This is an appeal by defendants Nos. 10 to 15 in a suit for possession of some lands. The facts which are not in dispute are these:—
The lands in suit belonged to one Ashu Tosh Sirkar. He was governed by the Dâyâbhâga School of Hindu law. He died leaving a widow and a daughter by a pre-deceased wife. The widow transferred the disputed lands to the father of the appellants by an unregistered kabâlâ for Rs. 200 on December 6, 1924, for legal necessity. The father of the appellants was in possession of the disputed lands on the basis of this kabâlâ during his lifetime. After his death, the appellants are in possession of the disputed lands. The widow, after the execution of the unregistered kabâlâ, died. Her stepdaughter, after her father's death, sold the disputed lands to the plaintiff respondents. The latter, after their purchase, raised the present suit for recovery of possession of the disputed lands.
The question is whether, on these facts, the appellants are entitled to retain possession of the disputed lands, in view of the provisions of s. 53A of the Transfer of Property Act.
The material provisions of this section are these:—
Where any person contract to transfer for consideration any immoveable property by writing signed by him………………………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………………………………………………
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 possesion,……,……………………………………………..
In this particular case, the Hindu widow sold the disputed property for Rs. 200 by a kabâlâ. But this instrument of transfer was not registered. The transferee was in possession and, after his death, his heirs are in possession of the lands sold by her. But the plaintiff is not the transferor. He claims under the step-daughter. The question is whether the step-daughter is a person, claiming under the widow. A person claims under another person when he is either an assignee from that person or is a legal representative of that person. In the first paragraph of s. 11 of the Code of Civil Procedure, we find the words “parties under whom they or any of them claim”. In the case of Risal Singh v. Balwant Singh, Sir John Edge said:—
“The rule of res judicata, as enacted in s. 11 of the Code of Civil Procedure, 1908, is not strictly applicable in this case, as the plaintiffs” (the reversionary heirs) “were not parties to the suit of Bani Dharam Kunwar” (the Hindu widow) “against Balwant Singh and do not claim under a party to that suit.”
The step-daughter of the deceased Ashu Tosh Sarkar, or the transferee from her cannot, therefore, be sard to be a person claiming under the widow. The appellants are, therefore, not entitled to the protection under s. 53A of the Transfer of Property Act. The learned Judge was, therefore, right in decreeing the plaintiffs' suit.
The appeal, accordingly, fails and is dismissed with costs.
Appeal dismissed.
S.F.A