BCHIKKANNASWAMY Vs. HAYAT KHAN

JUDGEMENT

(1.) The property concerned in this case, a piece of wet land, was mortgaged with possession in favour of the defendant by its former owners under two deeds of mortgage Exs. C dated 13-5-1953 and VII dated 30-6-34, for Rs. 350/- and Rs. 400/- respectively. Later on, under two documents Exs A and XI dated 29-4-41 and 5-4-41, they sold the property to the plaintiff. Subsequently" the plaintiff executed two sale deeds Exs II and III dated 12-5-41 in favour of the defendant by which the defendant's mortgage debt was discharged and the plaintiff received some monies in order to make up the full purchase money. Those two deeds remained unregistered though they were handed over to the defendant. The plaintiff brought a suit in the Court of the Munsiff of Nanjangud for redeeming the defendant in respect of his mortgages and for possession of the property and mesne profits after depositing in Court Rs. 750/- being the mortgage amount due to the defendant in respect of the a'foresaid two mortgages. The defendant relied on his two sale deeds and the consideration receipts which supported them and denied that the plaintiff had any subsisting title to the property to enable him to redeem. The plaintiff in reply stated that he had not executed any sale deeds as alleged and that he had not received any consideration for any such sales. He reiterated what be had said in the plaint that even if his signatures had been taken to some deeds, purporting to be sale, deeds, he had never intended to sell the property in suit to the plaintiff. The Munsiff dismissed the plaintiff's suit, but on appeal the Subordinate Judge reversed that decision and the defendant has come up in second appeal.

(2.) Both the Courts below have held that Exs II & III and the consideration receipts which go with them viz. Exs. V & VI, are all genuine; and that the story of the plaintiff that they were taken from him by some kind of fraud is not true. They have also found that the plaintiff must have received consideration as recited in those documents. Exs II and III state that the plaintiff has sold parts of the suit survey number comprised in them for Rs. 600/- in each case, and has left Rs. 350/- under Ex II and Rs. 550/- under Ext III with the defendant in full payment of the mortgage debts In" his favour, and has received the balance of Rs, 250/- and Rs. 50/respectively of the sale price. They recite further that the whole of the purchase money had thus been received by the plaintiff, that the properties, sold were already in the possession of the defendant and that he may enjoy the same peacefully, paying kandayam. On the facts, therefore, there is no doubt that the plaintiff has sold the property to the defendant, agreeing to the purchase money being 'appropriated towards discharge of the defendant's mortgages, and has received the balance of purchase money. The ground, however, on which the plaintiff claims relief in this suit is that in spite of this, he still continues to be the owner of the property and that the defendant has to redeem him while the defendant relies on Section 53-A, Transfer of "Property Act, to resist the plaintiff's claim.

(3.) Section 53-A which gives legislative sanction to the equitable doctrine of 'Part Performance' provides that 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 performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has 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 contract.