IMPORTANT POINT
Part performance - Doctrine of part performance is to be used as a sword and not a shield.

MAHESH GROVER, J.

1. The facts of the case, in brief, are that one Birkha son of Risal Singh was the owner of the land to the extent of 1/2 share of 361 kanals and 10 marlas. After his death, his share was inherited by his widow-Smt. Rumali (respondent no.13) and his four minor daughters, namely, Bala, Bimla, Bohati and Kamla (respondent nos. 14 to 17). Bala and Bohati have since died. Kehar Singh (respondent no.12) was appointed as General Power of Attorney by Smt. Rumali to act on her behalf and on behalf of her minor daughters. Kehar Singh gave the suit land to one Santokh Singh, who was predecessor-in- interest of respondent nos. 4 to 11 (respondent no.4 has since died) for a period of ten years beginning from Kharif,1965 to Kharif,1975. Under the instructions of Smt. Rumali, Kehar Singh sold the suit land for Rs.9000/- to Guman Singh, Nidhan Singh and Gujjar Singh (respondent nos. 1 to 3 herein) and Santokh Singh. The sale deed was duly executed and Rs.9000/- were to be paid before the Sub Registrar at the time of its registration, but on the anointed day, Kehar Singh came to them and asked them to pay Rs.9000/- as he required the same for another transaction before the Sub Registrar. The amount was accordingly paid outside the office of the Sub Registrar. Thereafter, the sale deed remained unregistered. Santokh Singh was already in possession of the suit land as a lessee since 3.7.1965 and after the execution of the sale deed, he continued to be in possession as a prospective vendee. The sale deed could not be registered as Kehar Singh did not turn up to get the same registered.

2. On 11.2.1971, Kehar Singh sold the suit land to Manga Singh, defendant-appellant for an ostensible consideration of Rs.90,000/- vide a registered sale deed. The other half share which was not in the share of Smt.Rumali and others was purchased from Man Singh and others by Guman Singh, Nidhan Singh and Gujjar Singh along with their brother Phoola vide registered sale deed dated 30.1.1969.

3. In their suit filed for declaration and consequential relief of permanent injunction, Guman Singh, Nidhan Singh, Gujjar Singh and legal representatives of Santokh Singh had pleaded that they were always ready and willing to perform their part of contract and Kehar Singh kept on telling them that they need not worry about the registration of sale deed. The plaintiffs- respondents claimed that they were entitled to the protection of the provisions of Section 53-A of the Transfer of Property Act (for short, ‘the Act’). The plaintiffs pleaded that the appellant had purchased the suit land with open eyes knowing fully well that Kehar Singh had already sold it and had received Rs.9000/- and, therefore, he was not a bona fide purchaser for valuable consideration.

4. The defendant-appellant along with Kehar Singh contested the suit by filing one written statement, while Smt.Rumali and her daughters, Bimla, Bohati and Kamla filed separate written statement. The fourth daughter of Smt.Rumali, namely, Bala did not choose to contest the suit.

5. In their written statement, the defendant-appellant and Kehar Singh alleged that the suit was collusive and has been filed at the behest of Smt.Rumali and her daughters and that the plaintiffs had no right on the suit property as neither the execution of the sale deed was established nor it was registered and that even if it is presumed that there was some contract between Smt.Rumali and the plaintiffs, then, they were estopped from filing the present suit by their own conduct as they never filed a suit for specific performance for enforcement of the contract in their favour. It was further contended that the appellant had purchased the suit land for a consideration of Rs.90,000/- on the strength of a registered sale deed by paying the market value for the same and that he was bona fide purchaser for consideration without any notice and, therefore, the sale in his favour was protected by the provisions of Section 41 of