YENUGU ACHAYYA Vs. ERNAKI VENKATA SUBBA RAO

JUDGEMENT

(1.) THE Judgment of the Court was delivered by the Hon'ble THE Chief Justice. Defendants 1 and 2 have preferred this appeal against the decree and judgment of the Court of the Subordinate Judge of Kakinada confirming that of the District Munsif, Kakinada, in O. S. No. 266 of 1951 a suit filed by respondents 1 and 2 for a declaration that they were entitled to the surplus sale proceeds in court deposit in O. S. No. 124 of 1945 on the file of the same Court. THE facts that gave rise to the appeal, may be briefly stated. 10 acres of Zamindari jeroyiti land in Chinnayapalem village known as Peddagaruvu originally belonged to the father-in-law and the husband of the 2nd defendant, Yenugu Achayya and Apparao. On 18-2-1939 they executed a sale deed Ex. A-8 conveying the said land in favour of the plaintiffs and put them in possession thereof. It is not disputed that the consideration was also paid to the vendors. As the 2nd defendant's husband Apparao suddenly died, the document could not be registered within the time prescribed. After his death, though an attempt was made to get it compulsorily registered, for one reason or other, it could not be done. Subsequent to the sale the plaintiffs and the other members of their family, defendants 3 to 6, partitioned their family properties including the said land and, in the partition, the land was allotted to the plaintiffs' share and they were enjoying the same. THEy leased it out to tenants and also paid the taxes due thereon. Meanwhile, the 1st defendant, who was interested in the holding of which the aforesaid land formed a part, paid the taxes due on the entire holding and filed O. S. No. 124 of 1945 on the file of the District Munsif's Court for contribution. To that suit 1st defendant and defendants 2 to 6 were made parties. THE 1st defendant alleged therein that the plaintiffs were in possession and enjoyment of Peddacheruvu in pursuance of the sale deed executed by the husband of the 2nd defendant. Though the decree was for a sum of Rs 321/- the land in the possession of the plaintiffs was sold and a sum of Rs. l,025/- was realised. THE 1st defendant drew out a sum of Rs. 321/- from the sale proceeds and the balance of Rs. 704/- was in c m . THE 2nd defendant filed an application under Rule 165- of the Civil Rules of Practice for drawing out the amount. THE plaintiffs resisted that application on the ground that the sale proceeds related to tke property that was sold to them by the 2nd defendant's husband and her fathertin-law and that they were in possession thereof at the time when it was sold in court auction. THE learned District Munsif directed the parties to a separate proceeding to establish their right to the land to enable them to claim the money in court deposit. THE plaintiffs thereafter filed O. S. No. 266 of 1951 for a declaration that they were entitled to the surplus proceeds in court deposit. Both the courts, relying upon the provisions of Section 53-A of the Transfer of Property Act decreed the plaintiff's suit. Hence, the appeal. Learned Counsel for the appellants contends that Section 53-A of the Transfer of Property Act gave statutory recognition to a defensive equity and that the said provisions can, therefore, be relied upon by a transferee as a defendant but not as a plaintiff. As the arguments turn upon the provisions of Section 53-A, it would be convenient to read the section. Section 53-A: 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 the transferee has performed or is willing to perform his part of the contract, THEn, notwithstanding that the contract, though required 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, 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, other than a right expressly provided by the terms of the contract ; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. It is not necessary to consider the pre-existing law of part performance as it obtained in India or in England, for after the enactment of Section 53-A laying down the limits of the doctrine, we are only governed by the said provisions. THE necessary conditions for the application of the section are (i) there is a contract to transfer immoveable property for consideration, (ii) the contract is signed by or on behalf of the transferor, (iii) the terms can be ascertained with reasonable certainty from the document, (iv) the transferee is put in possession or if he has been already in possession continues in possession, (v) he has done some act in furtherance of the contract and (vi) the transferee has performed or is willing to perform his part of the contract. If the aforesaid conditions are fulfilled 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 that property. This Section does not, evin if the conditions laid down therein are complied with, convey title to the transferee. Notwithstanding the section title can be transferred only after the registration of the document. THE provision prevents a transferor frdm enforcing his rights in respect of the property against the transferee but enables him to sue the transferee upon the covenants contained in the document. In short, the mutual convenants will be operative, though title does not pass under the document. THE section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee any rights in respect of the property and this bar does not depend upon the array of the parties. THE transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property. Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the proerty. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. THE utility of the section or the rights conferred thereunder should not be made to depend on the manoeuvering for positions in a Court of law; otherwise, a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as as word but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield. On the question raised in the case there is a decision of Patanjali Sastri J. (as he then was) in Raghava Rao v. Gopala Rao. THE facts there were ; the appellant and the respondent were two of the five brothers, who originally formed a joint Hindu family. Two of the brothers separated earlier but, subsequently there was a partition among the rest. THE respondent's case was that the property in suit was allotted to his share and that the appellant unlawfully trespassed upon it shortly before the suit. THE suit was filed for possession of the said properties. THE learned Judge held that the document, whereunder the partition was effected, was not registered and, therefore it was not admissible in evidence. THE learned Judge further held that on the basis the parties were co-owners, one of the co-owners could not file a suit for eviction on the ground that he was in possession. It was then contended before the learned Judge that the plaintiff was entitled to possession under Section 53~A of the Transfer of Property Act. In dealing with that argument, the learned Judge made the following observations: