Meredith, J.:— This is a plaintiffs' second appeal against a judgment of reversal, dismissing their suit for a declaration of title to and recovery of possession over certain lands appertaining to or comprising an occupancy holding. The following genealogical table is relevant:—
It was alleged that the occupancy holdings comprising schedules A and B of the plaint were the ancestral property of this family, but without the knowledge or consent of the plaintiffs the defendant no. 1 purchased the lands from the defendants 2 to 4 by two unregistered sale-deeds (Exhibits C and D), dated the 29th February, 1936, one for Rs. 100 and the other for Rs. 300. The plaintiffs alleged that the sales were not for legal necessity, and were in contravention of section 12 of the Central Provinces Tenancy Act, 1920, under which the parties living in the Dhariar tract are governed, and were also void for non-registration, of the sale-deeds.
The defendant no. 1 contested the suit, alleging that the sales were for legal necessity, for payment of arrears of rent and family maintenance, and the sale-deeds were valid and binding on the plaintiffs.
The Munsif held that the lands belonged to Markanda, and after his death devolved on Tirtha. The sales were for legal necessity of the family, and ever since the sales the defendant no. 1 had been in possession, that is to say for four years, but the transfers were invalid both for lack of registration and as contravening the provisions of section 12. Hence he decreed the suit.
The learned Subordinate Judge held, first, that the sales were for legal necessity. Secondly, that they were validated, by part performance under section 53A of the Transfer of Property Act, which debars in such cases the transferor, or any person claiming under him, from enforcing against the transferee any right in respect, of the property of which the transferee has taken or continued in possession, other than a right expressly provided for by the terms of the contract. This section was added to the Transfer of Property Act by section 16 of the Transfer of Property (Amendment) Act XX of 1929.
Thirdly, the learned Subordinate Judge held that, having regard to the terms of section 11 of the C.P Tenancy Act 1920, the plaintiffs could have no right to sue in the lifetime of Tirtha defendant no. 2, since the law of survivorship was excluded, and, fourthly, he held that the suit was barred under the two years' period of limitation provided by Article 1, Schedule II of the C.P Tenancy Act. On these grounds he dismissed the suit.
With regard to the first finding, it is urged that the Munsif's decision is not clear, and that the Subordinate Judge has merely endorsed it without examining the evidence independently for himself. The finding is not, therefore, binding in second appeal. It is unnecessary to pronounce an opinion on this contention for reasons that will presently become apparent.
With regard to the right to sue and the applicability of section 53A, Transfer of Property Act, the appellants rely upon Chindhu v. Dadu and Maksudan Singh v. Darbargir, in both of which it was held that where an occupancy holding purports to be transferred for more than Rs. 100 by an unregistered sale-deed, the sale-deed being wholly void for lack of registration under, section 54 of the Transfer of Property Act, there has been no transfer at all, and, consequently, no contravention of section 12 of the C.P Tenancy Act, but only an attempted one. The position of the vendees would, therefore, be that of trespassers. Section 13 of the Tenancy Act could have no application, and a suit for ejectment would lie in a Civil Court. In neither of these rulings is any reference made to section 53A of the Transfer of Property Act, or the doctrine of part performance.
Before I proceed further to consider the contentions raised on the findings of the lower appellate Court, I think it advisable to examine the relevant provisions of the Central Provinces Tenancy Act, 1920.
Section 11 of that Act is as follows:—
“The interest of an occupancy tenant shall on his death pass by inheritance in accordance with his personal law:
Provided that—
(i) no person shall take any interest during the lifetime of any ancestor of such person in the male line of descent from the tenant;
(ii) no collateral shall be entitled to inherit unless he is a male in a male line of ascent or descent and within seven degrees of kindred from the tenant.”.
It is contended for the appellants that the provisions of this section do not mean that the law of survivorship is inapplicable. Reliance is placed on two decisions of Hallifax, A.J.C, Barati v. Surit and Dulru v. Shiolal where the opinion was expressed that the use of the word “inheritance” in section 11 does not rule out survivorship. In neither case has that learned Judge considered the effect of the first proviso. With the greatest respect to him, it seems to me that the effect of - the use of the word “inheritance” together with the proviso, manifestly rules out survivorship. The use of the word “inheritance”, if that stood alone, might, as he thinks possible, be due to inadvertence, though that view seems to me difficult to accept having regard to the marked contrast between the wording of section 11 and section 5. Section 5 provides that
“The interest of an absolute occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law”.
whereas the words “or survivorship” are omitted from section 11. However that may be, the first proviso makes it apparent that the word is used advisedly. I can only read that proviso as meaning that no person shall take any interest on the death of an occupancy tenant during the lifetime of any ancestor who is a nearer heir, or, applying it to the present case, on the death of Markanda neither defendant 3 nor defendant 4 nor plaintiffs 1, 2 and 3 could take any interest during the lifetime of Tirtha, the defendant no. 2. In other words, they can have no personal interest by survivorship. Their interest is merely a contingent one on the death of Tirtha. The significance of this is that the plaintiffs must be regarded as persons claiming, if at all, under Tirtha as his heirs and successors, and can have no personal interest in their own right.
Section 12 of the Act specifies the limited extent to which an occupancy tenant may transfer his holding, and sub-section (4) of that section provides that
“Notwithstanding anything contained in the Indian Registration Act, 1908, no officer empowered to register documents thereunder shall admit to registration any document which purports to contravene the provisions of this section.”
Section 13 is as follows:—
“If an occupancy tenant transfers his right in his holding or any portion thereof in contravention of section 12, any person who, if he survived the tenant without nearer heirs, would inherit the holding, or the landlord of such tenant may apply to a Revenue Officer to be placed in possession, subject, so far as the. Revenue Officer may, in accordance with rules made under section 109, determine, to his acceptance of the liabilities of the tenant for arrears and for advances for necessary expenses of cultivation,”
and provides a remedy where there has been a sale in contravention of section 12. It may appear at first sight that section 13 is in conflict with section 11, since it provides that any person who, if he survived the tenant without nearer heirs, would inherit the holding, may apply to the Revenue Officer to be placed in possession, subject to certain conditions. This, however, is not the case, because section 13 must be read with section 14, and section 14 provides that upon such application the Revenue Officer is to inquire into and decide who, from amongst such persons as desire to be placed in possession, is first entitled to be so placed. Thus, a person who is not at the time the nearest heir can apply, but he cannot succeed. Possession will be given to the nearest heir. It cannot be given to the tenant himself, who is evidently regarded as having forfeited all rights to the holding by reason of the transfer.
Quite evidently, a transfer is merely voidable by reason of being in contravention of section 12. It can only be avoided by certain persons subject to certain conditions. But sub-section (4) of section 12 prevents registration, and the effect of this will clearly be that where the sale is for Rs. 100 or upwards it will be not only voidable as being in contravention of section 12, but will also be wholly void under section 54 of the Transfer of Property Act for lack of registration. In such a case section 13 will have no application, because, as pointed out in the rulings upon which the appellants rely, there being no sale at all there has been no actual contravention of section 12 but only an attempted one. No interest has been transferred and there is nothing which is voidable under section 13, and in such a case the remedy, if any, will lie in the Civil Court. That means that section 13 is only applicable to cases of transfers in contravention of section 12 for a sum of less than Rs. 100.
Now let us consider the application of section 105 of the Tenancy Act. This provides in substance that the Civil Court shall have no jurisdiction, and shall entertain no suit instituted to obtain a decision on any matter which the Revenue Officer is empowered to determine, and with particular relevance to the present case the Civil Court has no jurisdiction over
“(c) claims to set aside, transfers by occupancy tenants under section 13.”
The bar will clearly only be applicable where the application would lie-under section 13, and, therefore, can have no operation in the case of unregistered transfers for Rs. 100, or more, and there is nothing in section 105 which in such case can bar the jurisdiction of the Civil Court.
Now, after clearing the ground, let us consider the points that arise for decision. The plaintiffs have challenged the sales in this case on three independent grounds, and if any one of them succeeds the suit must succeed. The first ground is that the sales are void for lack of registration, the second that they are voidable as being in contravention of section 12 of the Tenancy Act, and the third that they are voidable by members of the family other than the transferors as not being for legal necessity. It is necessary to consider each of these contentions in turn.
In my opinion, section 53A of the Transfer of Property Act is a complete answer to the contention regarding lack of registration. It is perfectly true that in the two rulings relied, upon, Chindhu v. Dadu and Maksudan Singh v. Darbargir, section 53A was not considered, evidently because it was not regarded as having any application. That was perfectly correct for the simple reason that in each of those cases the suit was by the landlord. Where a sale is void for lack of registration under section 54 of the Transfer of Property Act, section 53A does not give it any validity. The provisions of that section do not confer any title on the transferee. They can be used only in defence, and not for attack, and, moreover, they can be used in defence only against the transferor or any other person claiming under him. In both the cases in question the suit was filed by the landlord to eject the trespasser on the ground that the holding had been abandoned. The landlord was not a person claiming under the tenant and, therefore, section 53A could not possibly have been set up by way of defence. The view taken in the two rulings was, accordingly, perfectly correct, and I can find no reason to quarrel with them. But it appears from the analysis of section 11, which I have made that the plaintiffs in the present case are persons claiming under the transferor Tirtha as his heirs. Therefore, in my opinion, the provisions of section 53A can be set up in defence against them, and, though the part performance may have created no title in the defendant no. 1, the plaintiffs can enforce no right in respect of the property on the ground of lack of registration. The equitable basis of the doctrine is that having sold the property to the defendant, having taken his money and put him in possession, then even if the transfer is void the transferor in the interests of the prevention of fraud will not be heard to say so, and neither will any one claiming under him.
I now turn to the next contention, that the sale is liable to be set aside as being in contravention of section 12 of the Tenancy Act. Here the answer is simple. That fact in itself affords no remedy by suit, but only by an application under section 13. In so far as the suit is regarded as a suit not to eject a trespasser on the ground that the sale is void for lack of registration, but to avoid a sale in contravention of section 12, it is a suit which is barred under section 105 of the Tenancy Act. The only remedy, so far as that contravention is concerned, is an application under section 13.
The plaintiffs are thus upon the horns of a dilemma. If the sale is regarded as void for lack of registration, section 53A provides a shield against them. If it is regarded as voidable for contravention of section 12, then section 13 provides a remedy, and section 105 bars the jurisdiction of the Civil Court. Section 12 by itself cannot make a sale void, or attract the jurisdiction of the Civil Court. For the Civil Court it can provide no cause of action.
There remains the attack on the sale as being without legal necessity. If the plaintiffs, as I have held, do not take by survivorship, the doctrine of legal necessity has absolutely no application to the case and is entirely irrelevant. Tirtha as successor of Markanda is not a limited owner, but a full owner. His successors have no right in themselves, which they can enforce. They have a contingent right which can only arise after his death. If Tirtha has not an absolute right of transfer, it is not because he is a limited owner, but because section 12 of the Tenancy Act provides a bar. His sale may be voidable as contravening section 12, but it cannot be avoided by his heirs as being without legal necessity.
Lastly, it has been argued by Mr. M.S Rao for the appellants that, if they cannot maintain their suit for possession, at least it can be treated as a declaratory suit, and they can be given a declaration that the sales are not binding upon them. Declaratory suits are only maintainable if they come within the provisions of section 42 of the Specific Relief Act. It is quite true that, as is shown by illustrations D and E to that section, where a person having a mere life interest alienates property, the reversioner can sue for a declaration that the alienation is invalid against him; and similarly where a widow of a sonless Hindu alienates the property of which she is in possession as such, the person presumably entitled to possess the property, if he survived her, may obtain in a suit against the alienee a declaration that the alienation was without legal necessity and so void beyond the widow's lifetime. But even if we assume that the plaintiffs could otherwise obtain a declaration of their possible rights upon the death of Tirtha, were they not claiming under him but independently of him, as in the case of a reversioner upon the death of a limited owner, or, of a Hindu widow, the fact that they are claiming not independently of Tirtha, but under Tirtha as his heirs, debars them from setting up any such right in the face of the provisions of section 53A of the Transfer of Property Act.
Before I finish, there is one more point which I should deal with, namely, the finding of the lower appellate Court that the suit is barred by limitation under Article 1 of Schedule II of the Tenancy Act. This provides a period of limitation of two years in the case of suits for possession of a holding by a person claiming to be a tenant, from which he has been dispossessed, or excluded from possession, by any, person. In my opinion this Article would govern the present suit. It is argued before us that reading the Article with section 104 it should be held only to apply to suits under the Act, but I do not think this Article relates to suits under the special provisions of the Act, because nowhere in the Act do I find any special provisions for a suit of this kind. The reference must, therefore, be to an ordinary suit in the Civil Court. The present suit is certainly by persons claiming to be tenants, and is a suit for possession based on dispossession or exclusion from possession of the holding by the defendants.
In the result the appeal fails, and must be dismissed, but in the circumstances I would make no order for costs.
Ray, J.:— I agree.
Appeal dismissed.
S.H
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