P L D 1960 Dacca 1037 (PLP)

"Section 54 of the Transfer of Property Act provides that a sale of tangible immovable property of the value of Rs. 100 and upwards can be made, only by a registered instrument. The sale certificate was not registered and cannot consequently operate as a valid conveyance. The release was registered but it does not purport to be a conveyance, and was stamped, not as a conveyance but as a release ; as stated on the face of it, it was granted, because the property covered by the sale‑certificate was not described with sufficient precision in that document. A release of this character cannot operate to transfer title, because, as has been repeatedly ruled in this Court, title to land cannot pass by a mere admission when the statute requires a deed." The above observation was made while discussing a transfer by a District Board and after discussing the relevant rules and sections in respect thereof. It was held that a District Board could not sell any immovable property vested in it except with the previous approval of the Local Government and except by an instrument under the common seal signed by the Chairman and by two Members of the Board. The requirement as to signature by two Members was not directory but mandatory. From the above facts it does not appear that the said case 20 C W N 370 has any bearing on the facts and circumstances of this case. The decision in the aforesaid case was given in 1915 and there is no gain‑saying the fact that section 54 of the Transfer of Property Act does not require any registered document for the purpose of effecting a sale and there is no dispute that the deed of relinquish ment as referred to in the above case, cannot create any title in favour of the person in whose favour the said deed was made. After 1915 there has been an introduction in the Transfer of Property Act of section 53‑A which 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 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 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." This introduction of section 53‑A clearly goes to show that though a document has not been registered, but the transferer (sic) 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, the transferee can defeat the transferor's suit for declaration of title and for recovery of khas possession after evicting the transferee from the suit land. It is, therefore, clear that the argument that when a Statute requires extinction and creation of title by a registered document, a transferor's right can be questioned only when a registered instrument has been executed, can only be given effect to under certain circumstances but cannot be given effect to when the transferee after completing his part of the contract, is in possession though a document has not been registered. In support of this contention, the provision of section 26 of the Bengal Tenancy Act has also been referred to. It is true that section 26‑C of the Bengal Tenancy Act requires a transfer to be made by a registered instrument; but the question is whether a person in possession after completing his part of the contract can be estopped from saying that he is protected under the law against the vendor's claim for evicting him from the suit land on declaration of the vendor's title thereto. In my considered opinion, when a vendor puts the vendee in possession who has performed his part of the contract, he cannot be allowed to say that he has not parted with his right, title and interest in the suit land and that he is entitled to evict the vendee in possession. If the contention of the learned Advocate for the appellant be given effect to, then the provisions of section 53‑A of the transfer of Property Act and those of the Specific Relief Act and the proviso to section 49 the Registration Act will be made nugatory. But it will be a different question when the vendee comes up for declaration of his title to the suit land relying on an unregistered document. In the present case this question does not arise and I am not called upon to decide the same inasmuch as here the plaintiff has claimed for recovery of possession in the suit land on declaration of his title thereto and the defendants have not relied on the provisions of section 53‑A of the Transfer of Property Act but on the principle of waiver, acquiescence and estoppel. The next case relied on by the learned advocate for the appellant is the case of Dattraya Govind v. Narayan Gangaram and others (A I R 1936 Nag. 186) wherein it was held that a member in whom the joint family property vested under the Hindu Law, could not divest himself of his interest by mere disclaimer. This case, in my opinion, has no bearing on the facts and circumstances of the present case. The other cases, namely, Keshri Mull v. Sukan Ram (I L R 12 Pat. 616) and Balara v and others v. Naktu and others (108 I C 11) relied on by the learned Advocate for the appellant, have also no bearing on the case before us. In the case of Ariff v. Jadunath Majumdar (58 I A 91), the defendant in a suit for ejectment pleaded verbal agreement for lease by the plaintiff. This defence was rejected by their Lordships of the Judicial Committee on the observation that as there was no lease made by a registered document as required by section 107 of the Transfer of Property Act, the plaintiff was entitled to eject the defendant and that the defendant could have sued for specific performance of contract, if not otherwise barred. In that case the agreement was entered into in 1913. The following observations of their Lordships in the aforesaid case, may be referred to :‑

"Their Lordships cannot help feeling that some confusion of thought has prevailed in the Courts below in regard to the facts of this case, and the application of the authorities to those facts. "This is no case of money being expended by the respondent in any mistaken belief as to his legal rights, or the appellant knowing of the existence of any such mistaken belief, or encouraging the respondent by abstaining from asserting a right inconsistent with the acts of the respondent. Observe the true facts. In 1913 the respondent obtained a verbal agreement for the grant of a perpetual lease, under which agreement he could have sued for and obtained and registered an instrument creating his title to enjoy the property in perpetuity. That agreement continued to be enforceable against the appellant until the month of December 1921. The structures were erected on the land many years before that date, and they were erected not in any mistaken belief by the respondent of his rights in regard to the land, but in assertion of rights which he correctly believed to be his ; not by reason of any encouragement or abstention on the part of the appellant, but by reason of the agreement which he was then entitled to enforce against the appellant." But, in view of the introduction of section 53‑A of the Transfer of Property Act, it cannot be said, when there is a document, though not registered that it can be pleaded in defence that the contractee has performed or is willing to perform his part of the contract and he cannot be ejected. The aforesaid decision is not an authority against the principle of waiver and acquiescence but the passage quoted above, in my opinion, goes to show that a person under certain circumstances can plead waiver and acquiescence. The learned advocate for the appellant has also relied on the case of Pir Baksh v. Mahomed Tahar (61 1 A 388). Mr. Asaduzzaman Khan, the learned Advocate for the respondents, has contended, and I think rightly, that the aforesaid cases have no application to the present case inasmuch as the same do not deal with the question of waiver and acquiescence. It is contended by him that the defendants are entitled to defeat the plaintiff's title to the suit land on the principle of waiver and acquiescence. In the case of Ram Chunder Banka v. Rawatmull (19 C W N 1172) it has been held that "Waiver is consent to dispense with or forego something to which a person is entitled. Such consent may be by express agreement between the parties or implied. In the case of Midnapore Zemindary Co. Ltd. v. Kumar Chandra Singh Dudhuria and others (A I R 1943 Cal. 544) it has been held that waiver is the abandon ment by conduct of a known right and that it is an implied agreement not to exercise that legal right. In the case of Rup Chand Ghose v. Sarbessur Chandra Chunder and another (10 C W N 747) Woodroffe, J. observed that sections 116 and 117 of the Evidence Act are not exhaustive of the doctrine of estoppel by agreement and that estoppel may be by misrepresentation or by agreement. In the case of Sunderabai and another v. Devaji Shankar Deshpande (AIR 1954SC82) the following observations have been made :‑

"Even though the matter may have passed from the stage of a representation into an agreement, there are cases where the Courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuity of action. Authority for this position is to be found in the following passage from Bigelow on 'Estoppel', 6th Edition pp. 639‑640: `Situations may arise, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favour of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and a circuity of action'. In the case before us Gangabai as well as the plaintiff could be deemed to have agreed that Gangabai would not take a son in adoption to her deceased husband Shankar in the future, for the consideration of Rs. 8,000 paid by the Defendant 1 to the plaintiff. The defendant 1 acted upon this position to her detriment and paid in fact a sum of Rs. 8,000 to the plaintiff. The plaintiff accep ted this sum of Rs. 8,000 and relinquished all rights which he then had or which he could ever have had in the future to the property belonging to the family of Devarao. Gangabai continued to accept maintenance in accordance with the decree for mainten ance which was passed in her favour and the parties all along acted upon this agreement upto the time that the lawyer advised Gangabai to adopt the plaintiff again after the decision of their Lordships of the Privy Council in Anant v. Shanker (AIR 1943 P C 196). To allow the plaintiff to take up this position now would be to encourage a fraud or circuity of action which according to the passage from Bigelow above quoted would be the last thing a Court would ever countenance. Treating it therefore as an agreement or an under taking given by Gangabai as well as the plaintiff, even so the plaintiff would be estopped from contending that Gangabai had not lost her right of adoption as set out in term No. 2 of the award and asserting that she could adopt the plaintiffs a son to her deceased husband on the 12th December, 1943. "Having regard to the observations which we have made above we have come to the conclusion that the plaintiff was estopped from contending that Gangabai had the right to adopt him as a son to her deceased husband on the 12th December, 1943. This estoppel prevails in spite of the fact that both the Courts below have found that he was validly adopted by Gangabai as a son to her deceased husband on the 12th December, 1943." In the case of West Punjab Government through Home Secretary v. Mian Akbar Hussain (P L D 1952 Lah. 430) it has been held: "Estoppel in pais, or equitable estoppel, has been said to arise firstly from agreement or contract ; secondly independently of contract, from an act or conduct of misrepresentation which had induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is alleged. (Woodroffe's Law of Evidence) Section 115 deals with the second kind, while sections 116 and 117 afford examples of the first, of estoppel by agreement, but they are not exhaustive. At least that is what we have been hearing for a long time, and on good authority. Thus in Rup Chand v. Sarbesar Chandra Chunder 10 C W N 747 (1906) it was said that `there are some transactions which are so obviously based on a conventional state of facts that for that very reason the parties never in practice come to an express agreement about them at all and the estoppel is but the carrying out of what the parties as honest men must have intended if they thought about the matter at the time they made their bargain'. It was also observed in the same case that the question of the existence of such an estoppel must be dealt with on broad grounds of legal principle and that the question in each case should be is there an agreement on which an estoppel should be justly founded ? "Or, as Lord Coke said: `It is called an estoppel or conclusion because a man's own act or acceptance stopeth or closeth up his mouth to allege or plead the truth." From the trend of the aforesaid decisions it is apparent that estoppel may arise from agreement or from an act or misrepresentation ; that the Court should not encourage fraud or circuity of action that waiver is consent to dispense with or forgo something to which a person is entitled ; and, further, that waiver is the abandonment by conduct of a known right and it is an implied agreement not to exercise that legal right. In the present case it has been found by the Courts below that Akram Ali was not indebted but only Basharat Ali was indebted for a sum of Rs. 90 for which the plaintiff auction‑purchased the properties of both Akram Ali and Basharat Ali in 1938 ; that the plaintiff did never take possession of the suit properties ; that there was a sallsh in which the plaintiff admitted that he did not and could not acquire any title by the auction purchase in the property of Akramali and therefore he agreed that he would be satisfied for the decretal dues if a sum of Rs. 300 was paid by Basharat Ali or his heir, which was admittedly paid by a son of Basharat Ali for which the plaintiff executed a kabala conveying the property of Basharat Ali to his (Basharat Ali's) son ; that Akram Ali was allowed to possess his properties as owner ; that Akram Ali gifted away some of the properties in favour of some of the defendants and sold some properties to other defendants who, in their turn, sold the same to other persons ; that these transactions and possession of the properties by Akram Ali were allowed by the plaintiff without any objection from his side and the transferees also took the said properties for a good considera tion, believing that the same belonged to Akram Ali ; and that the plaintiff has come to assert his right after 12 years and limitation has been saved only by the intervention of a holiday inasmuch as delivery of possession was taken on the 8th of February, 1942, and the suit was filed on the 9th of February, 1954. It has also been found by the Courts below that the plaintiff admitted that he did not acquire any right by his auction‑purchase in the properties of Akram Ali ; that Akram Ali was not required to take any kabala from the plaintiff. It appears that this state of affairs was allowed to continue for 12 years during which time Akram Ali transferred his properties for good consideration. In these circumstances, in my opinion, the Courts below have rightly held that the plaintiff has waived his right and is (not) entitled to claim any right, by his auction‑purchase, in the properties of Akram Ali. If the claim of the plaintiff be allowed, it will be nothing but encouraging fraud or cirtuity of action which a Court would never countenance. In the result, the appeal is dismissed with costs and the judgment and decree of the lower Appellate Court are affirmed. Leave under clause 15 of the Letters Patent prayed for, is refused. A. H. Appeal dismissed.