P KANAKAMMA Vs. BKRISHNAMMA

JUDGEMENT

(1.) The first respondent as the heir to the estate of her deceased father sued on the original side of this Court to recover possession of two houses, one being known as No. 9, Subbarayalu Naidu Lane, and the other as No. 17, Narayana Mudali Street, G. T., Madras. The appeal is concerned only with the first mentioned property. The respondent's case is entirely devoid of merit, but the learned Judge found that in law she was entitled to possession of No. 9, Subbarayahl Naidu Lane, and accordingly passed a decree giving her possession. The learned Judge indicated, however, that no one would be more pleased than he, if, in the event of an appeal being filed, the Judges who heard it should find themselves able to arrive at a different conclusion. We appreciate the learned Judge's feelings in the matter and we regret as much as he that we feel bound to concur in the decree which he has passed.

(2.) The appeal has been placed before a Full Bench as it involves the consideration of the question whether Section 53-A of the Transfer of Property Act has retrospective effect, on which there is a conflict of opinion. If the section has retrospective)effect, the suit must fail, but if it has not, the judgment of the learned Judge will stand. In Kanjee and Mooljee Bros. v. Shanmugham Pillai , a Bench of this Court held that the section has not retrospective effect. This opinion is not shared by the High Courts of Calcutta, Bombay, Allahabad, Lahore and Patna, but after a careful consideration of the arguments, both for and against, we can see no justification for departing from the opinion already expressed by this Court.

(3.) The facts are not in dispute. Ankara Ramiah Chetty, the father of the respondent, died on the 17 March, 1901. He was survived in addition to the respondent by has widow, Seethamma, and his elder daughter, Andalamma, who was the mother of the appellants. It was the intention of Ankam Ramiah Chetty to settle on each of his daughters a house, provided that they married the bride-grooms selected by him. He died before the marriages took place, but he directed his widow to carry out his intentions. On the 12 June, 1902, his widow executed a document in favour of Andalamma in which she agreed to convey to her the house with which this appeal is concerned, on the condition that she married Divale Venkatesaperumal Chetty, the bridegroom chosen for her by the deceased. Divale Venkatesaperumal Chetty is not a party to the appeal, but he was the first defendant in the suit. The document made it quite clear that in doing this the widow was fulfilling the wishes of her deceased husband. The marriage took place and Andalamma was given possession of the house. She lived there with her husband until she died on the 5 November, 1918, and her daughters continued in possession after her death. Unfortunately Seethamma neglected to execute a formal conveyance in favour of Andalamma and the respondent is taking advantage of this.