The main legal point established in the judgment is the interpretation and application of Section 53A, T.P. Act, in relation to an agreement for sale of immovable property made by a guardian on behalf of his ward.

Patanjali Sastri, J.

1. These second appeals have been placed before a Division Bench as they raise a question of some general importance as to the applicability of Section 53A, T. P. Act, to an agreement for sale of immovable property made by a guardian on behalf of his ward. The facts giving rise to the case are not now in dispute. On 29th November 193S the plaintiffs mother and guardian entered into an agreement to sell the suit lands to defendants 1 and 2 (hereinafter referred to as the transferees) for discharging certain debts due by the deceased father of the plaintiff. The consideration for the sale was Rs. 17,200 out of which Rs. 16,000 was to be adjusted towards the debts due to the transferees themselves on promissory notes and Rs. 1200 was to be paid in discharge of a mortgage debt due to a third party. It is common ground that the transferees paid off this mortgage debt and were placed in possession of the properties in pursuance of the contract of sale, but the transfer had not been duly completed by the execution and registration of the deed of sale as provided for in the agreement. Taking advantage of this circumstance, the plaintiff, who is still a minor, sued by his mother appointed as next friend, for possession of the properties, impugning the transaction as not binding on him as there was no necessity for his guardian to sell the lands for discharging the debts which, it was alleged, could have been liquidated out of the income of the large extent of immovable property left by his father.

2. The Courts below have however 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. While recognising, accordingly, that, if the guardian had completed the sale by the execution and registration of a deed of sale, it would have bound the plaintiff under the Hindu law, the Courts below differed as to the legal effect of the mere executory agreement of sale made by the guardian, though followed by delivery of possession in furtherance of such agreement. The trial Judge held that Section 53A, T. P. Act, was applicable to the transaction in question and barred the plaintiffs claim. The lower appellate Court however took the view that an agreement for sale of a minors property by his guardian was void, and that its part performance did not fall within the section and was no valid defence to an action brought by the minor to recover the property. It accordingly passed a decree for delivery of possession of the suit properties to the plaintiff on condition of the latter refunding to the transferees the sum of us. 17,200 with interest at nine per cent. per annum from the date of suit. Prom this decree the transferees have preferred S. A. No. 1315 of 1942 and the plaintiff has preferred S. A. No. 1440 of 1942 objecting to the direction to refund.

3. Now Section 53A was inserted in the Transfer of Property Act by the Transfer of Property (Amendment) Act, 20 of 1929. Before the Amending Act, the Courts in this country were showing a marked tendency to import into the law of India the English equitable doctrine of part performance, so as to nullify, in effect, specific statutory provisions governing transfer of title to immovable property. The true position, however, was elucidated by the Privy Council in G.H.C. Arifi v. Jadunath Majumdar and Pir Baksh v. Mohamed Taher. In the latter case their Lordships observed:

The result is that, under the law applicable to the present case an averment of the existence of a contract of sale, whether with or without an averment of possession following upon the contract, is not a relevant defence to an action of ejectment in India. If the contract is still enforceable the defendant may found upon it to have the suit stayed, and by suing for specific performance obtain a titl