This is an appeal from a judgment of the High Court of Judicature at Madras dated 22nd November1, 1943, affirming the judgment of the District Judge of Guntur dated 20th April, 1942, who had allowed the respondent’s appeal from the judgment of the Subordinate Judge of Bapatla, dated 31st July, 1939.

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 section 53-A of the Transfer of Property Act.

That section is in the following terms:

“53-A. Part performance.- Where any person contracts to transfer for consideration any immoveable 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 no 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:

Provided that nothing in the section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”

The facts giving rise to this appeal are not now in dispute, having regard to the findings of the courts in India. The respondent and his father constituted a Hindu joint family. The respondent’s father died on 4th October, 1935, leaving him surviving his widow and the respondent, who was then and is still a minor.

Prior to his death the respondent’s father had incurred certain debts, including a debt of Rs. 16,000 owing to the appellants and secured by two promissory notes and debt of Rs. 1,200 owing to one Ramayya and secured by a mortgage. By an agreement in writing, dated 29th November, 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 upon 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 10th September, 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 plaintiff’s 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 section 53-A of the Transfer of Property Act protected the appellants and dismissed the suit. His decision was reversed by the Distr