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Case Number

Second Appeal No. 792 of 1937

Judges

Mohammad Ismail, J.

Acts

TRANSFER OF PROPERTY AMENDMENT ACT
Section 53-A, T.P. Act. Section 53-A

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appeal arises from a defendants' appeal against a decree of the Civil Judge of Gorakhpur which affirmed a decree of the learned Munsif. According to the plaint, by a deed of exchange dated 28 May 1915 the plaintiffs obtained certain plots listed in "list B" and the defendants became owners of plots listed in "list A". The parties had been in possession of the plots assigned to each other since the exchange. The Revenue Court, for reasons not detailed in the opinion, had not given effect to the transfer in the revenue records; the plaintiffs alleged that the defendants, encouraged by the Revenue Court's order, attempted to interfere with plaintiffs' possession.

The plaintiffs sought (1) a declaration that they were owners of the plots in list B and that the defendants were not entitled to interfere with their enjoyment and possession, and alternatively (2) if the first relief could not be granted, a decree for possession of the plots in list A and Rs. 100 for improvements. Defendants 2, 3 and 5 to 8 contested the suit, pleading among other things that: (a) there was no exchange as alleged; (b) the defendants were occupancy tenants in respect of plots in list A; (c) the plaintiffs had never been in possession of the plots in list B; and (d) the deed of exchange was inoperative for want of registration and other legal defects.

Because the defendants claimed to be tenants of the plaintiffs in respect of plots in list A, the tenancy issue was referred to the Revenue Court, which found in favour of the defendants. The trial Court accepted that finding; the lower Appellate Court did not record a finding on tenancy as the Civil Judge considered it unnecessary in view of his findings on other issues.

Legal Issues Presented

Whether the deed of exchange dated 28 May 1915 (executed by Raghunandan on behalf of the plaintiffs) was valid and operative to transfer the respective plots to the parties, particularly when some plots belonged to joint khewats with multiple cosharers.
Whether Raghunandan alone (as karta) was competent to execute the deed on behalf of all plaintiffs and whether non-joinder of other cosharers rendered the deed inoperative.
Whether an unstamped and unregistered deed of exchange could be given effect under Section 53-A of the Transfer of Property Act (i.e., whether Section 53-A could be invoked by the plaintiffs in a suit to enforce rights under an unregistered contract).
Whether plaintiffs' long, open, and adverse possession (over 12 years) ripened into full title and entitled them to a declaration of proprietorship in respect of the plots in list B.
As a procedural question, the effect of the Revenue Court's finding on tenancy and whether it was necessary to decide tenancy given the other findings.

Arguments of the Parties

Defendants / Appellants' Arguments

There was no exchange as alleged by the plaintiffs; the purported deed of exchange was ineffective.
The defendants were occupancy tenants in respect of plots in list A (a claim which led to referral to the Revenue Court).
The plaintiffs were never in possession of the plots in list B.
The deed of exchange was inoperative because it was neither stamped nor registered and had other legal defects.
It was contended (by appellants' counsel) that Section 53-A of the Transfer of Property Act can only be used as a defensive shield and cannot be the basis for a plaintiff's suit to enforce rights under an unregistered contract.

Plaintiffs / Respondents' Arguments

The plaintiffs relied on the deed of exchange (dated 28 May 1915) and their continued possession under it; they asserted that Raghunandan had authority to execute the deed on their behalf and that he acted as karta representing all plaintiffs.
The plaintiffs relied on the courts below which had held they had been in peaceful possession as proprietors over the plots in list B since 1915 and had openly asserted title with the knowledge and consent of the defendants.
The respondents relied on certain precedents (Kaura Ram v. Chaman Lall and Mastram v. Ma Ohn) supportive of their position concerning the effect of such instruments or possession, though the opinion records the Court did not follow all of these authorities in every respect.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Midnapur Zamindary Co. Ltd. v. Kumar naresh Narayan Roy (1924) 11 A.I.R. P.C. 144	Observation that a cosharer may cultivate exclusive portions not cultivated by others but must pay compensation; such exclusive use does not oust proprietary rights of other cosharers.	The Court cited this principle to explain general limits on a cosharer's power to create exclusive proprietary rights, but treated the facts of the present case as distinguishable because of acquiescence and long possession by transferees.
Qutbuddin v. Mangla Dube (1935) 22 A.I.R. All. 771	Rule that one of several cosharers cannot transfer to a stranger lands held by him in severalty; other cosharers can set aside such alienation and eject transferees.	The Court acknowledged the rule but held the present facts were distinguishable: transfers had been acted upon and were acquiesced in for many years, so the defendants could not raise that point after long silence.
Adit Singh v. Dindayal Sahu (1936) 23 A.I.R. All. 456	Principle that a cosharer in undivided property cannot alienate any defined portion even if in exclusive possession; alienation is subject to co-sharers' right to enforce partition; mortgage/partition interaction noted.	The Court reviewed these authorities but distinguished them on the facts because the transfers here had been acted upon and were not challenged by other cosharers for many years.
Currimbhoy & Co. Ltd. v. Creet (1933) 20 A.I.R. P.C. 29	Noted that the Transfer of Property (Amendment) Act, 1929 inserted section 53-A, enabling in certain circumstances a defendant in ejectment to plead possession under an unregistered contract as a defence.	The Court relied on the Judicial Committee's observation to underscore that Section 53-A was introduced to afford a defensive plea; this influenced the Court's conclusion that plaintiffs could not invoke Section 53-A offensively in their suit.
Dantmara Tea Co. Ltd. v. Probodh Kumar Das (1936) 41 C.W.N. 54 (Calcutta High Court)	Authority interpreted in a way that supported limiting the operation of Section 53-A (as against plaintiffs seeking affirmative relief under an unregistered contract).	The Court noted that a Calcutta High Court Bench took a similar restrictive view; the present Court held that plaintiffs could not claim benefit of Section 53-A in their suit.
Kaura Ram v. Chaman Lall (1934) 21 A.I.R. Lah. 751	Authority relied upon by respondents in support of their position regarding the effect of unregistered instruments/possession.	The Court recorded that these authorities "help the plaintiffs" but ultimately, in view of higher authority, held plaintiffs could not invoke Section 53-A as plaintiffs in this suit.
Mastram v. Ma Ohn (1934) (reported in 21 A.I.R.)	Authority relied upon by respondents (details in opinion limited to citation).	The Court noted the authority but did not accept it as sufficient to allow plaintiffs to rely on Section 53-A to found their affirmative relief.
Mt. Jasoda Kunwar v. Janak Misir (1925) 12 A.I.R. Pat 787	Holding that even when a registered sale deed is found illegal, a purchaser put in possession pursuant to the deed and in possession for over 12 years openly and adversely to the vendor acquires full title.	The Court applied this principle to conclude that plaintiffs' continuous possession for over 12 years ripened into full title despite any defect in the deed.
Kandasami Pillai v. Chinnabba (1921) 8 A.I.R. Mad. 82	Principle that an unregistered sale may not of itself transfer interest but may evidence the nature of a transferee's subsequent possession, which after 12 years can ripen into full title.	The Court relied on this authority to support the view that the plaintiffs' long undisturbed possession converted their possession into title.
Qadar Bakhsh v. Mangha Mal (1928) 10 A.I.R. Lah. 495	Followed the principle that possession shown by an unregistered transaction can ripen into title after the statutory period.	The Court cited this case as following the same rule and applied that doctrine to hold plaintiffs proprietary in respect of list B plots after 12 years' possession.

Court's Reasoning and Analysis

The Court proceeded in distinct analytical steps, applying legal principles to the facts as found by the courts below:

Competence to execute the deed and effect of non-joinder:
The defendants argued that Raghunandan alone, who executed the deed on behalf of the plaintiffs, was not competent to transfer specific plots that belonged to joint khewats with several cosharers. The Court reviewed authorities establishing the general rule that a cosharer cannot alienate defined portions of undivided property so as to prejudice other cosharers' proprietary rights.

However, on the facts the Court found important distinguishing circumstances: certain cosharers had transferred the specific plots to the plaintiffs on 25 May 1912 and the plaintiffs obtained possession without objection; the exchange of 28 May 1915 was acted upon; no cosharer objected for some 24 years; and the plaintiffs asserted that Raghunandan acted as karta and was authorized to execute the deed. Given long acquiescence by the interested parties, the Court held it was too late for defendants to raise non-joinder now and that the deed could not be held inoperative solely on that ground.
Admissibility and effect of an unstamped/unregistered deed under Section 53-A:
The Courts below had relied on Section 53-A of the Transfer of Property Act to permit effect to be given to the written but unregistered deed because the plaintiffs had taken possession in part performance. The Court examined the statutory text and applicable authorities (including the Judicial Committee's observations in Currimbhoy and commentary by Mulla) that Section 53-A was introduced as a statutory right but is more limited than the English equitable doctrine and is primarily available as a defence.

The Court accepted the submission that Section 53-A operates principally as a shield for defendants (for instance, in ejectment suits) and is not available to found a plaintiff's affirmative suit to enforce rights under an unregistered contract. It therefore held that the plaintiffs could not claim the benefit of Section 53-A to ground their suit for declaration based on the unregistered exchange.
Title by long possession (prescription/limitation):
Although the Court concluded the plaintiffs could not rely on Section 53-A, it found that the plaintiffs had been in continuous, open and adverse possession of the plots in list B since 1915 (more than 12 years). The Court drew on precedents (Mt. Jasoda Kunwar, Kandasami Pillai, Qadar Bakhsh) which establish that possession for the statutory period — even where the initial instrument was defective or unregistered — can ripen into full title.

Applying those authorities to the facts (long undisturbed possession, acquiescence of cosharers and transferees remaining in possession), the Court concluded that plaintiffs had acquired full title by contiguous possession for over 12 years openly and adversely to the vendor, and it would be inequitable for the defendants to prevail on a late-raised defect in the deed.
Effect of Revenue Court finding on tenancy:
The Revenue Court had found in favour of the defendants on the tenancy issue, and the trial Court accepted that finding. The lower Appellate Court did not record a finding on that issue, considering it unnecessary given other determinations. The opinion does not treat the tenancy finding as determinative of the main issue because the Court's final ruling was made on the basis of title by possession and the other factual findings.

Holding and Implications

HOLDING: The Court affirmed the decree of the lower Court and dismissed the defendants' appeal with costs. The Court held that:

Although the plaintiffs could not claim the benefit of Section 53-A of the Transfer of Property Act to maintain an affirmative suit based on an unregistered deed,
the plaintiffs had acquired full title to the plots enumerated in list B by continuous, open and adverse possession for over 12 years, and therefore were entitled to the declaration claimed.

Implications:

Direct effect on the parties: The decree in favour of the plaintiffs (declaration of proprietorship over plots in list B) is affirmed and the appeal is dismissed with costs.
Legal impact: The opinion applies established principles concerning (a) limits on a cosharer's power to alienate undivided land, (b) the limited and primarily defensive role of Section 53-A in relation to unregistered contracts, and (c) the rule that long, open and adverse possession (over 12 years) can ripen into full title. The Court's decision rests on applying these existing authorities to the facts; the opinion does not purport to establish a novel legal principle beyond those applications.

This summary has been prepared exclusively from the text of the provided opinion and does not add facts or inferences beyond the opinion's contents.

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Kashi Nath Tewari v. Makchhed Tewari

1. This is a defendants' appeal from a decree of the learned Civil Judge of Gorakhpur which affirmed a decree of a learned Munsif of that district. The plaint states that by deed of exchange dated 28th May 1915 the plaintiffs obtained plots in list B while the defendants became owners of plots in list A. The plaint further states that ever since the execution of the deed of exchange the parties have been in possession of the plots assigned to each other; that the Revenue Court for certain reasons have not given effect to the transfer in the revenue papers and that the defendants encouraged by the order of the Revenue Court have attempted to interfere with the plaintiffs' possession. On these allegations it is prayed that the plaintiffs may be granted declaration that they are owners of the plots enumerated in list B and that the defendants are not entitled to interfere in their enjoyment and possession of the aforesaid plots. In the alternative it is prayed that if for any reason the first relief is not granted to the plaintiffs they may be awarded a decree for possession of the plots comprised in list A together with Rs. 100 spent by the plaintiffs on the improvements. Defendants 2, 3 and 5 to 8 contested the suit. They pleaded inter alia that there was no exchange as alleged by the plaintiffs; that the defendants were in possession over plots in list A as occupancy tenants; that the plaintiffs were never in possession of the plots in list B and that the alleged deed of exchange was inoperative for want of registration and other legal defects.

2. As the defendants claimed to be the tenants of the plaintiffs with respect to plots in list A the issue of tenancy was referred to the Revenue Court. The finding of the Revenue Court was in favour of the defendants. The trial Court accepted the finding of the Revenue Court. The lower Appellate Court did not consider it necessary to record a finding on that issue as in the opinion of the learned Civil Judge the decision of that issue was unnecessary in view of his findings on other issues. The deed of exchange on behalf of the plaintiffs was executed by one of the plaintiffs, namely Raghunandan. It is argued that Raghunandan alone was not competent to execute the deed on behalf of the plaintiffs and further that the deed of exchange is ineffective because it purports to transfer plots in list A which appertain to khewats 1 and 4 which belong to several cosharers including the plaintiffs. It is urged that Raghunandan had no right to transfer specific plots appertaining to a joint khewat, especially as several cosharers were in no way concerned with the transaction of the alleged exchange. In support of this contention several authorities have been cited. In Midnapur Zamindary Co. Ltd. v. Kumar naresh Narayan Roy (1924) 11 A.I.R. P.C. 144 their Lordships of the Judicial Committee observed:

Where the lands in India are so held in common by cosharers each cosharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his cosharers but he is liable to pay compensation in respect of such exclusive use of the lands. Such an exclusive use of the lands held in common by a cosharer is not an ouster of his cosharers from their proprietary rights as cosharers in the lands.

3. It was further observed:

No cosharer can as against his cosharers obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy in them.

4. The above-mentioned observations were made in a case in, which one cosharer brought a suit against another cosharer for a declaration that the defendants had no jote rights in any of the lands of which he sought partition and a decree for possession after partition by ejectment of the defendants. In Qutbuddin v. Mangla Dube (1935) 22 A.I.R. All. 771 Niamatullah J. remarked:

One of several cosharers in an undivided mahal cannot transfer to stranger lands held by him in severalty and if he does so, the other cosharers are entitled to have the alienation set aside, to eject the transferees and to take joint possession with the transferors.

5. That was also a case between two co-sharers. In Adit Singh v. Dindayal Sahu (1936) 23 A.I.R. All. 456 Bajpai J. reviewed a number of authorities on the subject and said:

A cosharer in an undivided property cannot alienate any defined portion of such property even though he might have been in exclusive possession of the same by an agreement amongst the various cosharers. It follows that if such an alienation is made the alienation is subject to the right of the joiner cosharers to enforce a partition. If the mortgage is followed by a partition and the mortgaged properties are allotted to the other cosharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagors in substitution of his undivided share.

6. In some cases a contrary opinion has been expressed. I however think that the facts of the present case are entirely distinguishable. It appears that Mt. Brijmani Tiwarin, Mt. Dulma Tiwarin and Thakur Dayal were at one time in possession of the plots in dispute. They were cosharers in khewats 1 and 4 along with certain other porsons and the plots in dispute appertained to those khewats. On 25th May 1912 the aforesaid persons transferred the specific plots to the plaintiffs who obtained possession without any objection from any of the cosharers. On 28th May 1915 Raghunandan on behalf the plaintiffs executed the deed of exchange in favour of some of the defendants and the predecessors of others. No objection was made by any of the joint owners to the transfer by Raghunandan in favour of the defendants and the transferees continued in possession without any objection for the last 24 years. No objection is being raised even now by any of the cosharers. Under the circumstances, it is not open to the defendants to raise a point which might have been available to the cosharers at the time of the transfer. On the authority of the cases cited above, if a suit has been instituted by the cosharers other than those who were a party to the sale or the deed of exchange, it is possible that these transactions might have been cancelled. But in view of the long silence of all the interested parties it must be assumed that they agreed to the transfers and it is too late to question them now. In my opinion the defendants cannot be allowed to resile from the agreement after a lapse of so many years. The Courts below have come to a concurrent finding that the deed of exchange was acted upon and the plaintiffs have been in possession of the plots comprised in list B in pursuance of the deed of exchange. That being so the deed of exchange cannot be held to be invalid because some of the cosharers were no parties to it. As stated above the plots in list A were transferred on behalf of the plaintiffs but the deed of exchange was executed only by Raghunandan who was the karta of the family and represented all the plaintiffs. The plaintiffs applied to the Revenue Court confirming the transfer made by Raghunandan on their behalf and in the present suit they state that Raghunandan was authorized to execute the deed of exchange. In my judgment the deed of exchange is not inoperative because other plaintiffs did not join Raghunandan in executing it.

7. The next question stressed by learned Counsel is that the deed of exchange is inadmissible in evidence because it is neither stamped nor registered. The Courts below have held that the plaintiffs are entitled to the benefit of Section 53-A, T.P. Act. Section 53-A runs as follows:

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 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 on which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

8. Learned Counsel for the appellants contends that this Section can be used only as a shield and not as a sword and that it is not possible for a person who is entitled to the benefit of that Section to bring a suit as plaintiff for the purpose of enforcing his right under that Section. In Currimbhoy & Co. Ltd. v. Creet (1933) 20 A.I.R. P.C. 29. Lord MacMillan observed:

It remains to take note of the fact that since the present suit was brought the law in India has been altered by the Transfer of Property (Amendment) Act (20 of 1929) which has inserted a new section 53-a in the principal act whereby a defendant in an action of ejectment may in certain circumstances effectively plead possession under an unregistered contract of sale in defence to the action.

9. Sir Dinshaw Fardoonji Mulla in his commentary says:

By virtue of this Section part performance does not give rise to an equity as in England but to a statutory right. This right is more limited than the English equity in two respects : (1) the contract must be in writing; (2) it is available only as a defence.

10. The deed of exchange is in writing and (embodies the necessary terms of the contact, but in view of the observations quoted above the plaintiffs cannot take advantage of it. This view was taken by a Bench of the Calcutta High Court in Dantmara Tea Co. Ltd. v. Probodh Kumar Das (1936) 41 C.W.N. 54. Learned Counsel for the respondents has relied upon Kaura Ram v. Chaman Lall (1934) 21 A.I.R. Lah. 751 and Mastram v. Ma Ohn (1934) 21 A.I.R. Rang. These authorities no doubt help the plaintiffs, but having regard to the observations of their Lordships of the Judicial Committee I must hold that the plaintiffs cannot claim the benefit of Section 53-A and that the Courts below have taken an erroneous view of law on this point. The matter however does not end here. The Courts below have held that the plaintiffs have been in peaceful possession as proprietors over the plots in list B since 1915 and that they have openly asserted their title to this property to the knowledge and with the consent of the defendants. Even if the deed of exchange did not confer a legal title to them in the lands in dispute in my judgment they have acquired full title to the property by contiguous possession for over 12 years openly and adversely to the vendor. It would be most inequitable and unjust if the dishonest plea of the defendants prevails and the plaintiffs lose possession of the property which they acquired in exchange and also their own property which they gave in exchange. In Mt. Jasoda Kunwar v. Janak Misir (1925) 12 A.I.R. Pat 787 a Bench of that Court held:

Even when a registered sale deed is found to be illegal the purchaser gets full title to the property purchased if he is put in possession in pursuance of the registered deed and continues to be in possession for over 12 years openly and adversely to the vendor.

11. In Kandasami Pillai v. Chinnabba (1921) 8 A.I.R. Mad. 82 a Bench of that Court held:

An unregistered sale cannot be set up as a transaction having effect of itself to transfer any interest in the property; but it is permissible to consider it, as showing the nature of the transferee's subsequent possession, i.e. when the sale is of mortgaged property to the mortgagee that it was not as a mortgagee, but as full owner. That being established it would after the expiry of 12 years ripen into full title and bar mortgagor's right of redemption.

12. In Qadar Bakhsh v. Mangha Mal (1928) 10 A.I.R. Lah. 495 this case has been followed. In the present case as the deed of exchange did not convey any title the possession of the plaintiffs over the plots in dispute was without title. It has been found that the plaintiffs were in undisturbed possession for over 12 years; in my judgment they must be held to be the proprietors of the plots enumerated in list B. The plaintiffs are therefore entitled to the declaration claimed by them. The decree of the Court below must accordingly be affirmed. In the result the appeal fails and is dismissed with costs.

Kashi Nath Tewari v. Makchhed Tewari

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendants / Appellants' Arguments

Plaintiffs / Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kashi Nath Tewari v. Makchhed Tewari

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