1. This Second Appeal arises out of an action commenced by the appellant to establish his right to attach and sell the property of the 1st defendant in execution of a decree against the latter. The 2nd defendant set up a right under an unregistered documen of 22nd June, 1959. pursuant to which the 1st defendant is said to have received the entire price of Rs. 700 and made over possession of the property to the 2nd defendant. The appellant obtained a decree on 14th April, 1961 against the 1st defendant and proceeded to attach the property now in dispute on the 26th of March, 1963. The claim made by the 2nd defendant was allowed on 11th February, 1964, and the order made by the executing Court is Exhibit A-l. The Validity of this order has been impugned by the appellant in this suit.

2. The trial Court granted the decree asked for by the plaintiff. It held that the unregistered document relied upon by the 2nd defendant is not a mere agreement and that it purports to be the instrument of sale and is inadmissible in evidence. The trial Court also held that Exhibit B-l relied upon by the 2nd defendant was “got up for the purpose of evading the decree debt” of the plaintiff. The lower appellate Court held that Exhibit B-l was a genuine document and that pursuant to the transaction evidenced by Exhibit B-l, the 2nd defendant was put in possession of the property. The result, according to the District Judge, is that, the 1st defendent himself was precluded from enforcing any right regarding the property and that the attaching creditor cannot have a better right than the 1st defendant himself. The appeal was allowed by the lower appellate Court.

3. The plaintiff has preferred this Second Appeal. Two main contentions had been urged by Mr. Gangadhara Rao for the appellant. In the first place, he questioned the validity of the finding of the lower appellate Court in respect of Exhibit B-1. Secondly, he argued that the attaching decree-holder is not a person claiming under the transferor and consequently it is not open to the 2nd defendant to contend that the appellant is a representative of the transferor and is precluded from asserting the right to attach and sell the property.

4. As stated by me earlier, the learned District Munsif came to the conclusion that Exhibit B-1 does not represent a genuine transaction. It purports to have been attested by two persons. One of them has not been examined. D.W 2 is the attestor who has given evidence. The testimony of this witness was considered by the District Munsif to be not positive so as to make out unequivocally that it was written by his deceased brother-in-law. The witness stated that the 2nd defendant was tethering his cattle in his backyard. This statement was taken by the District Munsif to mean, that the site alleged to have been purchased under Exhibit B-1 was not used by the 2nd defendant. The District Munsif was not satisfied that an adequate reason had been given for not taking a deed of conveyance. There was no satisfactory explanation for the omission of the 2nd defendant even to make a demand for the execution of a deed of conveyance. He was also impressed by the fact that there were factions in the village and he concluded that Exhibit B-l had been brought into existence as a result of collusion between the defendants 1 and 2 and was motivated by the intention to defeat the claim of the appellant. The District Munsif stressed the circumstance that in respect of another transaction between the same parties relating to the purchase of another site for Rs. 200 a deed had been obtained by the 2nd defendant. On a consideration of all the above factors, he thought that the version of the 2nd defendant did not merit acceptance as a true or credible one.

5. The lower appellate Court has taken a different view. The finding of the lower appellate Court is criticised by the learned Counsel for the appellant on several grounds. In the first place, my attention has been drawn to the comment made by the District Judge is paragraph 17 of his judgment:

“P.W 3 is a cooly and P.W 2 is a relation of the 1st defendant. It follows that there is no independent evidence for the plaintiff.”

6. It is argued that the rejction of the evidence ofP.W 3 on the ground that he is a cooly and that of P.W 2 on the ground that he is a relation, is arbitrary. Learned Counsel submits that the acceptance or the rejection of the testimony of a witness must be determined by the inherent quality of the evidence and not solely on such considerations as have been adverted to by the District Judge. There is considerable force in the submission of the learned Counsel. The rejection of the testimony of P. Ws. 2 and 3 is not based upon an appreciation of the credibility of their evidence. It follows that their evidence was illegally ruled out or excluded by the lower appellate Court and the finding arrived at as a result of virtual exclusion of evidence, cannot, in the circumstances, be said to be Valid.

7. Learned Counsel for the appellant next drew my attention the following observation of the District Judge:

“It is urged for the plaintiff that previously the 2nd defendant obtained a registered sale deed from the 1st defendant for Rs. 200 and there is no reason why he should not take a sale deed for the suit property. There may be many reasons for not having Exhibit B-1 on regular stamp paper and having it registered. It may be due to confidence.”

8. It is true that there may be several reasons for the deed of conveyance not having been taken. The question is not whether “there may be reasons” but whether there are But, it is for the Court to determine, whether such reasons exist in the present case and whether they can be considered acceptable or weighty. When it is pleaded in justification of a particular course of conduct that there was some reason justifying that course of conduct, it is incumbent upon the Court to weigh the merits and probabilities of the reasons that are assigned in support of the contention. The District Judge however, does not set out what reasons had actually commended themselves to him and why he considers the inaction of the 2nd defendant free from adverse inferences that naturally arise by reason of the admitted omission to take the sale deed over long years.

9. Learned Counsel next drew my attention to another observation of the District Judge:

“It is not possible to understand why Exhibit B-1 should be executed on account of factions between those two people.”

10. Here again, the argument advanced for the plaintiff had not been squarely met by the lower appellate Court.

11. The criticism that has been levelled against the finding of the lower appellate Court cannot be said to be unfounded. I am of opinion that the District Judge's finding reversing that of the trial Court, is untenable. The finding of the District Munsif must, therefore, be allowed to prevail. On this basis, it follows that the 2nd dfendant cannot be said to have any right to be in possession of the property and is not entitled to question the right of the appellant to attach and sell the property of the judgment-debtor.

12. The second contention that has been urged by the learned Counsel for the appellant, depends upon the construction of section 53-A of the Transfer of Property Act. The provision on which the debate centres may be extracted hereunder:

“then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is a 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.”

13. In Audinarayudu v. Mangamma . 1943 2 M.L.J 300. King, J., held that the expression, “claiming under a transferor”, in section 53-A is wide enough to include a jugdment-creditor seeking to attach the property on the basis that it belongs to the judgment-debtor. The validity of the reasoning is questioned by Mr. Gangadhara Rao.

14. Learned Counsel relied upon the decision in Gnanambal v. Parvathi . 1892 I.L.R 15 Mad. 477, wherein it was held that notwithstanding the fact that the judgment-debtor was precluded from asserting his right to a property by reason of an earlier adjudication to which he was a party, a decree-holder could, nevertheless, attach the property. Muthusami Ayyar, J., observed:

“Though she attached it as the property of Subbayyan or his son, she did so, not as their privy or representative, but by virtue of a right inherent in her to attach what was really their property at the date of attachment.”

15. The principle on which that decision rested is, that the right of a decree-holder to attach the property of a judgment-debtor is not dependent upon the hypothesis that the decree-holder acts as the representative-in-interest of the judgment-debtor. The disability to which a judgment-debtor may be subject, does not fetter a decree-holder's right to proceed against the property if he is in a position to establish that the right, title and interest of the judgment-debtor are subsisting. In Gnammbal v. Parvathi, the facts were that when a property was attached in execution of a decree, a claimant intervened with a claim petition that was allowed. The judgment-debtor had taken no steps to have the order allowing the claim set aside. A suit filed by the decree-holder for that purpose was dismissed. Thereafter, the very same property was sought to be proceeded against by another decree-holder. As a result of the earlier proceedings, it was no longer open to the judgment-debtor to plead that the claimant's title was not subsisting. So far as the judgment-debtor was concerned, he was bound by the earlier adjudication, the effect of which was to declare judicially that the title-to the property did not vest in the judgment-debtor. The situation was that he could not assert as against the transferee that he had any right or title to the property. This, however, did not affect the decree-holder as an obstacle to his seeking a fresh adjudication as to the claimant's title. He could do so because the attaching decree-holder did not claim under the judgment debtor.

16. The same principle was recognized in Manicka v. Ammakamu, It was held therein that the attachment by a decree-holder is not sought by him as the privy or representative of the judgment-debtor, but by virtue of a right inherent in him to attach what was really the property of the judgment-debtor at the time of attachment.

17. While recognizing the ratio of the decisions in Gnanambal v. Parvathi, and Manicka v. Ammakannu, King, J., however interpreted the expression, ‘claming under a transferor” in section 53-A in a manner which is inconsistent with the rationale of the earlier decisions. If the correct principle is that the right of the attaching decree-holder is not derived because he is representative of the judgment-debtor then, for the purposes of the application of section 53-A, there cannot be a departure from that position. The expression, “claiming under a transferor” in section 53-A must be limited to a derivative interest or title. The underlying purpose of section 53-A is to accord legislative sanction to the equitable doctrine of part performance. The object is to enforce the sanctity of a contract notwithstanding a technical flaw therein or omission in the implementation thereof. It is apparent that the equitable principle underlying section 53-A is designed to maintain and preserve for the transferee such benefit as may’have accrued to him under the contract.

18. The essence of the doctrine of part-performance is that an inchoate transaction or imperfect instrument is not capable of being used by a party to the contract to defeat or frustrate or nullify the action previously taken by him in partial fulfilment of the contract. He is not allowed to undo what he had already done pursuant to the contract. The foundation of the equity is that it prevents a party to the imperfect contract from acting in such a manner as to neutralise the benefit conferred on the other party to the transaction. This disability, which equity imposes on him, is by reason of the contractual obligation, albeit in the circumstances the contract is unenforceable. It is a disability flowing out of the jural relation of contract. It is not sufficient if the equity imposes such a fetter only on the party to the contract. It is necessary for the effective operation of the equitable principle, that those who are bound by’ a party's contract should equally be subject to the same restraint as the party to the contract. It is only a person who acquires an interest on a derivative basis, by assignment inheritance, etc., that is also bound by an obligation under a contract. Therefore, the result is that all persons though strangers to a contract who, under law, are subject to the contractual obligation, are also subject to the equita ble restrictions which a partly performed contract entails. It is in this context that the expression “claiming under a transferor” in section 53-A has to be construed. I am of opinion that it is only a party to a contract or parties who are also subject to it, although not parties to it, that are amenable to the restraints that equity has devised and are given recognition in section 53-A. In strict logic and on principle, this conclusion is inevitable. The equity is one emanating out of a contract and its ambit is perforce determined by the limits which are inherent in the situation which binds parties to the contract and persons acquiring a derivative interest, but none others.

19. In Audinarayudu v. Mangamma . 1943 2 M.L.J 300., King, J., employed a test which may be summarised as follows: The learned Judge premised his reasoning by saying that attachment is only an early stage of execution proceeding. He thought that the situation following the attachment is by itself of no material importance. It is only when the further steps are taken and the property is sold that the fruits of attachment become available. Therefore, the question has to be determined with reference to the ultimate stage i.e, as it obtains after the execution sale. After the execution sale, the purchaser becomes a representative of the judgment-debtor. Because attachment by itself is of no practical ultility and because after the sale, an auction purchaser is a representative of the judgment-debtor, the learned Judge held that even at the stage of attachment, his position is impliedly that of a representative of the judgment-debtor.

20. I find it difficult to accept the principle on which the decision of King J., is founded. He was in my opinion not correct in the major premise formulated by him that “attachment is of no practical advantage In my opinion, the position that, an auction purchaser is for some purposes regarded as a representative of the judgment-debtor is not relevant for determining whether at the stage of attachment also, he acts, in seeking to attach the judgment-debtor's property, as the latter's representative-in-interest. The position an attaching-creditor occupies vis-a-vis the attached property is not identical with the interest which he may acquire ultimately as an execution purchaser. In many cases he may not become the purchaser and a stranger may acquire the interest. In seeking to attach the judgment-debtor's property, he is not doing anything as the debtor's privy or representative. On the other hand, he is doing something hostile to the interest of the judgment-debtor. It is true that the attachment can only be effective as to the right title and interest of the judgment-debtor. This, however, should not be allowed to obscure the precise legal position occupied by him in seeking to attach the property, of, the judgment debtor.

21. In my opinion, the learned Judge erred in not considering the-situation in relation to the attachment of the property and in considering as material only the position as it might emerge as a result of the completed execution sale. The true test is, whether in respect of the act of attachment, he is acting as the representative of the person whose right and title are merely sought to be placed in custodia legis by th? attachment. See Zamindar of Karvetnagar v. Trustee of Tirumalai-Tirupati, etc. Davastanams. The effect of an attachment in execution is well known. It does not annihilate the interest of the debtor. It does not transmit that interest to the attaching creditor. Attachment does no more than this; that the judgment-debtor cannot thereafter deal with the property contrary to the attachment. His title to the property is not displaced nor even kept in abeyance by the attachment. It does not override the conveyance, made in performance of a contract’ of sale prior to attachment; but will only fasten on any purchase-money paid after attachment. See Veeraraghavayya v. Kamala Devi, and Veerappa Thevars v. Venkatarama-Ayyar. It is evident that the debtor remains the owner of the property notwithstanding the attachment. His competence’ to transfer the property is unaffected, if it is not done contrary to the attachment. It is clear that the act of attachment is in essence and in substance the act of the Court in taking the property into its custody. The attaching creditor does not act in relation, to the property in a manner that can even remotely be equated to an assertion of a right, derived from the judgment-debtor.

22. The decision of King, J., also did not take note of the fact that the question had primarily to be determined, on the language of section 53-A and the position of an auction purchaser under the Civil Procedure Code, was not the relevant criterion. It is the wording and intendment of section 53-A of the Transfer of Property Act that should determine the position. I have pointed but the intendment and the basis of the doctrine of part performance embodied in section 53-A. The attaching creditor does not claim under his debtor and with great respect to the learned Judge, I am of opinion, that the ratio of the decision in Audinarayudu v. Mangamma . 1943 2 M.L.J 300., is not consistent with principle or precedent.

23. It is, therefore, open to the plaintiff to plead and prove that the unregistered sale deed is inoperative and was brought about to defeat the realisation of the decree debt by the plaintiff. The learned Counsel for respondent relied on the decision in Karri Maha-iakshmi v. Satyavolu Venkata Bhaskera Umamaheswara Varaparasada Murthi . 1967 1 An. W.R 288.. In that case, the question decided, was, whether a person who held an agreement of sale had sufficient interest in property to maintain an application under Order 21, rule 89 to have a sale set aside. The decision does not relate to the point arising for consideration in the instant case.

24. For the reasons mentioned above, I am of opinion that the lower appellate Court's decision has to be set aside and the decree of the trial Court is to be restored. The appeal is allowed-with costs right through. Leave refused.

25. Appeal allowed; trial Court's decree restored.