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PETITIONER: CHALIAGULLA RAMACHANDRAYYA

       Vs.

RESPONDENT: BOPPANA SATYANARAYANA & OTHERS

DATE OF JUDGMENT: 10/05/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1964 AIR  877            1964 SCR  (3) 985

ACT:    Part  Performance -Transfer of interest in  the  property under   contract-Absence  of  registered   instrument-Indian statutory           requirement-English            Equitable Doctrine--Applicability Transfer of Property Act, 1882  (Act 4 of 1882), s. 53A.

HEADNOTE:   The  plaintiffs brought a suit for partition, two of  them claimed to be the reversioners of Chandrappa and the third a purchaser of the interest of the reversioners, defendants 4, 5  and  7. They were thus entitled to a 5/6th share  of  the properties  while  the  6th  defendant  was  entitled  as  a reversioner of Chandrappa to the remaining 1/6th share.  The property was in the possession of the three sons of Nagayya, the first three 986 defendants,  who  denied these properties ever  belonged  to Chandrappa  and  also  that  the  plaintiffs  1  and  2   or defendants  4 to 7 were his reversioners.  The main  defence was that even if the properties belonged to Chandrappa,  the defendants’  father  Nagayya  became entitled  to  these  as Chandrappa’s   illatom   son-in-law,  on  the   basis   that Chandrappa  had  brought Nagayya into his  family  under  an arrangement that the latter would marry his wife’s  sister’s daughter  Mangamma  and inherit the  entire  property  after Chandrappa’s death.  The trial court dismissed the suit.  On appeal  the High Court set aside the order and  decreed  the suit.   On certificate, the only contention, raised  by  the appellant  in  this  court was  that  even  though  specific performance  had not been sought, the contract itself  would have the effect of transferring interest in the property  to Nagayya on Chandrappa’s death.   Held  that  after enactment of s. 53A in the  Transfer  of Property Act, the only case in which the English doctrine of equity  of  part performance could be applied  in  India  is where  the  requirements of s. 53A are  satisfied.   In  the instant  Case,  53A  has no application.  It  must  be  held therefore that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under  the statute could be conferred only by a registered  instrument.

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The appeal, therefore, must be dismissed.   Challa  Papi Reddi v. Challa Koti Reddi, (1872) 7 Mad.   H C. R. 25; Bha’a Nahana v. Parbhu Hari, (1877) 2 I.L.R.  Bom. 67; Asita, Mohan Ghosh Moulik v. Mohan Ghosh Moulik,  (1016) 20 G.W.N. 901; Venkatayyamma Rao v. Appa Rao, (1916) L. R. 43 1. A. 138; Ariff v.  Jadunath Majamdar, (1930) I.L. R. 58 Cal. 1235, held inapplicable.     Ariff  v.  Jadunath Majumdar, (1931) L. R. 58  I.A.  91, relied on.

JUDGMENT:   CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  331  of 1961.    Appeal from the judgment and decree dated March 29, 1956, of  the Andhra Pradesh High Court in Appeal Suit No. 182  of 1950.   B. Manavala   Chowdhry  and  B.  K.  B.  Naidu,  for   the appellants.    Narasiah Chowdhry and R. Gopalakrishnan, for  Respondents Nos. 1, 2 and 8.  987   1963.  May 10.  The judgment of the Court was delivered by   DAS GUPTA J.-This appeal brought on a certificate  granted by the High Court of Andhra Pradesh is against a decision of that  Court  reversing a decree granted by  the  Subordinate judge, Masulipatnam, dismissing a suit for partition.    Of the three plaintiffs who brought the suit, two claimed to  be the reversioners of Boppanna Chandrappa, to  whom  we shall  refer to as Chandrappa, and the third a purchaser  of the  interest of some of the reversioners, viz.,  defendants 4,  5  and 7. According to the plaint the  three  plaintiffs were thus entitled to a 5/6th share of the properties  while the   6th  defendant  was  entitled  as  a  reversioner   of Chandrappa  to the remaining 1/6th share.  The property  was however  in  the  actual possession of  the  three  sons  of Nagayya who were impleaded as the first three defendants.    In contesting the suit these defendants denied that these properties had ever belonged to Chandrappa and further  that the plaintiffs 1 and 2 or the defendants 4, 5, 6 and 7  were his reversioners.  The main defence however was that even if the  properties  did belong to Chandrappa,  the  defendant’s father  Nagayya  became entitled to  these  as  Chandrappa’s illatom son-in-law.  The basis of this plea of illatom  son- in-lawship  was  said  to be  that  Chandrappa  had  brought Nagayya into his family under an arrangement that the latter would  marry his wife’s sister’s daughter Mangamma and  help him  in  cultivation and management of  the  properties,  in consideration  of  which Nagayya would  inherit  the  entire property after Chandrappa’s death.    The Trial Court held that all the suit properties  except a small portion did belong to Chandrappa 988 and  the  plaintiffs  would be entitled to  5/6th  share  of Chandrappa’s  properties  and  the  6th  defendant  to   the remaining  1/6th share, on the death of  Chandrappa’s  widow Ramamma.  He however accepted the defence case that  Nagayya had become entitled to the property on Chandrappa’s death as Chandrappa’s  illatom son-in-law and  accordingly  dismissed the suit.    On  appeal, the High Court held that the custom by  which an  illatom  son-in-law  inherited  property  could  not  be extended  to a case where the marriage took place  not  with the  daughter  of the owner of the property  but  with  some

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other  relation  of his.  The High Court  also  rejected  an alternative plea that appears to have been raised before  it that Nagayya became entitled to the property on the basis of a contract between him and Chandrappa.  In this view of  the law, the High Court set aside the order passed by the  Trial Court and decreed the suit.    It is no longer disputed before us that the rights of  an illatom son-in-law cannot be claimed by a person who under a promise from the owner of the property that he would inherit the  property  marries  not  the  daughter  but  some  other relation  of  the owner of the property.   ’The  alternative contention  which  was  raised before  the  High  Court  has however  been  repeated before us, It has  been  urged  that there  was a good and valid contract between Chandrappa  and Nagayya, that in consideration of Nagayya marrying  Mangamma and  looking after Chandrappa’s property,  Chandrappa  would make him his heir and that the consequence of this  contract was  that  Nagayya became Chandrappa’s heir.   The  question here is not whether on Chandrappa’s death Nagayya could have obtained specific performance of the alleged contract.  For, assuming  that there was a contract as alleged and  that  it was  a valid contract, enforceable at law and also  such  of which specific performance could  989 have  been  obtained by proper proceedings  in  courts,  the appellants’   rights   would  be  to  seek   such   specific performance.   The contention on behalf of the appellant  is that even though specific performance has not been sought or given   the  contract  itself  would  have  the  effect   of transferring   interest  in  the  property  to  Nagayya   on Chandrappa’s death.    In support of this contention the learned Counsel  relied on  three  decisions  of High Courts in  India  and  also  a decision of the Privy Council.  The first decision in  point of  time  is the case of Challa Papi Reddi  v.  Challa  Koti Reddi (1).  The facts there were that the defendant’s father who  was selected by Musalireddi, in pursuance of a  special custom,  as a son-in-law who should take his property as  if he  was  a son entered into possession of  the  property  on Musalireddi’s  death. lie then associated with  himself  the plaintiff in the management of his property on promise of  a share.  The plaintiff continued thus for many years,  aiding in  the management and improvement of the property, until  a short time before the suit was brought, the first  defendant turned  the plaintiff out of doors and refused to  give  him the promised share.  The High Court of Madras held that  the agreement by the first defendant’s father was to the  effect that the plaintiff was being admitted to the rights of a co- sharer  and  further, as there was a  complete  adoption  or ratification of the father’s contract by the first defendant he ought to be held to it and the plaintiff was therefore  a co-sharer in the property.   It  has  to be mentioned that this case was  decided  long before  the Transfer of Property Act, 1882 was  enacted  and the  question whether a written document was  necessary  for transfer did not come up for consideration.   In  Bhalla Nahana v. Prabhu Hari (2), which was  the  next case cited, what happened was that one Gosai (1) (1872) 7 Mad.  H.C.R. 25. (2) (1877) 2 I.L.R. Bom. 67. 990 Ramji  induced the parents of the defendant Prabhu  Hari  to give  him  in adoption by an express promise to  settle  his property upon the boy but died before such settlement  could be executed.  Nearly 30 years after his death Ramji’s  widow

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Bhani gave effect to her husband’s undertaking by  executing a  deed  of gift of his property in her hands in  favour  of Prabhu  Hari.  The reversioner to Gosai Ramji’s estate  con- tested  in  a  suit brought by him,  the  validity  of  this alienation.   In holding that the alienation was valid,  the High  Court of Bombay pointed out that the performance of  a husband’s  contracts  was  among the  proper  and  necessary purposes  specified  by Hindu jurists under  which  a  widow could alienate property and said further that the equity  to compel  the  heir and legal representative of  the  adoptive father  specifically to perform his contracts  survived  and the  property  in the hands of his widow was bound  by  that contract.   Whether Prabhu Hari would have been entitled  to the property even in the absence of the deed of gift did not fall for consideration in that case. It  also  deserves to be Mentioned that this case  was  also decided  several years before the Transfer of  Property  Act came into force. In  Asita Mohon Ghosh Moulik v. Mohan Ghosh Moulik (1),  one of  the  questions in dispute was whether  the  adopted  son could  take  an  equal  share with  the  son  Answering  the question  in  the affirmative, the High  Court  of  Calcutta after deciding that under the Hindu Law the adopted son  was entitled  to an equal share, also referred to  an  Ikrarnama which  had been executed by the adoptive fatherland  holding that  the Ikrarnama was valid and operative, said that  even apart  from the law, the adopted son, would be so  entitled. It is difficult to see how this can be of any assistance  in solving our present problem. (1)  (1916) 20 C.W.N. 901.  991    Lastly, the learned Counsel relied on the decision of the Privy  Council  in  Malraju Lakhmi  Venkayyamma  v.  Ventaka Narasimha Appa Rao (1).  The main question in controversy in that  case  was whether there was a  completed  contract  by which the Rani, the former owner of the property had  agreed that  the possession of the property would be given  to  her niece  Venkayyamma  Rao immediately upon the expiry  of  her life  interest.  The Privy Council held that there was  such completed  contract  and directed the  Receiver  to  deliver possession "upon the terms of the contract now affirmed".   It  may  be mentioned that this  decision  in  Venkayyamma Rao’s  Case  (1),  was among the authorities  on  which  the Calcutta  High  Court relied in Ariff v.  Jadunath  Majumdar (2).   The  High  Court held that the  result  of  equitable principles  which had been applied in many cases in  England and  were also applied by the Privy Council  in  Venkayyamma Rao’ Case was that the defendant had acquired the rights  of a  permanent  tenant.  When this very case went  up  to  the Privy  Council in appeal (1), the High Court’s decision  was reversed.   The Privy Council pointed out that the dicta  in Venkayyamma  Rao’s  Case  did  not  mean  "that  equity  can override   the  provisions  of  a  statute  and  (where   no registered  document exists and no registrable document  can be procured) confer upon a person a right which the  statute enacts, shall be conferred only by a registered instrument".    This  decision of the Privy Council in Ariff v.  Jadunath Majumdar  (2), was given in January 1931.  Nearly two  years before  that  s.  53A had been enacted in  the  Transfer  of Property  Act introducing in a limited form the doctrine  of equity  of part performance.  There can, in our opinion,  be no  doubt  that after s. 53A was enacted the  only  case  in which  the  English doctrine of equity of  part  performance could (1)  (1916) L. R. 43 I.A. 138.

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(2)  (1930) 1. L.R. 58 Cal.  1235. (3)  (1931) L. R. 58 1. A. 91. 992 be  applied  in India is where the requirements of  53A  are satisfied.   Quite  clearly, s. 53A does not  apply  to  the facts  of the present case.  It must therefore be held  that the considerations of equity cannot confer on Nagayya or his heirs  any title in the lands which under the statute  could be conferred only by a registered instrument. Our conclusion therefore is that the High Court was right in holding  that Nagayya or his heirs had acquired no right  in the property.  The appeal is accordingly dismissed.  In  the circumstances of the case, we make no order as to costs. Appeal dismissed.