RUSTOMJI DOSSABHAI BILLIMORIA Vs. BAI MOTI

JUDGEMENT

(1.) THIS is a second appeal from the Assistant Judge of Thana. It raises a point of law which has given rise to a certain amount of difference of opinion amongst the High Courts in India, the question being; whether Section 53a of the Transfer of Property Act, which came into operation on April 1, 1930, applies to transactions which took place before that date.

(2.) IN the present case the plaintiff transferred to the defendant certain immoveable property in February and March, 1926, and the purchaser was let into possession, but the documents of transfer were not registered. This suit was filed on June 20, 1935, and by it the plaintiff, i. e. the vendor, seeks to recover possession of the property, her case being that the defendant cannot rely on the transfers to himself because they are not registered and cannot be given in evidence by reason of Section 49 of the INdian Registration Act. The answer of the defendant is that he is entitled to give his transfers in evidence: under Section 53a of the Transfer of Property Act. The learned trial Judge held that the defendant was entitled to rely on Section 53a of the Transfer of Property Act, but in appeal the learned Assistant Judge held that Section 53a could not operate upon a transaction which took place before that section was introduced by the legislature. It is conceded on this appeal that the transfers in question are such as to fall within the operation of Section 53a, and the only question is whether the section has any retrospective effect.

(3.) NOW, what the section provides is that "where any person contracts to transfer for consideration any immoveable property "and the transfer contains the provisions specified in the section, "then, notwithstanding that the contract, though required to be registered, has not been registered, 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. "the section in the opening words" where any person contracts" uses the present tense. It does not say" shall have contracted "or" shall hereafter contract", and I think the use of the present tense denotes that the question whether the section is to operate or not should be answered at the time when it arises, that is when the suit is filed. The section in effect provides that where there is a contract of a certain nature, then certain results are to follow. That seems to me to be the natural meaning of the language, and that is the meaning which has been accepted by this Court in Tukaram v. Atmaram (1938) 40 Bom. L. R. 1192, by the High Court of Patna in Wakefield v. Kumar Rani Sayeeda Khatun (1936) I. L. R. 15 Pat. 786, and by the High Court of Calcutta in Ashutosh v. Nalinakshya [1937] A. I. R. Cal. 467, to mention only some of the cases. The High Court of Madras in Kanjee and Mooljee Bros. v. Shanmugam Pillai (1932) I. L. R. 56 Mad. 169 has taken a different view, and has held that Section 53a in its terms has no retrospective effect. I am unable to agree with that view. I prefer the view taken by the other High Courts.