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TMI Blog1959 (3) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... 1915, for a sum of Rs, 700/-. This mortgage was kept alive by subsequent payments. In order to discharge this mortgage and other simple debts, Suramma conveyed this property, under Ex. B-5 dated 3-5-1934, to one Nagayya. It was stipulated that the vendee should retain a part of the consideration and utilise it to discharge the encumbrance on that property. Since the vendee did not carry out his obligation, Suramma was put to the necessity of executing a sale deed in favour of Padmanabhudu on 8-l-1934. 3. On this part of the case, there are inconsistent versions presented by the appellant. In the written statement filed in a prior litigation, it was stated that the sale in favour of Padmanabhudu preceded the sale in favour of Nagayya, whereas in the present action, the order is changed and the sale in favour of Nagavya is shown to be earlier. This inconsistency is reflected even in the oral evidence. That apart, the plaintiff denies the existence of a sale in favour of Padmanabhudu. 4. To go back to the narration, this alleged sale was not registered. However, the fourth defendant seems to have got into possession of this property but when under what circumstances he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson claiming under Mm shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has-taken or continued in possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 9. Before we determine the issues raised above, it is useful to consider the nature of the right conferred by this section. This section gives effect to the equity of part performance. It has introduced partially this doctrine as obtaining in England into the statute of India. By furnishing a statutory defence, it enables a party to maintain possession who could not; obtain a registered document but performed his part of the contract. The object of this provision is to disable the transferor or person claiming under him from asserting his title in derogation of the rights of the other contracting party who had taken some action in performance of the contract. Thus, this section gives a right to the defendant to protect his possession as aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat judgment, there is an instructive discussion on the nature of a Hindu Widow's estate and the rights which a reversioner acquires when the succession opens. This is what Gajendragadkar J. observed in the course of his judgment: There can be no doubt that, if the literal construction for which Mr. Pradhan contends is accepted, a contract of sale validly made by a Hindu widow would be defeated at the hands of the reversioner and that clearly is opposed to consideration of equity. Besides, it is inconsistent with the spirit of Hindu law because if the Hindu widow had gone one step further and had sold the property for a legal necessity, the sale would have bound the reversioner. Therefore, in our opinion, it would be more reasonable to put upon the words 'person claiming under the transferor' a somewhat liberal construction. Though the reversioner does not claim through the widow as such he may be said to claim under her in the sense that he is the successor-in-title of the estate after the 'widow's' death and the extent of the estate 'which would devolve upon him always depends upon the exercise by the widow of her undoubted right to dispose of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same properties to Padamanabhudu. But in the cross-examination, he gave the date of sale to Padamanabbudu as January 1934. This is inconsistent with his earlier statement, because the sale to Nagayya was in May 1934. The Trial Court was not prepared to act on the testimony of this witness on this aspect of the case. The learned District Munsif observed: Suramma probably first executed the unregistered sale deed in favour of Padmanabhudu for the discharge of the debt but subsequently Nagayya perhaps interfered and wanted to lake this property on the specific understanding that he would discharge that debt and also another debt of Pulleti Ramayya and pay her maintenance at 6 bags per year . It may be mentioned here that this is opposed to the case of the fourth defendant in the written statement filed in this case. Be that as it may, there are two conflicting versions as to which of the sales was earlier not only in the evidence of D. W. 1 himself but also in the two written statements, one filed in O. S. No. 210 of 1941 (D. M. C. Narsapur) and the other in the present litigation. 14. Coming to D. W. 2, he makes a bald statement regarding the execution of the sale. Curiously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that section, parole evidence could be adduced to prove its existence and the contents of that document. In construing Section 53A, resort could be had to Section 66 of the Indian Evidence Act; in other words, the existence and contents of the document could be established by secondary evidence. 18. One of the essential ingredients of Section 53A is that the terms necessary to constitute the transfer should be ascertained with reasonable certainty. It is plain that the section lays stress on the terms of the contract IF it is not possible to gather the terms of the contract from secondary evidence, the section cannot come into operation. Have we in this case any material from which the terms of the sale could he ascertained with reasonable certainty? As We have already stated, only two persons speak to the execution of this document, namely, D. Ws. 1 and 2, They merely said that a sale deed was executed. D,W. 1 was not certain as to the extent of the land. In his chief-examination, he asserted that what was sold was Ac. 1. 50 cents, but in the cross-examination he acknowledged his ignorance of the extent of the land by saying that he did not know whether the fourth defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Devarakonda Suramma was used in a prior litigation does not seem to be entitled to much weight, in view of his admission that it was Ammanna that was looking into the affairs of Atchamma, the- adoptive mother of the fourth defendant, in the prior litigation, namely, O. S. No. 210 of 1941. Could this be regarded as sufficient material on which the case of destruction or loss of a document could be based? For one thing, D.W. 3 does not know anything about that document. He was only told by someone that he had seen it. How then could he prove its loss the existence of which he had no knowledge? Moreover he does not definitely speak to the loss of the document. All that he stated was that it was not found by him and therefore it seemed to have been lost. There is not even a whisper of his having conducted a search for it and was unable to trace it. The recitals in the written statement in that regard are significant. This is what is stated in paragraph 4 of the written statement:-- The whole record relating to the said land was lost at the time of the death of this defendants adoptive father and mother. Now, after some investigation and with great difficulty 'he certified co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of D. W. 2 militates very much against the fourth defendant having taken possession of the property in pursuance of the sale. In the chief-examination, he stated that Padmanabhudu was given possession at the time of the settlement. According to him, the document was executed three or four days after the settlement was effected, which means that it was not pursuant to the agreement that possession was given but even earlier. In the cross-examination he stated that Suramma was in possession of the property, by the time of the execution of Ex. B-5. The present case of the appellant is that Ex. B-5 came into existence four months after the sale in favour of Padmanabhudu. This implies that no possession was obtained by the vendee in part performance of the contract. If it should be assumed that the sale under Ex. B. 5 was earlier, then the sale of Padmanabhudu would convey nothing because the title to the property had already passed to Nagayya under Exhibit B. 5.' This is also pointed out by the learned District Munsif, who observed that admittedly the last unregistered sale deed in favour of Padmanabhudu was said to have been executed by Suramma alone who had no right si ..... 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