1. In this Second Appeal two questions of law have been raised viz.,

(1) Whether an alienee under an unregistered instrument of sale could invoke the provisions of Sec. 53-A of the Transfer of Property Act in bar of a suit filed by the reversioner, and

(2) Whether for proving an instrument in writing, contemplated under Sec. 53-A, secondary evidence under Sec. 65 of the Evidence Act could be let in.

2. As regards the first question, the learned counsel appearing for both the parties have stated that there is no direct decision of this Court or of the Madras High Court, which would be binding upon this Court. However, there is a decision of a Single Judge of the Nagpur High Court reported in Balaram Jairam v. Kewalram . A.I.R 1940 Nag. 396., which takes the view that the estoppel that can arise under Section 53-A of the Transfer of Property Act is not merely personal to the widow but attaches itself to the estate and, therefore, Sec. 53-A could be invoked. A decision of the Calcutta High Court reported in Bhupal Chandra Sarkar v. Jagad Bhusan Sarkar . I.L.R 1943-I-Cal. 56., takes a contrary view.

3. In these circumstances, I am of opinion that the case involves some important questions of law and I therefore refer it to a Bench under rule I of the Appellate Side Rules of the Andhra High Court, 1958.

4. Mr. Krishna Murty states that he should have liberty to argue the case on the merits and raise other points. He would be entitled to do so as the case was not fully heard before me.

5. This case coming on for hearing on the 24th and 25th days of March 1959 and this day, in pursuance of the aforesaid order of reference, the Court delivered the following.

JUDGMENT

(Judgment of the Court delivered by the Hon'ble the Chief Justice.)

6. This second appeal raises some interesting questions under Section 53-A of the Transfer of Property Act (hereinafter referred to as the Act).

7. We may give a resume of the facts culminating in the second appeal. The respondent, who is an alienee from defendants 6 to 8, the reversioners to the estate of one Devarakonda Bangarayya, laid an action for the recovery some items of property, including item 1 which is in dispute in this second appeal. Bangarayya died before 1931, leaving behind him his widow, Suramma. The property in question was purchased by Bangarayya on 8th May, 1915, under Ex. B-4. Being unable to find the purchase price, he mortgaged, that very property to one Padmanabhudu, the paternal grand-father of the fourth defendant, under Ex. B-1 dated 10th May, 1915, for a sum of Rs. 700/-. This mortgage was kept alive by subsequent payments. In order of discharge this morgage and other simple debts, Suramma conveyed this property, under Ex. B-5 dated 3rd May, 1934, to one Nagayya. It was stipulated that the vendee should retain a part of the consideration and utilise it to discharge the encumbrance on that property. Since the vendee did not carry out his obligation, Suramma was put to the necessity of executing sale deed in favour of Padmanabhudu on 8th January, 1934.

8. On this part of the case, there are inconsistent versions presented by the appellant. In the written statement filed in a prior litigation, it was stated that he sale in favour of Padmanabhudu preceded the sale in favour of Nagayya, whereas in the present action, the order is changed and the sale in favour of Nagayya is shown to be earlier. This inconsistency is reflected even in the oral evidence. That apart, the plaintiff denies the existence of a sale in favour of Padmanabhudu.

9. To go back to the narration, this alleged sale was not registered. However, the fourth defendant seems to have got into possession of this property but when and under what circumstances he was inducted into possession could not be ascertained from the material on record. The plaintiff, as already stated, acquired the suit item under Ex. A-1 dated 16th November, 1950. Therefore, she called upon the defendants to deliver possession of the same and, as the demand was not complied with, she filed the suit O.S No. 176 of 1952 on the file of the District Munsif's Court, Bhimavaram, which has given rise to this second appeal.

10. The suit was resisted by the fourth defendant on the basis of the doctrine of part performance setting upon the sale already referred to and his possession. The plaintiff rejoined that apart from there being no such contract, the principle underlying Section 53-A of the Transfer of Property Act is not available against the alienee from the reversioners and that, at any rate, that section do not assist him, as the document is not forthcoming.

11. The trial court, accepting the contention of the plaintiff and over-ruling the defence, decreed the suit. This was confirmed on appeal by the Subordinate Judge, Narsapur.

12. This conclusion is challenged in this second appeal brought by the legal representative of the fourth defendant, who died pending the appeal before the Subordinate Judge.

13. It is urged in this second appeal that the appellant is entitled to call in aid section 53-A of the Act even against the plaintiff. Since the decision of the appeal turns on the construction to be put on Section 53-A, it is convenient to read it here. It is in these words:—

“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 of a transferee for consideration who has no notice of the contract or of the part performance thereof.”

14. Before we determine the issues raised above, it is useful to consider the nature of the right conferred by that section. This section gives effect to the equity of part performance. It has introduced partially this doctrine as obtaining in England into the statute of India. By furnishing a statutory defence, it enables a party to maintain possession who could not obtain a registered document but performed his part of the contract. The object of this provision is to disable the transferor or a person claiming under him from asserting his title in derogation of the rights of the other contracting party who had taken some action in performance of the contract. Thus this section gives a right to the defendant to protect his possession as against the transferor. It is equally available against persons who claim under him, such as his heirs, assigns and legal representatives.

15. But, could this apply to a reversioner, when the contract was entered into by the widow of the last maleholder? This has to be answered with reference to the nature and character of the widow's estate. Under the Hindu law, a Hindu widow is not a life-tenant. She is the owner of the estate with certain restrictions and as such she represents the estate for several purposes. That being the position, an alienation made by her for a legal necessity is binding upon the estate, which means that the reversioners are bound by such alienation. As a necessary corollary, a contract entered into on her behalf for the sale of land for such a legal necessity would also bind the reversioners. If such a contract could be given effect to even as against the reversioners, we fail to see how Section 53-A could not be attracted to such a contract. The reversioners, in such circumstances, would be deemed to be claiming under the widow. Of course, the position will be altogether different if the contract as such would not affect the reversioners as in a case where it does not purport to be for the benefit of the estate. This matter has been the subject of judicial interpretation.

16. A Bench of the Calcutta High Court in Bhupa Chandra Sarkar v. Jagad Bhusan Sarkar took the view that a daughter succeeding to the estate of her father or an alienee from her is not a person claiming under the widow and, as such, is not debarred from claiming possession of the property from the person who was put in possession by reason of the contract. To a like effect is the decision in Labhu v. Shib Ram. On the other hand, the Nagpur High Court struck a different note in this regard. In Balaram Jairam v. Kevalram . A.I.R 1940 Nag. 396. Niyogi, J., expressed the opinion that a reversioner must be held to be a person claiming under the widow in cases falling within the purview of Section 53-A of the Act and, therefore, he is debarred from setting up the invalidity of a document on the ground of non-registration in cases covered by that section. This construction of Section 53-A of the Act commended itself to a Bench of the Bombay High Court consisting of Gajendragadkar and Vyas, JJ. in Ranchhod Ramnarayan v. Manubui Zipru . I.L.R 1954 Bom. 201.. In that judgment, there is an instructive discussion on the nature of a Hindu widow's estate and the rights which a reversioner acquires when the succession opens. This is what Gajendragadkar J. observed in the course of his judgment:—

“There can be no doubt that, if the literal construction for which Mr. Pradhan contends is accepted, a contract of sale validly made by a Hindu widow would be defeated at the hands of the reversioner and that clearly is opposed to considerations of equity. Besides, it is inconsistent with the spirit of Hindu Law because if the Hindu widow had gone one step further and had sold the property for a legal necessity, the sale would have bound the reversioner. Therefore, in our opinion, it would be more reasonable to put upon the words ‘person claiming under the transferor’ somewhat liberal construction. Though the reversioner does not claim through the widow as such, he may be said to claim under her in the sense that he is the successor-in-title of the estate after the widow's death and the extent of the estate which would devolve upon him always depends upon the exercise by the widow of her undoubted right to dispose of the estate for a legal necessity.”

17. This sums up the position of a reversioner in the context of Section 53-A of the Act, correctly, if we may say so with respect. We are in entire agreement with the principle enunciated in the Nagpur, and Bombay cases. The other two cases have not adverted to the essential character of the widow's estate. In construing this section, Courts should try to give effect to the equitable object underlying this provision and, therefore, should put a liberal construction on the words therein. It is true that if the words are unequivocal and clear and could yield to only one construction, it would not be permissible for courts to give an unnatural meaning solely for the purpose of furthering the object of that section. But, when the words are capable of another interpretation Which gives effect to the policy underlying the section such interpretation should be preferred. On this discussion, it follows that, the reversioner is debarred from claiming possession of the property from the widow's alienee, if the latter was inducted into possession pursuant to the contract and if the other necessary elements are present. Consequently, the fourth defendant could claim the benefit of the section, if the other requisites envisaged therein are satisfied.

18. The crucial question, therefore, is whether the appellant had laid sufficient foundation for calling in and S. 53-A of the Act. The first and the foremost condition that should be established in order to invoke that section is the existence of a document in writing which constitutes a contract of sale.

19. Has it been established in this case beyond doubt that there was in instrument executed by the widow within the ambit of the section? This depends upon the evidence of D.Ws 1 and 2. They both deposed to the execution of a sale by Suramma in favour of Padmanabhudu in the year 1934. But, D.W 1 has not given a consistent version as regards the time of its execution. What is spoken to by him in his chief-examination is not reconcilable with what he stated in his cross-examination. In the Chief-examination, he testified to Suramma having sold the properties to Nagayya under Ex. B-5 with the stipulation that the vendee should discharge the encumbrance existing on the lands and when the latter had failed to fulfil his obligation, the vendor was obliged to sell the same properties to Padmanabhudu. But in the cross-examination, he gave the date of sale to Padmanabhudu as January 1934. This is inconsistent with his earlier statement, because the sale to Nagayya was in May 1934. The Trial Court was not prepared to act on the testimony of this witness on this aspect of the case. The learned District Munsif observed:—

“Suramma probably first executed the unregistered sale deed in favour of Padmanabhudu for the discharge of the debt but subsequently Nagayya perhaps interfered and wanted to take this property on the specific understanding that he would discharge that debt and also another debt of Pulleti Ramayya and pay her maintenance at 6 bags per year.”

20. It may be mentioned here that this is opposed to the case of the fourth defendant in the written statement filed in this case. Be that as it may, there are two conflicting versions as to which of the sales was earlier not only in the evidence of D.W 1 himself but also in the two written statements, one filed in. O.S No. 210 of 1941 (D.M.C Narasapur) and the other in the present litigation.

21. Coming to D.W 2, he makes a bald statement regarding the execution of the sale. Curiously enough, he states in his cross-examination that he was not present at the time of the execution of the document. He does not remember the year. In fact, he does not remember anything about the document except that a deed was executed. There is also one significant feature about this document which has not received sufficient attention at the hands of the District Munsif. D.W 1, who is alleged to be the scribe of the document, stated that he was looking into that unregistered instrument constantly for the pupose of calculating the period of expiry for registration but after the period expired he did not see it at all. Comment is unnecessary on this, as this speaks for itself. There is also no satisfactory explanation as to why it was not presented for compulsory registration if really an instrument of that description existed.

22. Further, it is not clear whether Suramma affixed her signature to that document so as to amount to the execution of it, for D.W 1 deposed:—

“She was postponing but agreed to execute the deed. That is for about four or five months thereafter. She was saying that she would execute the deed, but did not do so. Padmanabham then thought that she may not execute the deed and he kept quiet.”

23. These are significant admissions which throw considerable light on the alleged execution of the sale deed by Suramma.

24. The trial Court has not given a definite finding in this aspect of the matter on a discussion of the evidence bearing on it but merely reached the conclusion that ‘some document must have been executed by Suramma, as otherwise it is not explained how the fourth defendant got into possession.’ As we have already stated, except the evidence of D.Ws 1 and 2, there is no other material and the judgment of the trial court shows that the learned District Munsif ad not accepted the testimony of D.W 1 in that regard. The lower appellate Court had not given any independent consideration on this issues. The learned Subordinate Judge contended himself by merely saying that it seemed to be a fact that Suramma had executed an unregistered sale deed in favour of Padmanabhudu as spoken to by the D.Ws

25. But this need not detain us any further, as we feel that the other requirements of Section 53-A of the Act are not satisfied. It is true that if it is established that there was a document of the description envisaged in that section, parole evidence could be adduced to prove its existence and the contents of that document. In construing Section 53-A, resort could be had to Section 65 of the Indian Evidence Act; in other words, the existence and contents of the document could be established by secondary evidence.

26. One of the essential ingredients of Section 53-A is that the terms necessary to constitute the transfer should be ascertained with reasonable certainty. It is plain that the section lays stress on the terms of the contract. If it is no possible to gather the terms of the contract from secondary evidence, the section cannot come into operation. Have we in this case any material from which the terms of the sale could be ascertained with reasonable certainty. As we have already stated, only two persons speak to the execution of this document, namely, D.Ws 1 and 2. They merely said that a sale deed was executed. D.W 1 was not certain as to the extent of the land. In his chief-examination, he asserted that what was sold was Ac. 1-50 cents, but in the cross-examination he acknowledged his ignorance of the extent of the land by saying that he did not know whether the fourth defendant was in possession or Ac. 1-27 cents or Ac. 1-50 cents. Quite contrary to this, the fourth defendant's adoptive mother stated in her written statement filed in O.S No. 210 of 1941 that the land covered an extent of Ac. 1-64 cents. That apart, we are not told as to whether the sale compromised the entire bundle of rights in the land or only the rights of the widow. There is no presumption that the widow had conveyed an absolute rights and not merely her own interest. As pointed out by Viswanatha Sastri J. who delivered the leading opinion in Subramanyam v. China Soorayya the quantum of the interest conveyed would depend upon the terms of the sale deed, the purposes for which the sale is effected and the evidence of legal necessity or benefit or at least of a reasonable and bonafide enquiry into the necessity and propriety of the sale. An intention to deal with the entire estate may be inferred from recitals of necessity or benefit which would have no meaning if the limited owner was only dealing with her life interest but which would be necessary and relevant if an absolute title was conveyed. In the absence of the document or unimpeachable evidence as to the terms or recitals therein, it is difficult to judge the nature of the sale, the extent of the land conveyed thereunder etc. Therefore, the most essential requisits of Section 53-A has not been fulfilled.

27. There is another obstacle to the appellant taking advantage of the provisions of Section 65 of the Indian Evidence Act. Secondary evidence can be let in under Section 65 only in certain circumstances, one of which is that when the original has been destroyed or lost. The case of the appellant is that it was lost. In support of that case, we have only the evidence of D.W 3. He does not really advance the case of the appellant in any manner on that issue. This is what he deposed in his chief-examination:—

“Inukonda Devarakonda Suramma executed a sale-deed in favour of Padmanabham which was used in the prior litigation. It is not to be found now, it seems to have been lost. I do not know what happened to it”

28. In the cross-examination, he admitted that he had never seen the sale deed but that one Ammanna told him that he had seen it. Ammanna although he is alive, was not examined by the appellant. The statement of D.W 3 that the sale deed executed by Devarakonda Suramma was used in a prior litigation does not seem to be entitled to much weight, in view of his admission that it was Ammanna that was looking into the affairs of Atchamma, the adoptive other of the fourth defendant, in the prior litigation, namely O.S No. 210 of 41, Could this be regarded as sufficient material on which the case of destruction or loss of a document could be based?. For one thing, D.W 3 does not know anything about that document. He was only told by someone that he had seen it. How then could he prove its loss the existence of which he had knowledge? Moreover he does not definitely speak to the loss of the document. All that he stated was that it was not found by him and therefore it seemed to have been lost. There is not even a whisper of his having conducted search for it and was unable to trace it. The recitals in the written statement in that regard are significant. This is what is stated in paragraph 4 of the written statement:—

“The whole record relating to the said land was lost at the time of the death of this defendant's adoptive father and mother. Now, after some investigation and with great difficulty the certified copies were obtained and being filed”.

29. At the outset, it should be remembered that no copy of the alleged sale deed was filed before the Court. Therefore, the loss of the record referred to in he written statement could have reference only to documents for which copies were filed into Court. Again, the statement is as vague as it could be. It is not shown as to when exactly the records were lost. It could not be ignored in this context that there was a long interval between the death of the adoptive father and that of the adoptive mother of the fourth defendant.

30. In order to claim the benefits of Section 65 of the Indian Evidence Act, there should be credible evidence of the loss of the original. As pointed out by one of us in Ananta Raghuram v. Raja Bommadevara, Srinivasachari J.,

“There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document which were available to him.”

31. There is utter paucity of evidence on record in this case. As already stated, excepting the statement of D.W 3 extracted above, there is nothing else in the direction of the proof of the loss of the document. In this connection, we cannot also overlook the fact that the parties had preserved Ex. B-1 of the year 1915, and there is no satisfactory explanation as to how this document was missing and under what circumstances it was lost. The only reasonable inference that could be drawn is that there was no such document, or, even if one existed, it was not produced, probably for the reason that it might be unfavourable to the party. The District Munsif had contented himself by saying that evidently this document was lost. This is again based on a surmise that there must have been some document executed in 1934 and, if it was not produced, it must have been destroyed or lost. This in our opinion, is not a sustainable conclusion. Both the Courts below had not devoted any attention to this aspect of the case, obviously for the reason that they were not extending the benefits of Section 53-A to the contesting defendant.

32. There is another formidable objection to the defence based on Section 53 of the Act. That section contemplates possession being taken in part performance of the contract of sale. The evidence, of D.W 2 militates very much against the fourth defendant having taken possession of the property in pursuance suance of the sale. In the chief-examination, he stated that Padmanabhu wasgiven possession at the time of the settlement. According to him, document was executed three or four days after the settlement was effect which means that it was not pursuant to the agreement that possession was given but even earlier. In the cross-examination, he stated that Suramma was in possession of the property by the time of the execution of Ex. B-5. The present case of the appellant is that Ex. B-5 came into existence four months after the sale in favour of Padmanabhudu. This implies that no possessi was obtained by the vendee in part performance of the contract. If it should be assumed that the sale under Ex. B-5 was earlier, then the sale to Padmanabhudu would convey nothing because the title to the property had already passed to Nagayya under Exhibit B-5. This is also pointed out by the learn District Munsif, who observed that admittedly the last unregistered sale de in favour of Padmanabhudu was said to have been executed by Suramma alone who had no right since she had executed Ex. B-5 prior to that. Placed in that predicament, the appellant could not avail herself of the protection grant to a vendee under Section 53-A of the Transfer of Property Act.

33. For these reasons, we must affirm the judgment and decree of the low appellate Court and dismiss this second appeal with costs.

Ch. R.

34. Appeal dismissed.