SK MAHAMMED HUSHEN Vs. JAMINI NATH BHATTACHARJI

JUDGEMENT

(1.) The facts which are not in dispute in this appeal are these : One Jagabandhu Chakravarti was the owner of the lands which are the subject matter of the present appeal. He borrowed Rs 250 from the defendants and executed a bond hypothecating these lands in favour of the defendants on 10 December 1928 as a security for repayment of the said loan. He then put the defendant in possession of the mortgaged lands in lieu of interest. The mortgage bond, however, was not registered. Thereafter Jagabandhu died. In the year 1912 the plaintiff brought a suit against the heirs of Jagabandhu for recovery of some money and obtained a money decree on 22 May, 1933. This decree was put to execution and the plaintiff purchased the mortgaged lands on 16 February 1934 in execution of the said decree. He then obtained symbolical possession through Court. He could not however get actual possession as the defendant did not allow him to do so. The plaintiff thereafter instituted a suit in the 3 Court of the Munsiff at Habiganj in the District of Sylhet for recovery of possession of the lands purchased by him from the defendant on declaration of his title thereto.

(2.) The trial Court declared the plaintiff's title to the disputed lands but dismissed his claim for khas possession as ha was of opinion that the defendant was protected from eviction by Section 53.A, Transfer of Property Act. The plaintiff appealed to the lower Appellate Court. This appeal was heard by the Additional District Judge of Sylhet. The learned Judge was of the opinion that Section 53-A, Transfer of Property Act, had no retrospective effect and as the usufructuary mortgage bond was executed and the part performance took place before 1st April 1930, on which date Section 53-A came into force, the defendant was not entitled to the benefit of that section. He accordingly allowed the appeal and passed a decree for khas possession by evicting the defendant. Hence this appeal by the defendant. The only point for determination in this appeal is whether the defendant is protected from eviction by virtue of Section 53-A, Transfer of Property Act. This section provides: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the con-tract, taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract though required to be registered has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from -enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

(3.) In this case the instrument of transfer, that is the mortgage bond, was executed on 10th December 1928, but the transfer was not completed in the manner prescribed by law, as the bond was not registered, though it was required to be registered by Section 59, T.P. Act, and Section 17, Registration Act. On account of the non-registration of the bond, the defendant has acquired no legal title as usufructuary mortgagee. The mortgagor or his heirs had therefore the legal right to eject him from the mortgaged lands before 1 April 1930, when Section 53-A, which was introduced into the Transfer of Property Act by Act 20 of 1929 (India Council), came into force. If Section 53-A be applied to a state of facts which came into existence before it came into force, and the defendant be given the benefit of this section, the plaintiff's right to eject the defendant existing before the section came into force would be taken away. Philosophical writers denied that any Legislature ought to have power to pass retrospective statutes. The exercise of such power under ordinary circumstances is bound to lead to great injustice. We cannot therefore presume that the Statute which takes away any existing right is intended to apply to a state of facts which came into existence before its commencement. On the other hand, statutes changing the law are presumably " intended to apply to a state of facts coming into existence after the Act": per Cockburne C. J. in (1877) QBD 269 Reg. V/s. Ipswich Union (1877) 2 Q B D 269. When the effect of the statute would be to make a transfer valid, which was previously invalid, to make an instrument, which had no effect at all and from which the party had liberty to depart as long as he pleased, binding...the prima facie construction of the Act is that it in not to be restrospective : per Lord Blackburn in Smith V/s. Callander (1878) AC 5822 at p. 603. But It is obviously competent for the Legislature if it pleases in its wisdom to make the provisions of Act .... retrospective : per Lord Ashbourne in (1901) A C 2973 at p. 305.