MASHA ALLAH KHAN Vs. SALAMAT-UZ-ZAMIN BEGAM

JUDGEMENT

(1.) The facts of this case as found in both courts are simple, but the question of law is one of some importance. By a duly registered sale-deed, the defendant, Musammat Salamat-uz-Zamin, about the 14th of August, 1905, sold and transferred to one Muhammad Ali Jan Khan (inter alia) the two and half biswansis of land now in suit. On the same date Muhammad Ali Jan Khan by another duly registered sale-deed, sold and transferred to Musammat Salamat-uz-Zamin (inter alia) a certain shop in Bulandshahr. The value of the shop on the said date has been found to have been Rs. 125, and the value of the land now in suit has been found to have been Rs. 100. Shortly after these two sale-deeds, Muhammad Ali Jan Khan and the defendant verbally agreed to re-transfer or to exchange these two properties which each had thus purchased from the other, and each remained in possession of what had originally been transferred by the deeds. Neither purchaser had any property in the district in which the property originally transferred to him by his deed was situate, and, although it is not found, and therefore is not material to any point we have to decide, it is probable that the original inclusion of the two properties in the deeds of sale was only with the object of defeating, or technically complying with, the registration law. From the date of the agreement to re-transfer, or exchange, the two remained in possession of the original properties, and treated them as their own. Muhammad Ali Jan Khan was a mukhtar. He obtained mutation of the other properties purchased by him from the lady, but not of the land now in suit. He died about five years afterwards, and at the date of his death the shop which he had agreed to take back in exchange, being still in his possesssion, was treated as part of his inheritance, and in February, 1911, was sold by his heirs to his widow, with the rest of his property in lieu of dower. In fact every thing was done as regards the property in suit and the shop which it was agreed to exchange for it, as though the exchange had been formally carried out, as it ought to have been, by a registered instrument under Sections 118 and 54 of the Transfer of Property Act (IV of 1882), except that there was no writing of any kind on either side. The plaintiffs, who are some of the heirs of Muhammad Ali Jan Khan and who sue in that capacity, now claim the land originally sold and transferred to him by the said deed. Both courts below are in agreement as to the facts above stated. The first court dismissed the suit. The lowe appellate court reversed this decision upon the ground that the exchange was "not valid," or in other words, that there was no transfer by a registered instrument and no delivery of possession. The question which we have to decide is whether under the general principles of law in this country a transaction of this kind, so acted upon by the parties, has become effectually binding upon them, in spite of the fact that the provisions of Sections 54 and 118 have not been complied with.

(2.) This question turns upon the further question whether the dicta of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli (1914) I. L. R., 42 Calc., 801 (817-18.) apply to this and other similar cases. In England if the question arose under the analogous case of the Statute of Frauds, and the contention was that no interest in the land had passed, because the contract not being in writing, did not comply with the provisions of the Statute, she plaintiff s position would be quite untenable. As to this the law has been well settled since Maddison v. Alderson (1883) 8. A C., 467., where Lord Selborne, with the concurrence of the other members of their Lordships House said that in a suit founded on performance, or part performance, the defendant (in this case the plaintiff) is "really charged upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the Statute of Frauds) upon the contract itself. If such equities were excluded, injustice of a kind which the Statute cannot be thought to have had in contemplation would follow."

(3.) The case in the Privy Council above mentioned arose out of some mortgage transactions of 1848, and 1871, respectively. Differences arose between the parties. A suit was brought and a compromise was reached by which the mortgage debts were to be paid off and the properties were to be legally conveyed by the mortgagor to the parties entitled to them in certain shares. A decree was made that the suit was decided in terms of the compromise and struck off. No conveyances were executed in completion of the contract of compromise, nor was the compromise registered. But it was acted upon by the parties for a period of from 30 to 40 years. The Privy Council held that, though the compromise and decree taken together might be considered defective or inchoate as a validly concluded agreement the acts, of the parties had been such as to supply all defects. It was strongly contended that the document of compromise being unregistered was inadmissible, that oral evidence was inadmissible that there had been no transfer, and that the acts of the parties conferred no title. In the judgement of their Lordships, delivered by Lord Shaw, it was pointed out that at that date no written conveyance was required by the law of India, and that the Transfer of Property Act, 1882, did not apply. But "in view of the argument strongly pressed upon them their Lordships think it right to say," that "the laws of India and of England follow the same rule" and, following the principle of Maddison v. Alderson (1883) 8 A, C., 467., "equity will support a transaction clothed imperfectly in those legal forms to which finality attaches after the bargain has been acted upon."