P L D 1962 Baghdad﷓ul﷓Jadid 17 (PLP)

BASHIR AHMED, J.‑This is a second appeal by the plaintiff in a suit for possession of land which has been dismissed both by the trial Judge and on appeal by the District Judge, and arises In the following circumstances.

2. Sohna plaintiff had by an oral sale, which was duly incorporated in mutation No. 65 sanctioned on the 16th of February 1938, sold the land in suit for a sum of Rs. 450 to Allah Dad defendant. Waryam, the other defendant, brought a suit pre‑empting the sale. The appellant was not served in the suit and the proceedings were ex parse against him. The suit was compromised and the claim for pre‑emption decreed against Allah Dad. In execution of the decree, Waryam came in posses sion of the suit land.

3. On the 4th of August 1947, Sohna brought the present suit claiming possession on the basis that no title in immovable property of the value of Rs. 100 or more could be transferred without a registered deed. There is no dispute that section 54 of the Transfer of Property Act applies to this territory. The compromise in the pre‑emption suit, it was claimed, merely sub stituted Waryam for Allah Dad and since Allah Dad held no title in the property the transferee from Allah Dad was in no better position. There were various other pleas in the case which need not be noticed as the following issues which were struck in the case fairly reflect the pleas :‑ (1) Has the pre‑emption decree in favour of Waryam defen dant become final as the plaintiff Sohna took no steps to have it set aside? (2) Has the judgment passed in the pre‑emption suit become res judicata and the present case cannot proceed? (3) Has the plaintiff waived his right in the pre‑emption suit and is, therefore, not, competent to file the present suit ? (4) Is section 54, Transfer of Property Act, applicable to the facts of this case according to which proprietary rights of the plaintiff in the suit property have not been transferred to Waryam? (5) Has Waryam defendant spent Rs. 200 on the Improve ment of the land and is he entitled to the amount? (6) In the presence of mutation No. 65 of the land in suit in favour of Allah Dad defendant, is the plaintiff estopped from claiming the property as his own and from denying the proprietary rights thereof as having been transferred in favour of Waryam defendant?

4. The learned trial Judge dismissed the plaintiff's suit on the finding that he was estopped from claiming the benefit of section 54 of the Transfer of Property Act. The plea of part per formance under the law could have been agitated by the defendant. On appeal, the learned District Judge, following 61 I. C. 675 and Ma Myat Tha Zan v. Ma Dun (A I R 1924 Rang. 214) upheld the decision of the learned trial Judge on the finding that the proof of a valid agreement for sale was a good defence In a suit for possession brought by a seller against a purchaser notwithstanding the absence of any sale deed duly registered under the law. The plaintiff has challenged this finding of the Courts below by this second appeal.

5. Learned counsel for the appellant has confined his sub missions to issue No. 4 alone. The cases on which the Courts below have relied are no doubt against the appellant and merely affirm the principle of part performance which the Courts recog nised as applicable to this country. The leading case on the subject is Maddison v. Alderson ((1863) 8 A C 467), and it will be useful to reproduce the speech of the Noble Lord Selborne :‑ "In a suit founded on such part performance, the defendant is really charged upon the equities resulting from we acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, in justice of a kind which the statute cannot be thought to have had in contemplation would follow. Let the case be supposed of a parole contract to sell land, completely performed on both sides, as to everything except conveyance ; the whole purchase money paid ; the purchaser took into possession ; expenditure by him (say In costly buildings) upon the property ; leases granted by him to tenants. The contract is not a nuillty ; there is nothing in the statute to estop any Court which may have to exercise jurisdiction in the matter from inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequences. If, therefore, in such a case a conveyance were refused and an action of ejectment brought by the vendor or his heir against the purchaser, nothing could be done towards ascertaining and adjusting the equitable rights and liabilities of the parties of contract ; and the equities which arise out of the stage which It has reached cannot be administered unless the contract is regarded."

6. In a case reported as Mahomed Musa v. Aghore Kumar Ganguli (42 I A 1), the above statement of the law was held by their Lordships of the Privy Council to apply to this country. In a later case, reported as Arif v. Jadunath (I L F 55 Cal. 1090), the views expressed in Mahomed Musa's case were held to be obiter dicta. Their' Lordships of the Privy Council affirmed the principle that the plea of part performance cannot have the effect of abrogating the A provisions of the Registration Act or the Transfer of Property, Act by creating an interest which under these Acts can only be created by a registered instrument. This principle was enunciated' before the enactment of section 53‑A of the Transfer of Property Act. In a case reported as Mian Fir Bakhsh v. Sardar Mahomed Tahir (61 I A 388), their Lordships of the Privy Council were pleased to construe the section as a partial importation into India of the English equitable doctrine of part performance. By virtue of this section, the doctrine of part performance was not to rest on the principle of equities as applicable in England but on a statutory right which was more limited in extent. The contract in terms of the section has to be in writing and was available only by way of defence.

7. There is a long string of authorities after the enactment of section 53‑A of the Transfer of Property Act which have consistently refused to give effect to the plea without a writing, which may otherwise be lacking in legal form, signed by the party as evidence of a contract.

8. Applying these principles to the facts of the present case, it is clear that by a notification published In the Gazette of Bahawalpur on the 28th of May 1931, section 54 of the Transfer of Property Act was applied to this part of the territory, and by a later notification appearing in the Gazette of Bahawalpur dated the 14th of December 1939, section 53‑A ibid was also made appli cable in the following cases :‑ (1) Ma Mya v. V. P. R. V. S. A. Annamalai Chettyar (A I R 1934 Rang. 127). (2) Dharameshwar Sarma v. Lakhyadhar Borgohain (A I R 1950 Assam 107). (3) U Pu Le v. Co Kim Seng (A I R 1933 Rang. 136). (4) Dhanraj Mal v. Hazarmal (A I R 1934 Sind 81). (5) Bechardas v. Ahmadabad Municipality (A I R 1943 Bom. 344), and (6) Sharavan Jayaram v. Garbad Ukha (A I R 1943 Bom. 1006), in the absence of a writing to evidence the contract the benefit of section 53‑A had been denied. The limitation placed by the section is stated to rest on the principle that under our laws the documents are Inadmissible in evidence for want of registration and if an oral contract could be set up as a defence after limitation for a suit for specific performance it would considerably increase the risk of perjuries in proof of such a contract.

9. This being the state of the law, we are constrained to hold that neither the vendee nor the pre‑emptor acquired any title in the land under the oral contract of sale, and since there is no writing by a party to evidence the contract, the principle of part performance as determined under tae statute is not available in defence to the respondents. The appeal will, there fore, have to be allowed and the claim of the appellant decreed. In view of the fact that the sale has been avoided because of the want of the formalities required by law, the parties will bear their own costs throughout.

10. We have been informed that there are a large number of cases pending in the lower Courts which will be governed by our decision in this case. We are conscious of the well‑recognised practice In this country to enter on oral bargain of sales of land which go into mutations and are duly attested by Revenue Officers. They do not In essence partake the character of an oral sale for which the statutory limitations contained in section 53‑A should in fairness be attracted. The law as construed by us will encourage unscrupulous vendors to defraud the vendees. We are enjoined to interpret the law as it is Irrespective of the consequences but we do feel that it is a fit case where the evil could be remedied by necessary legislation. A copy of this judgment may be forwarded to the Law Ministry both of the Central and the Provincial Governments for such action as they may consider necessary. K. B. A. Appeal accepted.