SRIMATI HARIDASI DEBI Vs. PBMOOKERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession of land upon establishment of title. The disputed property belonged to one Prannath Chakraverty who left three sons Bisseswar, Panchanon and Baroda. Baroda died childless with the result that the one-third share which he had taken by right of inheritance became vested in his two brothers. Thereafter Panchanon died, leaving a widow who is the plaintiff in this litigation. The surviving brother Bisseswar subsequently died, after he had made a testamentary disposition of his properties. An application was made by the defendant for probate of his will. The application was opposed by the plaintiff. On the 24 August, 1912, the parties to the probate proceedings came to terms and a week later the probate was granted, inasmuch as the lady withdrew her opposition. On the 7 June, 1918, the lady instituted the present suit to recover possession of the one-half share of the property which belonged to her husband. Prima facie, there is no answer to the claim. The husband of the plaintiff was unquestionably entitled to one-half share which upon his death was taken by his widow by right of inheritance. The defendant, who claims under the will of Bisseswar resists the action on the ground that, by reason of events which had happened in the probate proceedings, the lady was not competent to maintain her claim. The Subordinate Judge overruled this contention and decreed the suit. Upon appeal, the District Judge has taken a different view and has dismissed the suit. We are of opinion, that the view taken by the District Judge cannot be supported.

(2.) The appellant has urged that as the property in dispute exceeds Rs. 100 in value, the undoubted title of the plaintiff could have been transferred by her only in accordance with the provisions of the Transfer of Property Act, namely by means of a registered conveyance. In support of this view reference has been made to the decision of the Judicial Committee in Maung Shew Goa V/s. Mating Inn A.I.R. 1916 P.C. 139, which was applied in Gangaram Rama V/s. Sakkaram . As there is no registered conveyance in this case, the title, prima facie, continues in the plaintiff.

(3.) There is no further allegation that the plaintiff agreed, at any time, to convey to the defendant her interest in the estate of her husband. No question can thus raise as to possible right of the defendant to claim specific performance of an agreement to sell. There is, consequently, no room for the application of the doctrine of Walsh Vs. Lonsdale [1882] 21 Ch. D. 9, as explained in Hari Pada Ghose V/s. Miod Krisna Ghose A.I.R. 1921 Cal. 383, and Aminullah Chaudhury V/s. Mahabbat Ali A.I.R. 1921 Cal. 519 That principle is that when in pursuance of an agreement to transfer property, the intended transferee has taken possession, though the requisite legal documents have not been executed and registered, the position is the same as if the documents had been executed, provided that specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined.