9911796707
TMI Blog1943 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... im for possession under Section 53A of the Transfer of Property Act, 1882. The trial Court did not believe the plaintiff's version regarding the loan of ₹ 330 and found that the plaintiff had orally sold the land to the defendant, had received at least ₹ 580 from him and had put him in possession of the land. But it decreed the plaintiff's claim for possession as the agreement of sale was not in writing signed by him or on his behalf. The decree was confirmed in appeal, and the original defendant having died, his sons have presented this second appeal. 2. The defence of part performance as embodied in Section 53A of the Transfer of Property Act requires four conditions to be fulfilled, viz. (1) that there should be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suming that it was an application signed by the plaintiff as alleged, the contract of sale must have preceded it. The entry contains a recital of a past event and requests that it should be entered in the mutation register. It is not itself the contract or agreement of sale. A contract in writing or a written agreement is a sine qua non under Section 53A of the Transfer of Property Act, 1 that is to say, the writing relied upon must itself be the contract, It is true that such written agreement may be the embodiment of what has already been agreed upon by the parties, but what is written must be the agreement itself. As pointed out by Dunkley J. in Maung Ohn v. Maung PO Kwe 1 [1938] Ran. 692. a distinction must be drawn between a writing, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contract of sale, but it cannot be said to be the contract itself, which must have pre-existed that application and was expressly described as an oral sale. Such an application is not sufficient to satisfy the requirements of Section 53A of the Transfer of Property Act, and the defence must, therefore, fail. 3. It is next contended that at least the amount received by the plaintiff as consideration for the sale should be ordered to be refunded before the defendant is deprived of his possession. It is not necessary to decide in this case whether such a refund can be ordered in a case like this, as the defendant did not ask for it in his written statements. He put in two written statements, exhibits 10 and 20, and in neither of them did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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