitation. The only defence of the defendants is under Section 53-A of the Transfer of Property Act. The doctrine of part performance as embodied in Section 53-A is confined to transfers for consideration and is not extended to gifts. For the reasons aforesaid, we hold that the plaintiff's suit has been rightly decreed by the Courts below in respect of the Ka schedule properties.
12. Reverting to the land in schedule Kha. we may dispose of another point before considering the said ques-tion. The Kha schedule land appertained to an occupancy holding. Under Section 26-C of the Bengal Tenancy Act, the transfer of an occupancy holding can be effected only by a registered document of transfer. It was contended by Mr. Banerjee that as the Kobala in respect of the Kha schedule land was not registered as required by Section 26-C. it was in-effective as a transfer of an occupancy holding and it could not be received as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act under the proviso to Section 49 of the Registration Act, for, the proviso would apply only where the transfer which was required to be registered under Section 17 of the Registration Act or under the Transfer of Property Act, was not registered.
13. Section 49 bars the reception in evidence of a document of transfer which is required to be registered under Section 17 of the Registration Act or under the Transfer of Property Act, but not registered. It does not lay down any prohibition in respect of transfers required to be registered under other enactments. It is therefore, apparent that the bar provided for in Section 49 relates to an unregistered document of transfer required to be registered under Section 17 of the Registration Act or under the Transfer of Property Act. The proviso is an exception to Section 49 and it provides that the bar to the reception in evidence of an unregistered document of transfer will not apply in certain cases. As the Kobala in question is required to be registered under Section 26-C of the Bengal Tenancy Act the prohibition contained in Section 49 does not apply and the Kobala is admissible in evidence for purposes other than for establishing title. Recently we expressed the same view in Raiendra Nath Sarkar v. Gour Gopal Ghosh, (S. A. No. 1059 of 1963 disposed of on 20-3-1970 = (AIR 1917 Cal 163). In that case we referred to and relied upon two decisions of this Court, one by Roxburgh. J, in Fazal Ah-med v. Etim Ali, AIR 1942 Cal 337 and the other by P. N. Mookerjee and Guha. JJ. in Manjural Hoque v. Mewajan Bibi, : AIR1956Cal350 . The said contention of Mr. Banerjee cannot, therefore, be accepted and is overruled.
14. There is no dispute that the defendants' predecessor-in-interest Dwarikanath came into possession of the Kha schedule properties by virtue of the said unregistered Kobala. The doctrine of part performance embodied in Section 53-A is an equitable doctrine and it precludes the transferor or any person claiming under him from enforcing any right in respect of the property of which the transferee has taken or continued to be in possession under a contract or instrument of transfer which is invalid for want of registration. In order to attract the provisions of Section 53-A, the plain-tiff must be either the transferor or a person claiming under the transferor.
15. In the instance case, Ganapati who is pro forma defendant No. 3 is the reversioner of Kalibala. Ganapati does not claim title to the suit properties from Kalibala, but from the last full owner, namely. Umesh Chandra Pal, his grandfather. It was contended by Mr. Banerjee that the prohibition contained in Section 53-A would not apply to the plaintiff who did not claim under Kalibala. In support of his contention Mr. Banerjee relied upon a Bench decision of this Court in ILR (1943) 1 Cal 56 = (AIR 1943 Cal 344). In that case the widow by an unregistered Kobala sold the property worth Rs. 200. The transferee was put in possession of the property on the strength of such purchase. A suit was brought by a subsequent purchaser from the daughter for the possession of the property. It was held that the daughter or her transferee was not a person claim-ing through the widow and, therefore, was not debarred under Section 53-A of the Transfer of Property Act from claiming possession of the property. In coming to the above finding, their Lordships relied upon the following observation of Sir John Edge in fine Privy Council decision in Chaudhuri Risal Singh v. Balwant Singh, 45 Ind APP 168 = (AIR 1918 PC 87) :--
'The rule of res judicata as enacted in Section 11 of the Code of Civil Procedure, 1908., is not strictly applicable in this case, as the plaintiffs (the reversionary heirs) 'were not Parties to the suit of Rani Dharam Kunwar' (the Hindu Widow) 'against Balwant Singh and do not claim under a party to that suit.'
16. In spite of the aforesaid observation, it was held by the Privy Council in Risal Singh's case that
''the principle of res judicata has been applied rightly by the courts in India so as to bind reversioners by decisions in litigation, fairly and honestly conducted, given for or against Hindu females who represented estates, as Rani Dharam Kunwar did in her suit against Balwant Singh.'
It follows that a decree obtained against a Hindu widow in a litigation, fairly and honestly conducted, would bind the reversioner. the sole reason being that a Hindu widow represents the estate.
17. A reversioner is an heir of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if he be then living. But during the lifetime of the widow or the limited heir, the reversioner has no right to the estate. The whole estate is for the time being vested in her and she represents it completely. In Janaki Ammal v. Narayanaswami, 43 Ind App 207 = (AIR 1916 PC 117) Privy Council observed that
'her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but * * * * * * so long as she is alive no one has any vested interest in the succession.'
18. A widow or other limited heir does not take merely an estate for life. She can in certain cases dispose of the whole estate inherited by her which she could not do if she were a mere life tenant. What vests in her is not a mere life estate, but the whole estate. Further, she represents the estate completely, and it is for this reason that in certain cases a decree passed against her with reference to property inherited by her binds not only herself, but also the reversioners, though the reversioners were not parties to the suit. In other words the estate of a Hindu widow is an absolute one subject to certain restrictions, (see Mulla's Hindu Law 13th Ed., page 195).
19. Alienations made by a Hindu widow for legal necessity are binding on the reversioners. The widow may enter into a contract of sale and the contract may be specifically enforced by the purchaser against the reversioners after the death of the widow, provided the contract is for legal necessity. Therefore, for all practical purposes the widow is the owner of the estate subject to certain restrictions on her power of alienation of the estate.
20. Section 53-A, uses the expression 'the transferor or any person claiming under him'. If that expression is understood in its literal meaning, it cannot, of course, be said that the reversioner claims under the widow or the limited heir in construing the expression, we should not, however, lose sight of the position of the Hindu widow in respect of the estate which vests in her as stated hereinabove, and also that the section itself is based on equitable considerations. Can it be said that by enacting Section 53-A the legislature intended to deprive a purchaser from a Hindu widow or a limited heir under an instrument of transfer which is invalid for want of registration to claim protection under the section There is no reason to think that such was the intention of the legislature. It will be opposed to the principles of Hindu Law to construe the expression 'the transferor or any person claiming under him' as excluding the reversioners. In Ranchhod Ramnarayan v. Manubai, : AIR1954Bom153 it has been held by Gajendragadkar and Vyas, JJ. that it would be more reasonable to put upon the said expression a liberal construction and the purchaser from her should be entitled to rely upon the provisions of Section 53-A because the reversioners, though they do not claim through the widow, are her successors-in-title of the estate after the widow's death in the sense that the extent of the estate which would devolve on them would always depend on the exercise by her of her undoubted right of disposal of the estate for a legal necessity. Since the reversioner is thus bound by the lawful acts of the widow, the reversioner may be said to come within the expression 'person claiming under him' in the context of Hindu Law. The same view has been taken by the High Courts of Nagpur, Andhra Pradesh and Orissa, (See Balaram v. Kewalram, AIR 1940 Nag 396; Bobba Suramma v. Chandramma, AIR 1959 Andh Pra 568; Karunakar Das v. Mahakuran, AIR 1960 Orissa 170.)
21. In Bhopal Chandra Sarkar's case, ILR (1943) 1 Cal 56 = (AIR 1943 Cal 344) referred to above, the principles of Hindu Law and the equitable principles on which the section is based, have not been considered. In our opinion, the view taken by the High. Courts of Bombay, Nagpur, Andhra Pradesh and Orissa in the aforesaid decisions, and the construction put on the expression 'the transferor or any person claiming under him' are reasonable and consistent with equitable principles and the principles of Hindu Law. With great respect we cannot subscribe to the view expressed in Bhopal Chandra Sarkar's case, but as it is a decision of the Division Bench of this Court, we have no other alternative than to refer the following questions for the decision of the Full Bench :--
(1) Whether the reversioner of a Hindu widow or a limited heir, is a person, claiming under the Hindu widow or the limited heir within the meaning of the expression, ''the transferor or any person claiming under him' as contained in Section 53-A of the Transfer of Property Act ?
(2) Whether the case of Bhopal Chandra Sarkar v. Jagad Bhusan Sarkar, ILR (1943) 1 Cal 56 = (AIR 1943 Cal 344) was correctly decided ?'
22. For the reasons stated in the judgment set out above. I answer question No. 1 in the affirmative and the question No. 2 in the negative.
23. Now, I may consider the further two points argued by Mr. Banerjee, Mr. Banerjee argued that the right conferred on the transferee by Section 53-A was a personal right, that the same was available only to the transferee and not to his successor-in-interest and that the appellants being the successors-in-interest of the original transferee, they were not entitled to invoke the provisions of Section 53-A and protect their possession of the suit properties. This argument completely overlooks the provisions of Section 53-A which specifically confer this right on the 'transferee and persons claiming under him'. The appellants being undoubtedly persons claiming under the transferee, are entitled to rely on the doctrine of part performance as embodied in Section 53-A. This contention of Mr. Banerjee is without any substance and is rejected.
24. It was next argued by Mr. Banerjee that the Bengal Tenancy Act being a special Act containing special provisions for transfers of occupancy holdings and the registration of such transfers under Chapter V thereof, the provisions of the Transfer of Property Act could not be engrafted in Chap. V so as to defeat the said special provisions. Mr. Banerjee relied on Ss. 26-B and 26-C of the Bengal Tenancy Act Section 26-B provides that the holding of an occupancy raiyat or a share or portion thereof, together with the right of occupancy therein, shall, subject to the provisions of the Act be capable of being transferred in the same manner and to the same extent as other immovable property. Under Section 26-C, every transfer except a bequest or a sale in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act shall be made by registered instrument. Mr. Banerjee submitted that in view of Section 26-B the transfer of an occupancy holding has to be made by a registered instrument in the manner prescribed by Section 26-C irrespective of the value of the property transferred. It was contended that Section 26-C supersedes Section 54 of the Transfer of Property Act under which a tangible immovable property worth less than Rs. 100 can be transferred by delivery of possession. It was submitted that If a transferee of an occupancy holding in respect of a transfer not registered as required by Section 26-C of the Bengal Tenancy Act was allowed to exercise the right under Section 53-A of the Transfer of Property Act, it would tantamount to overriding the provisions of Sections 26-B snd 26-C of the Bengal Tenancy Act Mr. Banerjee relied on the well established principle that in case of a conflict between a special Act and a general Act the special Act will prevail. According to him Section 53-A of the Transfer of Property Act will apply only to those cases where the contracts or transfers which are required to be registered under the Registration Act or the Transfer of Property Act have not been registered.
25. The contention of Mr. Banerjee is based on the assumption that there is a conflict between Section 53-A of the Transfer of Property Act on the one hand and Sections 26-B and 26-C of the Bengal Tenancy Act on the other. In my opinion, neither is there any such conflict nor is the application of Section 53-A limited to cases of contracts or transfers which are required to be registered under the Registration Act or the Transfer of Property Act. Section 53-A protects the possession of a transferee under a contract or instrument of transfer for consideration which, though required to be registered, has not been registered. This right of the transferee is available only against the transferor or any person claiming under him. Section 53-A does not provide either expressly or by necessary implication that the protection is available only in a case where the contract or the instrument of transfer is invalid for non-registration of the same under the Registration Act or under the Transfer of Property Act. The contention of Mr. Banerjee that where a document of transfer of an occupancy holding is not registered under Section 26-C, the transferee is not entitled to rely on the equitable doctrine of part performance under Section 53-A, is unsound and cannot be accepted.
26. In the result, the judgment and decree of the courts below are set aside. The suit is decreed only in respect of the 'Ka' schedule properties of the plaint. The title of the plaintiff to the 'Ka' schedule properties is hereby declared and the plaintiff is entitled to recover khas possession of the 'Ka' schedule properties by evicting the defendants therefrom. The suit is dismissed in respect, of the properties described in schedule 'Kha' of the plaint
27. The appeal is allowed in part to the extent indicated above. Each party is directed to bear his own costs through-out.
Arun K. Mukherjea, J.
28. I agree.
Sabyasachi Mukharji, J.
29. I agree.