MANILAL MAGANLAL Vs. BAI CHAMPA

JUDGEMENT

(1.) THIS is a first appeal from the decision of the First Class Subordinate Judge at Ahmedabadi and the principal question involved is whether specific performance of an agreement executed by the original first defendant should be granted in favour of the plaintiff. The short facts are that the plaintiff, who was a minor, was to be married to defendant No.2. Defendant No.1 was the great-aunt of defendants Nos. 2 and 3, who were brothers. Defendant No.3 had been married before and a house had been transferred to his name. On the occasion of the betrothal of the minor plaintiff to defendant No.2 the palla of Rs. 1,000 was fixed and Rs. 600 more were agreed to be paid in cash. The ' Chanlla' took place on December 2, 1929. At about that time there was a talk of transferring the house by defendant No.1 to the name of the; plaintiff and defendant No.2, and defendant No.1 directed the purchase of a stamp paper in that connection. An agreement, the terms whereof I shall presently discuss, is stated to have been executed by defendant No.1 on December 3, 1929. The original agreement bears the thumb-mark of defendant No.1 and that signature is amplified by defendant No.3. It is also attested by independent witnesses. On the next day (December 4, 1929) another document in respect of the payment of the palla money was drawn up and executed. The marriage took place on December 14, 1929. Defendant No.1 contended that shortly before the marriage procession started the plaintiffs father intimated that he would not give the girl in marriage unless the document regarding the transfer of the house was executed, and that under the circumstances she put her thumb-mark on the same. In the memorandum of appeal various points have been raised. Mr. Desai, who appears on behalf of the appellant, did ask for leave and urged two more points in support of the appeal. The bulk of the argument was on those additional points.

(2.) HE first contended that the document itself created rights in immoveable property and therefore compulsorily required registration under the Indian Registration Act. The document not being registered not only did not affect any immoveable property but was not admissible in evidence under Section 49 of the Indian Registration Act. The agreement being in writing, the terms thereof cannot be proved orally under the Indian Evidence Act. HE therefore contended that the suit must fail. When he was pointed out that the addition of the proviso to Section 49 of the Indian Registration Act altered the situation, it was urged on behalf of the appellant that the amendment was not retrospective, and that as the document was executed before April 1, 1930, the rights of the parties were not controlled by the proviso. The second part of his argument was that in any event the terms of the document were indivisible, and that therefore if on account of certain provisions in the document it was not admissible in evidence, the whole of it should be excluded. As regards the first contention, after considerable controversy, it was held in Tukaram v. Atmaram (1938) 40 Bom. L. R. 1192 that Section 53-A of the Transfer of Property Act (which was enacted by the Amendment Act XX of 1929) is retrospective in effect. Our attention has been drawn to Kanjee and Mooljee Bros. v. Shanmtnugam Pillai (1932) I. L. R. 56 Mad. 169. The learned Judges there held that Section 53-A was not retrospective. There are observations in that case to the effect that the proviso to Section 49 of the Indian Registration Act is equally not retrospective. The proviso to Section 49 of the Indian Registration Act, in my opinion, is necessarily retrospective. It is a rule of evidence and normally as it does not create or defeat substantive rights, according to the recognised canons of construction, it should be accepted as retrospective. No authority is cited in respect of the proviso to Section 49 of the Indian Registration Act barring the observations in Kmjee and Mooljee Bros. v. Shanmugam Pillai. We prefer to follow the decision of our Court in Tukarum v. Atmaram. In my opinion as the proviso has a retrospective effect, the document is admissible in evidence. This suit was filed after April, 1930, and there arises no controversy about the extent to which the proviso can be made retrospective. The first contention urged on behalf of the appellant therefore fails.

(3.) THE alternative contention was that under Section 28, Clause (b), of the Specific Relief Act specific performance in any event should not be granted under the circumstances of the case. This argument, in my opinion, is not justified ; nor is it helpful. In a case of this kind if specific performance is not ordered, the plaintiff will be entitled to claim damages which under the circumstances would be the value of the house. THEre is no other impediment to executing a conveyance transferring the immediate ownership of the house to the plaintiff, and therefore in my opinion the contention is not helpful. Besides I am unable to find adequate grounds for upholding the contention that there was any undue pressure or misunderstanding. Defendant No.1's own evidence is that at about the time of the betrothal there was a talk of transferring the house in favour of the plaintiff, and that she herself directed the purchase of the stamp paper. She further admitted that she was asked to sign the document shortly after the betrothal but she had refused. Ultimately she signed it It was signed in the presence of defendant No.3, on her own evidence. Accepting therefore the bulk of the statement of defendant No.1, she had ample opportunity to consider her own position and to consult defendant No.3. Having taken into consideration all the facts she agreed to execute and did execute the document. I see no reason therefore why specific performance should not be granted.