Raghunath Bhagat and Others vs Sukan and Others

Wort, J.—This is an action in which one Raghunath Bhagat and others claim possession of a plot No. 90 in mouza Getlatu. They also in their plaint claim a declaration of their title. They claim to have purchased this property from one Radhanath Singh on 9th July, 1922. Their contention was that when they came to take possession of their purchase they found that they were obstructed by the defendants therein. The defendants'' case is this that they purchased a plot No. 88, from the same Radhanath Singh on 16th March, 1917, but that when they came to take possession of that plot, it was found that zarpeshgidars were in possession so Radhanath Singh gave in exchange to the defendants plot No. 90 which is in dispute. It is admitted that the plot is worth more than Rs. 100 and, therefore, the exchange should have been by a registered deed under the Transfer of Property Act.

The learned Subordinate Judge in allowing the appeal and dismissing the plaintiffs suit has relied upon the case of Syam Kishore De v. Umesh Chandra Bhattachajee 55 Ind. Cas. 154 : 24 C.W.N. 463 : 31 C.L.J. 75: he relies upon a passage in the judgment in that case to this effect:

It is well settled, as the result of a long series of decisions in this Court (Calcutta) that when in pursuance of an agreement to transfer property the intended transferee has taken possession though the requisite legal document a had not been executed and registered, the position is the same as if the documents had been executed, provided specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined.

It is stated in that case that the principle of law in India was based on the decision of Walsh v. Lonsdale (1883) 21 Ch. D. 9 : 52 L.J.Ch. 2 : 46 L.T. 858 : 31 W.R. 109 and Maddison v. Alderson (1883) 8 A.C. 467 : 52 L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821. The history of this doctrine in India is a long one, and one of the earlier cases is that of Veerareddi v. Bapireddi 29 M 336 : 1 M.L.T. 153 : 16 M.L.J. 395, where it was decided that the provisions relating to registration of a transfer under the Transfer of Property Act were imperative and that, although a contract had been entered into and part of the performance had been given or possession had been given of Immovable property yet, having regard to the fact that the provisions of the Transfer of Property Act were not complied with, no title in equity or otherwise was created and consequently, the vendor could dispossess or could eject the purchaser. However the same Court came to a different view on this matter in the case of The Vizagapatam Sugar Development Company Limited and Another Vs. T. Muthuramareddi and Others, , being a Full Bench decision of that Court. Without going further into the matter, I may state that it is now generally recognized by all the High Courts in India that the doctrine applies to India. It is generally supposed that the case of Mohamed Musa v. Aghore Kumar 28 Ind. Cas. 930 : 42 C. 801 : 42 I.A. 1 : 17 B. L.R. 420 : 21 C.L.J. 231 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 (P.C.), a deci-of the Board of Judicial Committee, was an authority on the point. A reference is made therein to a statement by Sir John Strange in the case of Potter v. Potter (1750) 1 Ves. Sen. 437 : 27 E.R. 1128, to the effect that:

If confessed or in part carried into execution, it will be binding on the parties, and carried into further execution as such in equity.

In the case before the Board of Judicial Committee Lord Shaw expresses his view that " their Lordships do not think that the law in India was inconsistent with these principles. On the contrary it follows them."

However, there is a very considerable difference between the decisions of the High Courts as to whether this principle is in any way affected by the fact which exists in some cases, namely, that the period or the time during which the plaintiff would be entitled to claim specific performance had passed by reason of the provisions of Article 113, Limitation Act. The authorities have been reviewed in the case of Kalipada Basu and Others Vs. Fort Gloster Jute Manufacturing Co. Ltd., . In this case it was decided that in that particular suit the plaintiff''s right was barred by three years'' rule of limitation. It is to be noticed, however, that the principle which I have stated in the earlier part of my judgment is a principle which was laid down by the English Court of Chancery. But what has not been noticed either in the judgment of Mookerji, J., in the case to which I have referred or any other of the decisions of the other High Courts is that although the principle is an English one yet in England there is no definite period of limitation in an action for specific performance. The question of laches may arise; but that, however, is another matter, as in this case, in my judgment, the question of limitation does not arise. Article 113 fixes the date from which time runs as that on which, the person seeking specific performance has notice that the performance is refused. It is difficult to fix a date in this case from which it could be said that performance was refused; but it certainly cannot be earlier than the date upon which the successor-in-title and interest of Radhanath Singh sought to recover possession as against the defendants.

Assuming, therefore, for the moment that the decision of the Calcutta High Court in the case of Kalipada Basu and Others Vs. Fort Gloster Jute Manufacturing Co. Ltd., . should be followed, the rule in that case does not exclude the defendants from setting up this defence in this action for the reasons which I have stated. I should like to add, however, that'' the point decided in the case to which I have just made reference is a debatable one and do not decide in this case that it should be followed.

The appeal be dismissed with costs.

James, J.

I agree.