PLD 1959 (W (PLP)

Dates of hearing : 23rd February 1959 ; 2nd & 9th March 1959. This is a plaintiffs' appeal arising out of a suit for redemp tion of a mortgage. The facts shortly put as given in the plaint are these: On 3rd April 1942 the plaintiffs mortgaged three survey numbers with the respondent with possession in lieu of Rs. 200 for a period of six years. According to the plaintiffs a statement to that effect was made to the Mukbtiarkar of Dadu. The state ment was ostensibly for absolute sale but there was a condition that the respondent would return the plots in question after six years 'on payment of amount due to the respondent. After the expiry of six years, the appellants asked the respondent to return the land. The respondent, however, failed to do so with the result that the appellants were obliged to file a suit for redemption of mortgage in 1951. The plaintiffs further con tended that the transfer being of immovable property valued at over Rs. 100, it requires registration As there was no registration, transaction in question is invalid and the plaintiffs are entitled to the recovery of possession. Mr. Mazhar Ali, the learned Advocate for the appellants, confined his argument only to the question whether the defendant respondent was protected by the provision of section 53‑A of the Transfer of Property Act. I have carefully considered this question and have come to the conclusion that the doctrine of part performance does not afford any protection to the defendant respondent. In order to appreciate the contention of the learned Advocate for the appellants, it would be convenient to reproduce the statement which was made before the Mukhtiarkar, Dadu on 3rd April, 1942 (Exh. 40) :‑ "We . . . . . do hereby of our own free will and pleasure state as under :‑ That we own Re. 0‑6‑1 share in survey No. 400 and Re. 0‑4‑0 share in Survey Nos. 406 and 408 situated in Deh Baghban, which we gave by way of an absolute sale to Allahdino son of Allah Jurio Mirabhar on receipt of Rs. 200 in cash. We have received the amount and appropriated the same. We have therefore no objection if the above‑mentioned land is transferred in the name of the vendee." The learned Sub‑Judge, while considering the application of section 53‑A of the Transfer of Property Act observed as under :‑ "It is an admitted fact that the transaction was effected by the statement given by the plaintiffs before the Mukhtiarkar on 3‑4‑1942 without a registered deed. The transaction was therefore not valid to effect a transfer of interest in the plots in suit ; but the defendant is protected by the provisions contained in section 53‑A of the Transfer of Property Act. The transaction was effected by means of the statement given by the plaintiffs before the Mukhtiarkar, Dadu on 3‑4‑42 from which the terms necessary to constitute the transfer can be ascertained. The statement was duly signed by each of the plaintiffs, who in performance thereof delivered possession of the plots in suit to the defendant who to perform his part of the contract has paid them a cash of Rs. 200 as con sideration. Thus all the ingredients required for the application of the doctrine of part performance' are present in the case . . . . . . . . . . . . . . . . . . . The plaintiffs, the transferors, cannot accordingly enforce any right in respect of the plots in suit other than a right provided by the terms contained in their statement dated 3‑4‑1942." The learned District Judge in appeal has not given any finding on this question whether section 53‑A of the Transfer of Property Act applied to the facts of this case or not. The short question before me is whether the statement made to the Mukhtiarkar by the appellants amounts to a contract within the meaning of section 53‑A of the Transfer of Property Act. The defence of part performance as embodied in section 53‑A of the T. P. Act requires four conditions to be fulfilled, namely, (1) that there should be a contract to transfer for consideration any immovable property by writing signed by the transferor or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, (2) that the transferee should in part performance of the contract have taken possession of the property or any part thereof, or, if already in possession, should have continued in possession in part performance of the contract and should have done some act in furtherance of the contract, (3) that the transferee should have performed or should be willing to perform his part of the contract and (4) that the rights of any other transferee for con sideration without notice should not be affected. The contention of the learned Advocate for the appellants in this case is that the first condition has not been fulfilled. There was admittedly no contract to transfer for consideration any immovable property by writing signed by the transferor. The statement made before the Mukhtiarkar, Dadu cannot be said to be a contract to transfer for consideration any immovable property. The state ment no doubt is signed by the plaintiffs, but that would not be sufficient to bring it within the provision contained under section 53‑A of the T. P. Act. The statement on the face of it is only an affirmation of what had already taken place. It is a recital of a past event requesting the Mukhtiarkar to give effect to what they had already done. The statement reproduced above is only an admission of the fact that they had made an absolute sale in favour of the respondent on receipt of Rs.

200. This statement, to my mind, cannot be said to be a contract to transfer for consideration any immovable property from which the terms necessary to constitute the transfer can be ascertained. In other words, the statement in question is only an application to the Mukhtiarkar requesting him to give effect to what has already been done. In this connection, reliance may be placed on the case of Shravan Jayaram Patil and others v. Garbad Ukha Nhavi (A I R 1943 Bom. 406). In similar circumstances the learned Judge held that application made to the village officers for mutation of name, though the applicant admitted the sale was not a contract within the meaning of section 53‑A of the T. P. Act. It was pointed out by Dunkley, J., in Maung Ohn and another v. Maung Po Kwe and others (A I R 1938 Rang. 356) that "distinction must be drawn between a writing which is a reduction into writing of a previous oral agreement, which would fall within the pro visions of section 53‑A and a writing in which there is a mere reference to‑ a previous oral agreement." I respectfully agree with this observation. Mr. Abut Khair relied on the case of Mst. Radhabai w/o Ram Karan v. N. J. Nayadu (A I R 1951 Nag. 285). In this case the vendors had reproduced the oral agreement into writing. This was not a case where the vendors were only making a reference to what had orally taken place sometime back. As 1 have already said this could not apply to the facts of the present case as in the present case the statement in question does not purport to reproduce what had orally taken place sometime before. It is only an application or admission before the Mukhtiarkar. Mr. Abut Khair relied on another case Ewaz Ali v. Mst. Firdous Jehan and others (A I R 1944 Oudh 212). This case has no application to the facts of the present case. The question in this case was whether section 53‑A contemplates unilateral act of possession by the vendee or any specific consent by the vendor. Mr. Abut Khair contended that the contract within the meaning of section 53‑A of the T. P. Act does not need to be in any particular form. It is true that the contract need not be in any particular form but it should be a contract within the meaning of section 53‑A of the T. P. Act. It should not be a' mere admission with reference to a previous oral agreement. He also contended that the statement in question having been signed by the plaintiffs, it should be deemed to be a contract within the meaning of section 53‑A of the T. P. Act. I do not think that there is any force in this contention. Mere signature of the plaintiffs would not convert the admission to a contract within the meaning of section 53‑A. I would, for the reasons given above, allow the appeal. Mr. Mazhar for the appellants stated that his clients would pay Rs. 200, the amount for which they had transferred the property to the respondent. The plaintiffs to recover the property from the respondent on payment of Rs.

200. The parties to bear the costs in both the Courts below.