Report No. 70

49.41. Reasons given by the Supreme Court.-

In the Supreme Court, the judgment of the Allahabad High Court1 was referred to, but the Supreme Court did not express any opinion as to the correctness of the view taken by the High Court, since in the case before the Supreme Court, the firm was seeking to "enforce rights" under the unregistered case and to seek a decree for possession against the lessor. Unfortunately, the attention of the Supreme Court was not drawn to the Andhra and other cases.

One may also be permitted to observe, with great respect, the Allahabad judgment is clearly based on the proposition that although, in form, the person before the Court was the plaintiff, in fact, he was merely seeking to debar the defendants from asserting certain rights, namely, he was seeking to debar them from interfering with the possession into which the plaintiff had entered with the consent of his transferor after the execution of a transfer in his favour.

1. AIR 1939 All 611.

49.42. Need for clarification.-

In the circumstances, the question remains to be considered whether a clarification on the subject under discussion would not be desirable. There hardly appears to be any reason why the beneficial object of preventing fraud-which was the main consideration which gave rise to the doctrine of part-performance-should be laid aside and the matter left to be determined by consideration of the accidents of litigation. So long as the person claiming part-performance does not claim title against third parties but merely seeks to compel the transferor (or his successors in interest) to adhere to the contract, the equities should be in his favour.

49.43. Question whether possession should exist on the date of suit.-

So far as the factual situation that was in issue before the Supreme Court is concerned, the essential question of law that arises is whether the section requires, or ought to require, that the transferee who obtains possession in part-performance must also be in possession at the time when he seeks relief. While the section speaks of a transferee who has obtained possession or has continued in possession, it does not make any commitment as to whether it should also be proved that the transferee was in possession at the time of the suit.

One would have thought that once the transferee has obtained possession, his subsequent dispossession should not come in the way of claiming equities on the basis of part-performance, because he has done all that he could under the contract, and has acted on the representation made by the transferor. After all, there is no magic as such in the requirement that the transferee must have obtained possession.

This requirement has beer inserted only to show unequivocally that part-performance of the contract, so far as the transferee's side is concerned, has taken place. Change in the possession is an act of part-performance both of the person who gives and of the person who takes possession. In Morphett v. Jones, (1818) 1 Swans 172 (181), Sir Thomas Plumber said-

"The acknowledged possession of a stranger In the land of another is not explicable except on the supposition of an agreement and has, therefore, constantly been received as evidence of an antecedent contract, and as sufficient to authorise an inquiry into the terms; the court regarding what has been done as a consequence of contract or tenure."

Where the transferee has taken possession, this requirement is satisfied, and the fact that subsequently the transferor illegally dispossesses the transferee ought not to make a difference to the application of the doctrine. On a proper consideration of section 53A even as it now stands, it stands to reason that a transferee, who otherwise satisfies the section, cannot be debarred from claiming that possession, at least from the transferor or the person claiming under him, excluding of course, the case already stated by the proviso namely, the right of a transferee for consideration who has not notice of the contract or of the part-performance.

There are no practical considerations which compel the insertion of a rigid requirement that the transferee must be in possession at the time of seeking relief. And considerations of justice seem to be in favour of the transferee, because on any other view a transferor can, by his unilateral act, defraud the transferee of a valuable protection given to him by the law on weighty considerations of justice.

49.44. Privy Council Case.-

There is a Privy Council case1 in which there are dicta to the effect that section 53A is meant for defendant. The observation in that judgment, however, must be read with the facts of the case. It does not say that a person cannot claim part-performance otherwise than as a defendant in any case.

1. Probodh Kumar Das v. Gantmeri Tea Company, AIR 1940 PC 1

49.45. Recommendation for change.-

It is, therefore, proper to incorporate the liberal view on the subject. Such a wide view would not defeat the law of registration. The transferee claiming part-performance would still not be able to defeat the rights of bona fide transferees.

49.45. Recommendation for change.-

It is, therefore, proper to incorporate view would be to amend section 53A by adding an Explanation somewhat on the following lines:

"Explanation.- For the purposes of this section, it is immaterial whether the transferee or a person claiming under him is a plaintiff or a defendant."

The words "the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him" may also be revised as follows (in the fourth para of the section):-

"The transferor or any person claiming under him shall be debarred from enforcing or maintaining against the transferee and persons claiming under him."

It should also be provided that a person who obtains or continues in possession, but is dispossessed otherwise than in due course of law, can claim the benefit of the section.

Amendment should also be made regarding the judgment creditor.1

1. Para. 49.18, supra.