KAKULAM SUBRAHMANYAM Vs. KURRA SUBBA RAO

JUDGEMENT

(1.) This is an appeal from a judgment of the High Court of Judicature at Madras dated 22 - 11 - 1943, affirming the judgment of the District Judge of Guntur dated 20 - 4 - 1942, who had allowed the respondent's appeal from the judgment of the Subordinate Judge of Bapatla dated 31 - 7 - 1939.

(2.) Leave to appeal to His Majesty in Council was given by the High Court of Judicature at Madras on the ground that the case involved a substantial question of law as to the true construction of S. 53A, T. P. Act. That section is in the following terms: "53A. Part Performance - Where any person contracts to transfer for consideration any immoveable 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 contract, 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 therefor 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 to a transferee for consideration who has no notice of the contract or of the part performance thereof."

(3.) The facts giving rise to this appeal are not now in dispute, having regard to the findings of the Courts in India. The respondent and his father constituted a Hindu joint family. The respondent's father died on 4 - 10 - 1935, leaving him surviving his widow and the respondent, who was then and is still a minor.