The facts giving rise to this appeal are briefly these : The lands in suit originally belonged to Gunai, the father of the plaintiff who died in 1942. According to the plaintiffs, Gunai was insane for some years before his death, and the land was actually in possession of the plaintiffs. In 1942, the lands and the late Gunai were left in charge of the defendants; and the plaintiffs left for their 'pam' house in another locality. On the return of plaintiffs and on their demand for possession, the defendants alleged that they had purchased the land from Gunai.

[2] The defendants contested the suit denying that Gunai was ever insane and asserting that Gunai agreed on 11th June 1941 to sell the land to defendants, for a sum of Rs. 160 out of which Rs. 100 was to be paid there and then, and the balance Rs. 60 was to be paid before the next following Baisakh. The defendants further as­serted that the terms of the contract were reduc­ed to writing, though no registered deed of sale was executed, and the defendants were placed in possession of the property in execution of the contract. They further asserted that they paid Rs. 100 at the time of the contract, and that they paid the balance of Rs. 60 in the following as win, that is to say, within the time prescribed.

[3] The Court of first instance dismissed the suit, holding that Gunai was not insane and that B. 53A, T, P. Act, was a bar to plaintiffs' success.

[4] Plaintiffs appealed and the appeal was heard by the Additional Subordinate Judge, Assam Valley Districts. The learned Judge agreed with the Court of first instance that Gunai was not insane at the time of the contract, but held that as the sale was not registered, defen­dants acquired no title under the contract, and that S. 53A, T. P. Act, was no bar. The accordingly allowed the appeal and decreed the suit, but without costs. Defendants have appealed.

[6] The only question for our consideration is whether S. 63A, T. P. Act, is a bar to plaintiffs' success or not. There is no longer any dispute that there was an agreement to sell and that possession of the land was delivered to defen­dants in execution of that agreement, nor that the agreement was reduced to writing. The de­fendants alleged that they had made payment in full under the terms of the contract, and this was not apparently challenged. At all events, no issue on this question was framed, and the defendants offered evidence in support of their story of payment which was apparently accepted as reliable.

[6] The learned Judge in the Court of appeal below relied on certain observation in the judg­ment of Chakravarti J. in Birendra Kishore Boy v. Nuruzzaman Peada and others, 49 O.W.N. 649. In that case, the person claiming under the deed which ought to have been regis­tered, sued as plaintiff. The headnote contains these passages :

"For the English doctrine of part-performance cannot be applied in India with such a result as to create with­out a registered instrument an interest which a statute says can only be created by such an instrument.

And the position will be the same whether the plain­tiff wants to found his title or the defendant to set up defence on the equities claimed." The judgment in that case turns entirely upon the question how far the English doctrine of part-performance can be invoked in India There is only one reference in the judgment to S. 63A, T. P. Act, and that reference shows that in that case, S. 53A did not in terms apply. That judg­ment cannot, therefore, be regarded as an expla­nation or interpretation of 8. 5SA.

[7] Mr. Ghose for respondents referred to the judgment of Lord MacMillan in Pir Bux v-Sardar Mahammed Tahar, 61 I. A. 388: (A.I.B. (2l) 1934 P.O. 235) and argued that S. 53A imports into Indian law part of the English equitable doctrine of part-performance, and that conse­quently the question to be considered was how far the English doctrine applied.

[8] In our opinion, this is the wrong approach. It does not matter in the present case wha

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