035 - Nature of Right Under Section 53A of The Transfer of Property Act 1882 (608-616)
035 - Nature of Right Under Section 53A of The Transfer of Property Act 1882 (608-616)
035 - Nature of Right Under Section 53A of The Transfer of Property Act 1882 (608-616)
When all the above conditions are satisfied, the transferee can claim
the protection afforded by section 53A. But what, in fact, is this protec-
tion? The law on this point is in a state of flux. Various High Courts in
India have taken conflicting positions. It is, therefore, proposed here to
investigate the true nature and scope of the protection afforded to a
transferee by section 53A, a question that has been burning almost since
inception, producing considerable heat but little light. Before any attempt
at interpretation, it would be profitable to set out the relevant portion of
section 53A. It runs as under:
The concluding para enacts the rule that this protection shall not be
signed by the transferor in which all terms of the original contract have been brought
out, such writing can certainly be used for purposes of s. 53A.
5. In Akram Mea v. SecunderabadMunicipal Corporation, A.I.R. 1957 A.P. 859,
where the contract was in violation of the provisions of the Cantonments Act, 1924, it
was held that s. 53A shall not apply.
6. In Achayyaw.VenkataSubba Rao, A.LR. 1957 A.P. 854, it was held that
possession need not continue till the time when legal proceedings commence in a court
of law.
10. Even the Supreme Court in Delhi Motor Co. v. U.A. Basrurkar, A.I.R. 1968
I.C. 794, has approved this view.
11. Ibid.
12. Id. at 799. In this case the plaintiff, according to the Supreme Court, was
laking use of s. 53A as a weapon of attack.
13. A.I.R. 1939 All. 611.
14. Id. at 613.
17. M a t 2 1 9 .
18. Supra note 8.
19. Supra note 6. See also Akram Mea v. Secunderabad Municipal Corporation,
Dra note 5 and Chaitan Das v. Murali Dalai, A.I.R. 1971 Orissa 41.
20. For example, dispossession by the transferor himself, compensation on
mpulsory acquisition by the government, etc.
21. Supra note 6 at 858.
With due respect it is submitted that the learned judge has failed to
appreciate properly both the decisions referred to in the above extract. The
Privy Council in Probodh Kumar Das v. Dantmara Tea Co. nowhere
specifically held that for the availability of section 53A the transferee
should be arrayed in a court of law as a defendant. It has been already
pointed out that the Privy Council merely decided that section 53A would
or would not include cases where the transferee is arrayed in a court of
law as a plaintiff. As regards the Supreme Court decision in Delhi Motor
Co. v. U.A. Basrurkar2^ it has been already pointed out that it has expressly
left this question open.
It may not, therefore, be too much to say that the learned judge has
drawn a broader ratio than what the Privy Council or the Supreme Court
intended to lay down in the cases referred to above. Even the learned
judge himself does not appear to stick to the broad proposition laid down
by him in the above quotation. For, at another place after adverting to
the decision of the Oudh Chief Court in Ewaz Ali v. Firdous Jehan (already
referred above) with facts, he observed : 26
We may note that in this case the plaintiff was, for all practical
purposes defending her possession against the transferee who
was claiming under the transferor. The law debarred the
purchaser from enforcing any right against her and all that
she wanted to achieve by the Court's help was to see that the
estoppel against the purchaser from the transferor created by
Sec. 53-A was enforced against him. She was not complain-
ing against any infringement of a right in property vested in
her.