GUTTA RADHAKRISTNAYYA Vs. GUTTA SARASAMMA

JUDGEMENT

(1.) THIS is a defendant's appeal against the preliminary decree for partition in O. S. No. 24 of 1946 on the file of the Court of the Subordinate Judge, Masulipatam. The plaintiff is the paternal grandfather of the defendant. The defendant's father was Satyanarayana who died in the year 1921. They constituted members of a joint Hindu family and possessed of immovable properties set out in Schedules A and B annexed to the plaint and some movables. The plaintiff filed the above suit for partition of the family properties and for profits.

(2.) THE defendant inter alia, pleaded that there was a partition of the family properties through the intervention of mediators and he wag put in possession of the properties that fell to his share. He relied upon a document em. bodying the arrangement between the parties. He also resisted the suit on the ground that the plaintiff was precluded from questioning the alleged partition on the doctrine oi part performance. As many as eleven issues were rained in the suit hut it is unnecessary to consider them in detail as the learned advocates confined their arguments before us only on two points. The learned Subordinate Judge held that the letter dated 15th February 1944 alleged to have been executed by the plaintiff was not admissible in evidence. He passed a preliminary decree effect -ing a division into two equal shares of the properties set out in the schedule to the plaint. The defendant preferred the above appeal.

(3.) THE next question raised by the learned advocate raises an interesting point of law, namely, whether tbe doctrine of part performance embodied in Section 53A, T. P. Act applies to partition arrangements. Section 53 -A, T. P. Act reads : '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 tbe transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though it requires 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, tbe transferor or any person claiming under him shall be debarred from enforcing against tbe transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other tban a right expressly provided by the terms of the contract.' 'Transfer of property' is defined in Section 6 of the Act as 'an act by which a living person conveys property, inpresent or in future to one or more other living persons, or to himself and one or more other living persons; and 'to transfer property' is to perform such act.' The necessary condition for the application of Section 58 -A is that the transition must be a contract of transfer for consideration of any immovable property. The question, therefore, is whether a partition is a transfer for consideration within the meaning of the section. There is no direct decision on the interpretation of Section 63 -A in regard to its applicability to a partition, hut the learned counsel relied upon the meaning attributed to the word 'transfer' appearing in Section 53 of the Act and also in other Acts. There is a sharp cleavage of judicial opinion on the question, and a long catena of cases have been cited before us on either side. We shall consider them in some detail in theirchronological order as the reasoning of the learned Judges certainly helps us to arrive at our conclusion.