Abdul Rehman and Another vs Rusla

Kamlesh Sharma, J.—This appeals the instance of appellants-defendants is directed against the decree and judgment dated 10.1.1991, passed by District Judge, Chamba, Division at Chamba, whereby their appeal was dismissed and decree and judgment dated 24.5.1950 of Senior Sub Judge, Chamba, was affirmed. Senior Sub Judge had decreed the suit of the original respondent-plaintiff Rusla for declaration to the effect that he is owner in joint possession of the suit land to the extent of 2/3rd share and the order dated 31.7.1986 of Assistant Collector 1st Grade, Churah is illegal and not binding. Original respondent-plaintiff Rusla has died during the pendency of this appeal and his legal representatives have been brought on record. The suit land is detailed in Paragraph-2 of the impugned judgment of District Judge.

The brief facts of the case are that the, land in dispute was owned and jointly possessed by Amdu, Salama and Gulama in equal shares, who were real brothers. Appellants-defendants are the successors-in-interest of Salama whereas the original respondent-plaintiff Rusla was the successor-in-interest of Gulama. Amdu had gifted his 1 /3rd share in the land in dispute in favour of Lal Deen by way of gift which fact has not been disputed by appellants-defendants as they themselves, claim that Lal Deen had sold his l/3rd share in the land in dispute in favour of their predecessor-in-interest Salama by writing dated 14.3.1967 Ext.D-l. Their precise case is that Lal Deen having sold his l/3rd share in favour of Salama by writing dated 14.3.1967 Ext.D-1 was not competent to gift the same land in favour of original respondent-plaintiff Rusla by gift deeds dated 21.8.1990 and 26.5.1981 on the basis of which mutation orders dated 8.10.1983 Ext. PC and dated 28.2.1982 Ext. PD were passed despite objections of the appellants-defendants. Thereafter, the original respondent-plaintiff Rusla moved an application on 12.6.1985 before Assistant Collector, Churah for partition of his 2/3rd share in the disputed land which was dismissed on 31.7.1986 Ext. PE relying upon the writing dated 14.3.1967 Ext.D-1, which gave cause of action to original respondent-plaintiff Rusla to file civil suit out of which the present appeal has arisen. .

This Court has heard learned counsel for the parties and gone through the record. At the time of admission, the following substantial question of law was framed by this Court:

Whether on a proper construction of the deed Ext.D-1 the appellants-defendants were entitled to the benefit of the doctrine of part performance u/s 53-A of the Transfer of Property Act.

To answer this substantial question it is necessary to notice that both the Courts below have concurrently held that writing dated 14.3.1967 Ext.D-1 did not create any right or title in favour of Salama predecessor-in-interest of appellants-defendants for the reasons that it is drafted in an un-intelligible, language and it is difficult to ascertain its real import and also that it cannot be read in evidence for want of registration as a non-testamentary instrument purporting to create or extinguish any right, title or interest in the immovable property of value of Rs. 100/- or upward is required to be registered compulsorily u/s 17(l)(b) of the Registration Act, irrespective of the fact that the provisions of Transfer of Property Act were not applicable to that part of the country where the land in dispute, is situated. In this view of the matter, the trial Court had not doubted the execution of writing dated 14.3.1967. Ext.D-1 but the first appellate Court had held it shrouded in suspicious circumstances despite the evidence of scribe Musadi Ram (DW-2) and one of the marginal witnesses, Panchhi (DW-3), who have sated that Lal Deen had received a sum of Rs. 500/- from Salama on 14.3.1967 and had executed the writing Ext.D-1 in his favour by putting his thumb mark thereon. However, Lal Deen, who has appeared in the Court, has categorically denied that he has executed any such document or had thumb marked it.

Learned counsel appearing for the appellants-defendants has not been able to explain any of the suspicious circumstances shrouding the execution of writing dated 14.3.1967 Ext.D-1 as pointed out by the first appellate Court in Paragraph 14 of its judgment to reject the version of appellants-defendants that Lal Deen has actually sold his share in land in dispute in favour of Salama, a the predecessor-in-interest of appellants-defendants. This Court is in agreement with first appellate Court that in view of the facts and circumstances on record, as stated in Paragraph-14 of the impugned judgment, the writing dated 14.3.1967 Ext.D-1 cannot be accepted as genuine document as a proof of title of the share of Lal Deen in the land in dispute in favour of appellants-defendants. In view of these findings of Court below which the appellants-defendants have not been able to assail on any legal and valid ground, it cannot be said that they are entitled to the benefit of doctrine of part performance as provided u/s 53-A of Transfer of Property Act. Firstly, there is no such plea raised by them in their written statement and, secondly, the ingredients of part performance are neither averred not proved on record. These are as prescribed in Nathulal Vs. Phoolchand,

(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonably certainty;

(2) that 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;

(3) that the transferee has done some act in furtherance of the contract; and

(4) that the transferee has performed or is willing to perform his part of the contract.

(Also see: 1996 (2) S.L.C. 95)

All these conditions are not fulfilled in the present case. After discarding the writing dated 14.3.1967 Ext, D-l there is nothing on record to fulfill first and second conditions. Otherwise also, it has not been shown that Salama came to possess or retain the possession of the land in dispute in part performance of any contract. If he was, already in possession of the share of land gifted to Lal Deen by Amdu, as stated in the writing Ext.D-1, his possession cannot be held to be in part performance of the contract enshrined in writing dated 14.3.1967 Ext.D-1. Further there is nothing on record to suggest that retention of the possession of the share of Lal Deen by Salama or by the appellants-defendants was in pursuance of any contract. In this behalf, reference to the observation of learned Judges of Supreme Court in Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, s relevant:

There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in possession with a claim of change in character. Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere retention of possession, quite legal and valid, if mortgage with possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale.

Above all, on the basis of writing dated 14.3.1967 Ext.D-1, which has been held inadmissible in evidence for want of registration, the appellants-defendants cannot claim the benefit of part performance u/s 53-A of the Transfer of Property Act. The doctrine of part performance is equitable doctrine which cannot override the specific provisions of Section 49 of the Registration Act and create a title in favour of the appellants-defendants.

In Full Bench judgment of Lahore High Court in AIR 1941 407 (Lahore) , the learned Judges have categorically held that equitable doctrine enshrined in Section 53-A of the Transfer of Property Act cannot operate so as to over-ride the provisions of Section 49 of the Registration Act to make an unregistered document to create title. It is further held in this judgment that when the terms of transfer have been reduced in writing, Section 91 of Evidence Act bars the production of any other evidence of the transfer. In view of this, the feeble attempt of learned counsel for the appellants-defendants that the transaction of sale by Lal Deen in favour of Salama may be treated as an oral sale is futile.

The result of this decision is that this Court has no hesitation to hold that appellants-defendants are not entitled to the benefit of doctrine of part performance u/s 53-A of the Transfer of Property Act on the basis of writing dated 14.3.1967 Ext.D-1.

No other point has been raised on behalf of the appellants-defendants. Accordingly, the present appeal is dismissed having no merit.