GAJADHAR MISIR Vs. BECHAN CHAMAR

JUDGEMENT

(1.) This is a second appeal by a plaintiff whose suit has been dismissed by the two lower Courts. The facts which have been found by the lower appellate Court are as follows: A person Janki was stated to have been the owner of an agricultural plot No. 444 in the village area 65 acres. The question of the proprietary title of Janki in this plot was not in dispute, but it does not appear that any proof was put on the record that he had proprietary title in that plot. He may have been an owner of the plot as "haqiat mutfarka," but there is no copy of the khewat to show that, and the lower Courts proceeded on the assumption that he was the owner and had powers of transfer. On 30 June 1900 he executed a usufructuary mortgage of this plot to one Dukhi. On 1 June 1901, Janki executed an unregistered sale deed of his equity of redemption in favour of the defendants. As the sale consideration is stated to be Rs. 199, in this deed, registration was required by Section 54, T.P. Act, and Section 17(b), Registration Act, both of which require a registered instrument for a consideration of Rs. 100 or upwards. The defendants redeemed the mortgage of Dukhi in due course and entered into possession of the plot. Subsequently on 2 February, 1919, Janki again sold the same equity of redemption by Gajadhar when he made a registered sale-deed. Gajadhar, plaintiff, has now brought this suit for redemption of the original mortgage of 30 June, 1900, treating the defendants as mortgagees. The defendants pleaded that they were in possession not as mortgagees, but as real owners under the sale-deed of 1 June 1901 in their favour. The two lower Courts have held that the plaintiff purchased the property with knowledge of the prior sale in favour of defendants and therefore under the doctrine of part performance in Section 53-A, T.P. Act, the plaintiff is not entitled to any relief.

(2.) In second appeal the sole contention of Learned Counsel has been that Section 53-A, T.P. Act, is not retrospective and cannot affect the transaction in question. For this proposition Learned Counsel has relied on a ruling reported in Kanji and Moolji Bros. V/s. Shunmugam Pillai A.I.R. 1932 Mad. 734. In this ruling on p. 736, Col. 1, the Madras High Court held that the section would not be retrospective on the following grounds: Their Lordships of the Judicial Committee in Young V/s. Adams (1898) A.C. 469 have stated that retrospective effect ought not to be given to a statute unless an intention to that effect is expressed in plain and unambiguous language. Judged by that test Act 20, in our opinion, fails to disclose an intention that Section 53-A was to have a retrospective effect.

(3.) The ruling therefore held that Act 20 of 1929, which introduced Section 53-A, into the Transfer of Property Act by Section 16, Amending Act, did not have a retrospective effect as regards transfers made prior to 1 April 1930, the date on which the Amending Act, came into force. Reference was also made to a Full Bench ruling of this Court reported in Girja Nandan V/s. Hanuman Das , in which three learned Judges against two learned Judges held that the Transfer of Property Amendment Act, 27 of 1926, was not retrospective in its nature so as to apply to documents executed prior to its coming into force. That was a prior Transfer of Property Amending Act, and the Amending Act, with which we are concerned. On p. 934 (of 24 A.L.J.), Daniels, J., held as follows: Where the legislature inserts a new definition in an existing Act the effect of which is to define a term previously undefined, it would ordinarily be held that the definition was intended to be retrospective, more particularly when the preamble of the Act inserting it declared that it was expedient to explain the law, but where the new definition has the effect of repealing a previously existing and inconsistent definition then in the absence of clear words showing the contrary intention the new definition will apply only from the date on which the new Act came into force and all documents executed prior to that date will be governed by the definition then in force.