LABHCHAND SHANKARLAL Vs. SHARIFABI

JUDGEMENT

(1.) THE question that arises for consideration in this appeal relates to the construction of the expression "signed by him or on his behalf" occurring in the first part of Section 53a of the Transfer of Property Act, hereinafter referred to as the Act. Following facts give rise to this question. One Shankarlal, father of plaintiff-appellants 1 and 2 and husband of plaintiff No. 3, agreed to sell field S. No. 91/1, area 4 acres 15 gunthas, situate in mouza Khel Dalvi in Jalgaon taluq, district Buldana, for a consideration of Rs. 300/-, to one Sk. Yakub, husband of defendant-respondent Sharifa Bi. A draft sale-deed embodying all the terms of the contract was duly signed by Shankarlal. Sk. Yakub paid the entire consideration to Shankarlal and possession of the Held in suit was delivered by Shankarlal to Sk. Yakub at the time of the execution of the draft sale-deed, This sale-deed, however, was not registered on account of the sudden death of Shankarlal. Since 16-12-1941 Sk. Yakub and thereafter his widow Sharifabi remained in possession till 7-12-1953, the date on which Shankarlal's two sons Labhchand and Jai-kisan and his widow Sundarabai instituted this suit. The plaintiffs' case in brief was that they were not parties to the document of contract of sale, the field in suit was the ancestral property belonging to the joint family of the plaintiffs and Shankarlal, With Shankarlal as its manager, the family had extensive property and there was no legal necessity for the alienation. The plaintiffs further pleaded that the contract was without consideration and was not for the benefit of the estate. According to the plaintiffs, by virtue of the contract, Sk. Yakub did not get any right, title or interest in the field and his possession was wrongful. They therefore prayed that possession of the field be delivered to them; in the alternative, they pleaded that at least possession of 3/4ths portion of the field, that is then-share in the field, be delivered to them. The defendant denied that the field in question was the joint family property of Shankarlal and the plaintiffs. According to her, it was the exclusive property of Shankarlal. In the alternative, she pleaded that even assuming that the property was a joint family property, Shankarlal who was the karta of the-joint family had entered into the contract for legal necessity. According to her, full consideration was paid and possession had been obtained by Sk. Yakub and the terms of the contract were reduced to writing and were signed by Shankarlal on behalf of the entire family; her possession was therefore protected under Section. 53a of the Act.

(2.) THE facts found are that the field in question was the joint family property, that the transaction of 16-12-1941 was for valuable consideration, that there was legal necessity justifying the transaction and in this sense the transaction was binding on the plaintiffs. The learned Judge of the trial Court, however, held that the defendant was not entitled to call in aid Section 53a of the Act. Sk. Yakub not having acquired any legal title to the field in question, the defendant was bound to restore possession to the plaintiffs. In taking this view the learned Judge has placed reliance on a decision reported in Rattayya v. Chandrayya, AIR 1948 Mad 526. In this view of the matter, the plaintiffs' suit for possession was decreed in the trial Court. On appeal by the defendant, the decree of the trial Court has been reversed. The appellate Court has affirmed the findings of fact recorded by the trial Court. It, disagreeing with the trial Court, took the view that the defendant was entitled to call in aid Section 53a of the Act. In the opinion of the learned Judge the plaintiffs were persons covered by the expression "any person claiming under him" (transferor) occurring in Section 53a of the Act. He therefore allowed the appeal and dismissed the plaintiffs' suit. The plaintiffs have therefore preferred this second appeal and on its being referred to a Division Bench it has come before us.

(3.) AT the outset it must be stated that the learned counsel for the appellants conceded that the right claimed by Sundarabai, appellant No. 3, was claimed under Shankarlal and therefore she was debarred from claiming her share under Section 53a of the Act, but, according to the learned counsel, sons of Shankarlal, Labhchand and Jaikisan, cannot be said to be persons claiming under Shankarlal. The judgment and decree of the appellate Court were therefore vitiated. This contention, no doubt, is well founded. The fact found is that the field in question was the ancestral property in the hands of Shankarlal. That being the position, both Labhchand and Jaikisan had share in the property by virtue of their birth and therefore it cannot be said that the right claimed by Labhchand and Jaikisan in the field in question was claimed by them under Shankarlal. But this position in law is not of much assistance to appellants Labhchand and Jaikisan. It is still to be considered whether they are debarred from instituting this suit under the first part of Section 53a of the Act. In other words, can it be said that the contract of 16-12-1941 has been signed on their behalf by Shankarlal.