ANANTHOTH GOPALAN Vs. ERAM VEETTIL KANARAN AND ANR.

JUDGEMENT

(1.) THE jenmam right in the suit properties belongs to defendant 2. In May 1943 he put defendant 1 in possession of the properties under an oral lease. The lease was apparently for a period of one year. On 30 -6 -1944, defendant 2 executed a kanom kuzhikanam in favour of deft. 1. See Ex. D. 1. The document refers to the oral demise of 9 -5 -1943, admits receipt of the kanom amount of Re. 1 and demise fee of Rs. 125 and proceeds to confer kanom kuzhikanom right for a period of 12 years. But this document was not registered. On 24 -7 -1944, defendant 2 executed a registered kanom kuzhikanom deed in favour of the plaintiff (Ex. P. 1). On the strength of Ex. P. 1 the plaintiff sued to recover possession of the suit property. The District Munsif of Nada -puram dismissed the suit. His appeal to the Subordinate Judge of Tellicherry having failed, he has come up to this Court.

(2.) ONE of the defences, which defendant 1 set up, was that he is entitled to the protection conferred by Section 53 -A, T. P. Act. This plea was accepted by the learned Subordinate Judge. Mr. Nambiar, the learned counsel for the appellants argued that the learned Subordinate Judge was wrong in having done so. He raised in the main two points. One was that before defendant 1 can be given the protection conferred by Section 53A, T. P. Act, it must be shown that the plaintiff had notice of the contract in favour of defendant 1. Dealing with the finding of the Courts below that the plaintiff had such notice, Mr. Nambiar stated that the finding was based upon a misapprehension of the evidence. The evidence of defendant 1 was that some time after Ex. D. 1 had been executed he was travelling in a bus with the plaintiff and the plaintiff's father and that during the course of the journey, he informed the plaintiff about the execution of Ex. D. 1 and also about the payment of money. This is what he stated in chief:

(3.) THE second contention of Mr. Nambiar was that the payment of Rs. 125 which Ex. D. 1 recites, is not sufficient part performance within the meaning of Section 53A, T, P. Act. Para. 2 of Section 53A requires that the transferee should have done some act in furtherance of the contract. Mere payment of money, he said, would not be an act in furtherance of the contract. In support of his argument he referred to the decision in - - 'Maddison v. Alderson',, (1883) 8 AC 467 (B). At pp. 478 and 479 the following passage occurs: