Decided on February 05,1953

Ananthoth Gopalan Appellant
Eram Veettil Kanaran And Anr. Respondents


Balakrishna Ayyar, J. - (1.) THE jenmam right in the suit properties belongs to defendant 2. In May 1943 he put defendant 1 in possession of the properties under an oral lease. The lease was apparently for a period of one year. On 30 -6 -1944, defendant 2 executed a kanom kuzhikanam in favour of deft. 1. See Ex. D. 1. The document refers to the oral demise of 9 -5 -1943, admits receipt of the kanom amount of Re. 1 and demise fee of Rs. 125 and proceeds to confer kanom kuzhikanom right for a period of 12 years. But this document was not registered. On 24 -7 -1944, defendant 2 executed a registered kanom kuzhikanom deed in favour of the plaintiff (Ex. P. 1). On the strength of Ex. P. 1 the plaintiff sued to recover possession of the suit property. The District Munsif of Nada -puram dismissed the suit. His appeal to the Subordinate Judge of Tellicherry having failed, he has come up to this Court.
(2.) ONE of the defences, which defendant 1 set up, was that he is entitled to the protection conferred by Section 53 -A, T. P. Act. This plea was accepted by the learned Subordinate Judge. Mr. Nambiar, the learned counsel for the appellants argued that the learned Subordinate Judge was wrong in having done so. He raised in the main two points. One was that before defendant 1 can be given the protection conferred by Section 53A, T. P. Act, it must be shown that the plaintiff had notice of the contract in favour of defendant 1. Dealing with the finding of the Courts below that the plaintiff had such notice, Mr. Nambiar stated that the finding was based upon a misapprehension of the evidence. The evidence of defendant 1 was that some time after Ex. D. 1 had been executed he was travelling in a bus with the plaintiff and the plaintiff's father and that during the course of the journey, he informed the plaintiff about the execution of Ex. D. 1 and also about the payment of money. This is what he stated in chief: "Two months before the auction of the shops the plaintiff's father Chathukutty, the plaintiff and I went together by bus to Eadagara. We were going to see some shop renters to arrive at an agreement to prevent high bids due to competition. When we went on that occasion, Ex. D. 1 had already been signed. Plaintiff asked me whether I had taken a written lease. I told him that money had been paid and documents executed but not registered." But in cross -examination he deposed: "I do not remember the date on which Chathukutty, the plaintiff and I went to Muttangal to try to see that there was no competition in bidding......... On our way to Muttangal I spoke to them about my having taken a lease of the plaint property. I cannot say whether any one else heard it. He knew only of my having taken an oral entrustment of the property and not a written lease." Mr. Nambiar laid emphasis on this last sentence appearing in this series of answers and argued that assuming the story of defendant 1 that he had a conversation with the plaintiff and his father during the course of their journey by bus to Badagara or Muttangal is true, what he told them must have been about the oral lease of 1943 and not about Ex. D. 1. I am inclined to think that this series of answers in cross -exa -mination are the result of a certain amount of confusion either in the mind of the cross -examining counsel or in the mind of the witnesses or of both) because immediately afterwards the witness stated: "When Chathukutty came to my shop I had told him' about my having taken an oral lease. That was three or four months before, we went to Muttangal." Apparently there were two distinct talks and there was some confusion about them. This, however, is not a matter which I need pursue further because the question whether the story of defendant 1 that he told the plaintiff and his father about Ex. D. 1 is true is a plain question of fact and on this point both the Courts have found the evidence to be acceptable. In second appeal, I cannot go behind it. Mr. Nambiar next argued that even assuming this evidence is true, the talk was necessarily of a casual nature; so casual in fact that nobody need have taken notice of it. According to him, a casual talk is not sufficient to constitute the sort of notice that Section 53A, T. P. Act requires. In support of this argument of his, he referred to the decision - -'Re Tichener',, (1865) 55 ER 918 (A). I do not read that decision as laying down a general rule that in no case will information given in the course of what he called a casual conversation be sufficient to constitute notice. Of course, the informality attending a conversation may be Such that no man of ordinary prudence would take any notice of it. If the information had been made available in such circumstances, it may be legitimate to say "I heard it so casually that I took no notice of it." But that cannot be said in this case. It is true the conversation was informal but the information given was such, that anybody in the position of the plaintiff was bound to have remembered it. The proviso to Section 53A, T. P. Act is intended to protect persons who in actual truth and fact have no notice of the interests of the defendants; but when actually and as a matter of fact they have such notice, the informality of the manner in which they acquired that notice or information does not appear to be material. The main thing is that the transferee should know; it does not matter how he knows it. So long as it is credible information, which a person of ordinary prudence will take notice of, he wiE be bound by it.
(3.) THE second contention of Mr. Nambiar was that the payment of Rs. 125 which Ex. D. 1 recites, is not sufficient part performance within the meaning of Section 53A, T, P. Act. Para. 2 of Section 53A requires that the transferee should have done some act in furtherance of the contract. Mere payment of money, he said, would not be an act in furtherance of the contract. In support of his argument he referred to the decision in - - 'Maddison v. Alderson',, (1883) 8 AC 467 (B). At pp. 478 and 479 the following passage occurs: "And it may be taken as now settled that part payment of purchase money is not enough; and judges of high authority have said the same even of payment in full." The reason for the rule was explained immediately afterwards: "The best explanation of it seems to be that the payment of money is an equivocal act not (in itself) until the connection is established by parol testimony, indicative of a contract concerning land............ All the authorities show that the acts relied upon as part performance must be unequivocally and in their own nature referable to some such agreement as that alleged.";

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