KUNKALAKUNTA VENIAH Vs. MANDLEM GURAVIAH

JUDGEMENT

(1.) These two appeals arise out of connected suits O.S. No. 1440 of 1919 was a suit brought by M. Guravayya and the minor sons of his deceased brother Ramaguruvayya to recover possession of lands in the possession of the defendant. O.S. No. 199 of 1920 is a suit by the defendant in O.S. No. 1440 for specific performance of a contract to sell entered into by Ramaguruvayya, father of plaintiffs 2 and 3 in O.S. No. 1440. In the first of these suits the plaintiffs alleged that the suit lands were taken on lease by one Nowlpor Periah, that the defendant got into possession and was paying rent for some years but afterwards refused to pay rent or to surrender possession. Both the Lower Courts found against the truth of the alleged lease in favour of the defendant. The District Munsif found that the father of plaintiffs 2 and 3, Ramaguruvayya, had purchased the suit lands under Ex. II from Nowloor Periah, to whom the family had previously sold the same property, in discharge of debts and cash received at purchase. Afterwards, Ramaguruvayya contracted to sell the suit property to the defendant and gave him a receipt (Ex. I) for payment of the purchase money Exs. I and II were executed in 1911. After this the two minor plaintiffs were born. Both the Lower Courts have taken it as proved that Ramaguruvayya became divided in status from his brother, the first plaintiff, before the minor plaintiffs were born and that they kept the suit lands undivided for future partition by metes and bounds.

(2.) The District Munsif dismissed the suit for possession on the finding that Ramaguruvayya entered into, a contract to sell the property to the defendant. In the other suit he gave the plaintiff a decree for specific performance and directed the guardian of the minor defendants to execute a sale deed within four months.

(3.) The District Judge on appeal found that the suit lands formed part of the ancestral property of the joint family and that Ex. A, a sale deed of 1903, formed the root of title in the joint family of the plaintiffs. He also found that there was no satisfactory evidence that the first plaintiff and Ramaguruvayya had sold the property to Nowloor Periah, and therefore Nowloor Periah could not pass any valid title to Ramaguruvayya. Then, as regards the contract to sell, Ex. I, he held that this was only evidence of an agreement to sell and did not operate as a transfer of title. There is no discussion of the sections of the Transfer of Property Act or the Specific Relief Act in the judgment, but the District Judge was appa-, rently referring to Section 54 of the Transfer of Property Act and the provision therein contained that a contract for the sale of immoveable property does not of itself create any interest in or charge on such property. At the time when the District Judge gave his judgment the decision of the Full Bench of this Court in Vizagapatam Sugar Co. V/s. Muthurama Reddi (1923;) ILR 46 M. 919 : 45 MLJ 538 (FB) had not been pronounced. That Full Bench dissented from the previous rulings of two Full Benches in Kurri Veerateddi V/s. Kurri Bapireddi (1880) ILR 29 M 336 and Ramartathan V/s. Ranganathan and pronounced that part performance of a contract by way of delivery of possession coupled with an enforceable night to specific performance was a good defence to an action for ejectment.