DIWALI Vs. MOHANBAWA ISHVARBAVA

JUDGEMENT

(1.) The appellant was the original plaintiff. Her suit for maintenance was allowed by the trial Court but dismissed by the first appellate Court on the ground that although her predecessor-in-title Parbat Bechar had mortgaged the property in question to Hargovan Rughnath the doctrine of part performance enunciated in sec. 53A of the Transfer of Property Act applied because there was an unregistered document of sale dated 1918 A. D. which was subsequent to the mortgages. The learned Judge held that in view of the doctrine of part performance the plaintiff was not entitled to redeem the mortgages executed by her predecessor-in-title. He held that the respondents were entitled to the benefit of the principle enunciated in sec. 53A of the Transfer of Property Act and he therefore dismissed the plaintiffs suit.

(2.) The learned counsel for the appellant has relied on Tribhovan Hargovan v. Shanker Desai 45 Bom. L. R. 866 which was a decision of a single Judge. He held that in the case before him the doctrine of part performance did not apply because there was no valid contract the contract being unregistered. Section 53A of the Transfer of Property Act reads as follows:-

(3.) Under section 17 of the Indian Registration Act it is only a contract of final sale that requires to be registered. A contract to sell does not require to be registered. If a contract of sale is unregistered it can be regarded as a contract to sell which does not require to be registered. It is because that document is unregistered that sec. 53A has been enacted. To hold that a contract of sale cannot be looked at because it is unregistered would be contrary to sec. 53A. To so hold would render sec. 53A of the Transfer of Property Act and sec. 49 of the Registration Act meaningless and nugatory. Section 53A of the T. P. Act specifically applies where notwithstanding that the contract though required to be registered? has not been registered or where there is an instrument of transfer and the transfer has not been completed in the manner prescribed therefor by the law for the time being in force.