Judgement

Appeal (No. 31 of 1946) from a judgment and decree of the High Court (November 22, 1943) which affirmed a judgment and decree of the District Judge of Guntur (April 20, 1942) which had reversed a decree of the Subordinate Judge of Bapatla (July 31, 1939).

The following facts are taken from the judgment of the Judicial Committee. The facts giving rise to this appeal were not in dispute, having regard to the findings of the courts in India. The respondent and his father constituted a Hindu joint family. The respondents father died on October 4, 1935, leaving him surviving his widow and the respondent, who was then and was still a minor. Before his death the respondents father had incurred certain debts, including a debt of Rs. 16,000 owing to the appellants and secured by two promissory notes, and a debt of Rs. 1,200 owing to one Ramayya and secured by a mortgage. By an agreement in writing, dated November 29, 1935, the respondent " being " minor by guardian and mother Manikyamma," to quote the words of the agreement, agreed to sell the lands in suit to the appellants for Rs. 17,200. The purchase price was to be applied as to Rs. 16,000 in discharging the promissory notes and as to Rs. 1,200 in discharging the mortgage debt owing to Ramayya. The contract provided that a sale deed was to be executed, registered and delivered to the appellants, at their expense and on their request.

The appellants duly paid off the mortgage debt of Rs. 1,200 and in December, 1935 they were let into possession of the lands contracted to be sold, but no sale deed was ever executed or registered. On September, 10, 1938, the respondent commenced the present suit by his mother and next friend Manikyamma, claiming possession of the lands contracted to be sold and mesne profits. The propriety of the contract of sale was challenged before the Subordinate Judge, but, to quote the judgment of the High Court, " The courts below have found, "and the finding has not been challenged before us, that the " plaintiffs father had left a large amount of debts which " could not have been discharged from the income of the family " properties and that it was necessary and beneficial to sell " some of them for the purpose." The Subordinate Judge held, inter alia, that s. 54a of the Transfer of Property Act protected the appellants, and he dismissed the suit. His decision was reversed by the District Judge of Guntur, who made an order for possession in favour of the respondent, subject to his paying to the appellants Rs. 17,200, with interest from the date of suit. An appeal by the present appellants to the High Court of Judicature at Madras (Wadsworth and Patanjali Sastri, JJ.) was dismissed Leave to appeal to His Majesty in Council was given by the High Court of Judicature at Madras on the ground that the case involved a substantial question of law as to the true construction of

s. 53a of the Transfer of Property Act. That section was in the following terms

" 53a. Part Performance.—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 claim