Wort, J.This is an appeal by defendants 5 and 6 and arises out of an action on a mortgage dated 20th January 1922, the consideration for which was Rupees 1,30,000. No question arises as between the mortgagor and the mortgagee, the only matter in dispute being the interest of the two appellants who are said to be entitled to the sub-soil rights of two of the villages, which are the subject-matter of the bond, free of the encumbrance. The plaintiff sued as the assignee of the mortgage from defendant 17 who is the mortgagee, and who was a minor but had attained his majority at the time of the assignment to the plaintiff which was dated 23rd December 1932. Defendant 1 is the mortgagor. Defendant 17 granted the mortgage in suit acting through his mother, who was his guardian appointed by the District Judge of Burdwan by an order dated 23rd February 1920, about two years before the mortgage. Defendants 5 and 6 were the appellants and were joined in the suit as they claimed the interest which I have already stated.

2. It is important to notice the facts relating to the mortgagee as a great deal of the argument depends upon his position with regard to the mortgage bond and another transaction to which I shall in a moment refer. One Gadadhar was the grandfather of defendant 17, Dharanidhar Rai. Gadadhar was married twice. By his first wife he had two sons Jugal and Pramatha. Pramatha is the father of defendant 17, the mortgagee. By his second wife he had three sons, who for convenience will be referred to as the stepbrothers and from whom at all material times Jugal and Pramatha were separated. The case of both the appellants is that their interest in the sub-soil of the two villages is not affected by the mortgage.

3. The interest of defendant 5 arises as follows:

On 21st of Magh 1930, i.e. in the year 1923, the mortgagor executed a jot bemeadi ijara patta of mouza Mahuda in favour of defendant 5. One Raghupati Chatterji of Purulia on 8th August 1926 transferred to defendant 5 the right, title and interest of defendant 1 in mauza Mahuda excepting what had already been settled with defendant 5 under the ijara patta, and which had been purchased by him in a court sale on 16th June 1925 in execution of a decree obtained against defendant 1. Again on 3rd September 1927 one Shiba Prasad Chatterji also conveyed to defendant 5 the right, title and interest of defendant 1 in the same village subject to the rights of Raghupati Chatterjis purchase which I have mentioned and which he (Shiva Prasad Chatterji) had purchased in a court sale on 16th July 1923 in execution of a decree against defendant 1. It is the transaction of 12th August 1927 upon which in this case the rights of defendant 5 depend. On that date defendant 5 claims that the mortgagee defendant 17, acting through his guardian, granted him a deed of release of the sub-soil rights of village Mahuda. By this deed, it is claimed; that the sub-soil rights in this village were-excluded from the operation of the mortgage. Although not recited in the deed, it is stated in evidence that the consideration for this deed of release was a sum of Rs. 5000 and the position of defendant 5, if this transaction is established, would be that having obtained by the transactions, to which I have referred, the equity of redemption of the sub-soil rights in a portion of the village, he redeemed the mortgage to the extent of the sub-soil rights of village Mahuda by obtaining the deed of release in question.

4. Defendant 6 claims to have a lease of the sub-soil rights from defendant 1, the mortgagor of village Telmocho under a contract of 26th August 1923. Telmocho was about 805 acres in area. On 21st June 1922 defendant 1 granted a lease of 500 bighas of the sub-soil rights to defendant 3. On 18th December 1925 defendant 3 granted a sub-lease of 50 bighas to defendant 6. On 12th August 1927, was a further lease by defendant 3 to defendant 6 of 25 bighas. On 31st August 1927 defendant 3 transferred to defendant 6 a right to receive royalty with regard to 100 bighas of the 500 bighas; in this 100 bighas was included the 50 bighas granted under sub-lease of 18th December 1925.

5. Under these various transactions, defendant 6 was in possession of 125 bighas of the sub-soil. Then on 26th August 1923 came the transaction to which I have referred, a contract by defendant 1 to transfer to defendant 6 sub-soil rights in respect of 450 bighas of village Telmocho. It is the contention of defendant 6 in this, appeal that under clause 19 of the mortgage the sub-soil rights in village Telmocho were reserved to the mortgagor restricting the mortgagor to make the grant which is in question.

6. As regards the case of defendant 5 the deed of release was executed by the guardian without the necessary consent of the District Judge under the Guardians and Wards Act. This fact is not disputed and therefore it became necessary for this defendant to contend that whereas the mortgage and the release purported to be the transactions of the minor; they were in. fact the benami transactions of Jugal and Pramatha respectively uncle and father of defendant 17 a fact of which he became aware (so he states) in 1930. If this case has been established, the consent of the Judge for the transaction was unnecessary. Alternatively the case was that if the transaction was in fact, what it appeared to be, that of the minor it was entered into by the guardian and was for the benefit of the minors estate and therefore binding. The Judge in the Court below has held that the mortgage was not a benami transaction; that the minor was in possession of separate estate and was in a position to advance the loan secured by the mortgage; that the deed of release was a fictitious transaction for which there was no consideration; and that the mother, as guardian, was unaware of the nature of the deed of release as it had not been explained to her.

7. As regards defendant 6, the learned Judge has held that such interest as defendant 6 possessed in village Telmocho was subject to the mortgage. In order to show that the deed of release was a transaction of the father and uncle and not that of the minor with regard to his separate estate, it has been the endeavour of defendant 5 to establish the fact that the minor had no separate property and that the money, the consideration for the mortgage, was in fact advanced by Jugal and Pramatha. Quite apart from other considerations the appellants are in some difficulty with regard to this as the evidence is clear that, of the Rs. 1,30,000, Rs. 93,000 odd was paid by the minor and the balance paid by Pramatha, the evidence of the advance by Pramatha of this limited amount being quite inconsistent with the appellants case.

8. I propose to mention a point there for the purpose of disposing of it at once. It was the contention of the appellants that the school of law governing this family was the Mitakshara and not the Dayabhaga contrary to the decision of the Sub-ordinate Judge in this regard. This question had no direct bearing on the point at issue, but the appellants appear to think that their case was in some way strengthened if they could establish this point. It has been rightly pointed out by the Judge in the Court below that if the family were governed by the Mitakshara School, there was nothing inconsistent with the holding that the minor had separate property.

9. The facts relied upon by the appellants in support of their contention are, first, that the family were Chatris, as the High Court found in a judgment in a case to which certain members of the family were parties reported in Nagendra Nath Roy and Others Vs. Jugal Kishore Roy and Others, ; secondly, that the family had been settled in Bengal for about five or six generations and, thirdly, the statements purporting to have been made in certain petitions by the mother of the minor that the family was governed by the Mitakshara.

10. As regards the familys settlement in Bengal, the most that was said by the witness was that they had been there for five or six generations but their original home was unknown. It is argued that the fact that they had migrated to Bengal raises the presumption in law that they were governed by the school of law from that part of the country from which they came. The Judge discredits the statement of the mother as he appears to be of the opinion that the statement was in all probability placed in the petition by the lawyer acting on behalf of the minor and that he was not bound by that statement. Whether this assumption by the Judge in the Court below was correct may be open to doubt, but in the state of the evidence it is impossible to hold that the family are governed by the Mitakshara School. Had the evidence as regards their migration to Bengal been clear, the presumption upon which the appellants rely would certainly have been stronger. But the mere fact that the family history can be traced back in Ben. gal for five or six generations does not necessarily raise the presumption that they migrated to Bengal. Ordinarily speaking, a Hindu family in Bengal would be governed by the Dayabhaga School and it seems to me to have been necessary for the party who contended otherwise to have called witnesses best able to establish the fact upon which they relied : I am referring to Jugal and Pramatha, neither of whom was called in this case.

11. Appellant 5 relies upon the weakness of the evidence of the mother as to the nucleus of the minors property to establish his contention that the money was the money of Jugal and Pramatha or the money of the joint family of which the minor was a member.

12. In this connexion reliance is placed upon the decision in Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 M.I.A. 53. He contends on the authority of this case that as the transaction was in the name of the son, the presumption is that it was the transaction of the joint family. But that begs the very question which we have to consider whose money was it that was advanced to the mortgagor In the case relied upon there was no serious dispute that the money was that of a person other than the minor. The evidence which is attacked in this case is that of Mt. Sarupini Debi, the mother who in her evidence-in-chief taken on commission, said that Rs. 1,30,000 was advanced by her son the minor; the nucleus of her sons separate estate was obtained at the Ekusa ceremony of her son when presents were given by a number of guests amounting approximately to Rs. 5000. It is quite evident from her deposition that she was somewhat vague as to the exact amount, but as will be seen on reference to the other evidence in the case to which I shall refer later, it is impossible to conclude that this boy has no separate estate in spite of somewhat vague evidence of the mother.

13. The minor, acting through his mother, purchased in execution of a decree Sitanala Colliery for a sum of Rs. 3315; this was in an execution case of 1918. This property was a mining lease in the name of Pramatha Nath Roy who had taken it from the Raja of Pachet in 1908. A decree for royalties was obtained in a suit of 1913. About the time of the purchase a dispute was going on between the step-brothers and Pramatha as to their rights in this property and it is suggested that this purchase was for the purpose of depriving the step-brothers of their rights. This transaction was not carried through by the mother but by another guardian, the mother being appointed at a later date, i.e. on 23rd February 1920. It is not a very strong piece of evidence but the necessity for the appointment of a guardian is some indication that the minor had separate estate. On 23rd March 1920 an application was made by Mt. Sarupini Debi to sell this property which had been purchased for Rs. 3315. It is almost unbelievable, but the fact is that an offer had been obtained for the purchase of this colliery for Rs. 3,50,000. As the step-brothers had been claiming rights to this property, the purchasers, in addition to the purchase price already mentioned, paid a sum of Rs. 1,25,000 to the step-brothers and obtained sale deed from them.

14. The facts as to the price paid and the offer of purchase are stated in the order of the learned Judge made on the date which I have given. On 31st of the same month permission was granted to sell the property, as prayed for, and the guardian was ordered to file an account of the trans, action within thirty days. It will be seen therefore that by this one transaction a estate of upwards of Rs. 3,00,000 was obtained. The order requesting Mt. Sarupini Debi to file an account was complied with on 13th December 1920. There, she set out items showing a disbursement of part of the Rs. 3,50,000 obtained from the sale of the Sitanala colliery. A large number of properties had been purchased and other expenses incurred which left a balance of Rs. 93,834-11-0. Of this balance Rs. 93,000 was advanced on the mortgage in suit and Rs. 37,000 was obtained from Jugal. There is no doubt, as I have already stated, with regard to this evidence; and as I have already pointed out, the statement that Jugal advanced Rs. 37,000 of the total consideration of Rs. 1,30,000 is clearly inconsistent with the case now set up by the appellants that it was from Jugal or Pramatha or both of them acting on behalf of the family, that the whole of Rs. 1,30,000 was obtained. That is the position with regard to the mortgage and the manner in which the money was obtained. If the transaction was a transaction with respect of the minors separate estate, then it would necessarily follow that, if the release were a genuine transaction, it was also a transaction of the minor and not, as the appellants allege, the transaction of the joint family.

15. It is with regard to this deed of release that we are mainly concerned in the appeal of appellant 5. The deed of release, dated 25th June 1926, is by Jugal as ammukhtar of Mt. Sarupini Debi, the guardian of the minor. There is no dispute as regards the fact of the ladys signature, but there is a controversy as to whether the lady executed the deed understanding the transaction.

16. The appellants would urge, contrary, to the decision of the learned Judge in the Court below, that the consideration of Rs. 5000 was in fact paid and in the following circumstances. Certain colliery properties of Jugal and Pramatha were being sold in execution case No. 587 of 1924 in the Court of the Subordinate Judge of Dhanbad; claim case was made by Dharanidhar (the minor) and other sons of Pramatha Nath Roy; the claim was dismissed and the decree-holder purchased the property for Rs. 13,000; there was an application to deposit the decretal amount which was however not done and the sale was confirmed.

17. A further application was made under Order 21, Rule 90, Civil P.C., and a suit was started, but in the meantime a compromise had been entered into by which the decree-holder agreed to accept the sum of Rs. 13,635. There were certain negotiations, according to the evidence, to borrow Rs. 15,000 from defendant 5. It was ultimately agreed that he should lend them a sum of Rs. 8000, on promissory notes of Rs. 4000 each and should pay Rs. 5000 in cash to the mortgagee, for the deed of release in question. The learned Judge has, as I have said, held that this sum was not paid. We are not so much concerned with the other items making up the Rs. 13,000. The hand notes were not produced although defendant 5 says that the notes were substituted by a mortgage. The mortgage incidentally was executed by Jugal alone on 10th September 1927 for Rs. 17,000 which was said to include further advances. The promissory notes to which I have referred are said to have been executed by Jugal alone. Of the Rs. 13,000, it is stated that a cheque was given by defendant 5 of Rs. 7,000 and the balance of Rs. 6500 was paid in cash to Ramesh Babu the pleader of the decree-holder. There is nothing in this transaction in any way to connect the other brother Pramatha with it excepting the fact that there was some correspondence between Pramatha and the pleader with regard to obtaining the consent of the District Judge to the transaction being apparently the transaction of the minor. But, as regards the actual consideration, there appears to be the gravest possible doubt. In the first instance no mention is made of the Rupees 5000 in the deed itself nor is there any evidence that the sum was paid over to the minor excepting a statement that the receipt was signed by Jugal as ammukhtar of the mother guardian of the minor, from which it is argued an inference is to be drawn that the sum was in fact paid.

18. The circumstances attending the execution of the deed are, according to the evidence, as follows. The money had to be deposited on 26th June 1926 and negotiations started in the first instance at Nayagarh the house of defendant 5, where Jugal and Pramatha asked for the advance of Rs. 15,000. On 24th June 1926, the appellants with Jugal and one Bisesar Chakravarty went to Purulia where a draft deed of release on the instruction of Jugal was made; stamped paper was purchased and the deed was fair-copied by Raghupati. Mt. Sarupini Debi, the mother of the minor, was supposed to be in the adjoining room, and the evidence of defendant 5 is that before the document was written out the draft was read over to the lady. She accepted it and ordered the document to be fair-copied, and then it was signed by her. This is entirely contrary to the ladys evidence. She claims that she put her signatures on blank pieces of paper.

19. As I stated in the early part of my observations, this would seem to be supported by the document itself and the signature thereon. The evidence, it will be seen, is that the document was read over to the lady. There is no evidence that it was ever explained, indeed the evidence of defendant 5 himself is that the lady could well understand the contents as they were in Bengali, a language which she knew and therefore there was presumably no need of explanation. But she denied in her evidence any knowledge of the document but no question was put to her in cross-examination as to her knowledge of its contents or as to having them explained to her. The evidence of Bhola Nath Mukharji is very explicit and has been accepted as truthful by the Judge in the Court below. His statement is that the document was taken by him to Beluri, stamped paper had been handed over to him at Purulia from which place he went to Beluri and obtained there the signature of Sarupini Debi, the papers being blank at the time. Having regard to the view the learned Judge takes of the evidence of the witnesses before him and the fact (which in my judgment is most important in this case) that no consideration is named in the deed of release itself, it seems impossible to come to any other conclusion than that at which the learned Judge has arrived, and, that is, that Rupees 5000 was never paid, and even if it must be held that the sum was paid, there is no evidence that it was ever received by the minor.

20. In this connection it is important to note that in the petition of the lady, as guardian of the minor, to the District Judge for authority for the release, although the prospect of litigation is stated to be the ground for releasing Mahuda, no mention is made of the alleged consideration of Rs. 5000. The petition is dated 17th January 1927, six months after the date on which the deed of release was executed. In the affidavit in support of the petition, but which was made nearly three months later, the amount of Rs. 5000 does appear. This, the Judge has characterized as an after-thought.

21. It is true that the case of the appellants is that it was not the minors transaction, but the circumstances upon which the learned Judge has relied are of the greatest possible importance. It appears that defendant 5 did not know that this was a transaction of the joint family until the year 1930, and the fact to which I refer is that defendant 5 thought (as indeed all persons connected with the transaction at the time thought) that it was necessary to obtain the sanction of the District Judge. For that purpose reliance is placed upon certain correspondence with a mukhtar named Muhammad Yasin. Pramatha Nath Roy pleader wrote to him on 27th June 1926 instructing him to obtain the sanction of the Judge to the deed of release. Muhammad Yasin replied on the 28th to the effect that the application was refused and we know that for whatever reason the application was not persisted in, no sanction of the Judge was obtained.

22. Now, it is not disputed in this case that, if it can be shown that the transaction of the mortgage was that of the minor through his guardian, it would be necessary to have obtained the deed of release in question from the minor, assuming for the moment that it was not a fictitious transaction. The learned Judge, I should have stated, has held that the deed was obtained by a conspiracy between defendant 5 and Jugal. The importance of the point that the consideration is not named in the deed is stated by the learned Judge in his judgment. The suggestion that litigation existed or was possible as the reason for or the consideration for the deed of release is not accepted and it is the view of the learned Judge, which is supported by the fact of the consideration not being mentioned, that this was an after-thought for the purpose of introducing it into the affidavit to be filed before the District Judge on the application for sanction which was sworn, as I have already stated, nearly three months after the petition which made no mention of the consideration of Rs. 5000. The sum advanced by defendant 5 to Jugal and Pramatha was Rs. 13,000, but in a previous statement made in 1930 he had said that Rs. 15,000 had been advanced to these persons to save their property. The witness is also somewhat contradictory with regard to the statement in the deed as to the possibility of litigation between him and the minor.

23. I revert to the question whether the mortgage was the transaction of the minor with regard to his own separate estate. One of the matters relied upon more particularly are statements made during the partition action between Pramatha and Jugal on the one hand and the step-brothers on the other in the suit of 1919, This suit was ultimately referred to the arbitration of the Raja of Pachet and a decree was made on that award on 26th January 1923. The step-brothers being the plaintiffs there, were claiming three-fifths of the properties which were the subject-matter of that suit. The plaintiffs there admitted the settlement of the sub-soil portion with Sashti Kinkar Bandopadhaya and a purchase from him by Dharanidhar (the minor) of certain lands in Lachipur in Simabad: it is stated that they had withdrawn their claim to the Sitanala colliery.

24. In para. 7 of the decree it is recited: "That the immovable properties mentioned below" will be divided as between Jugal and Pramatha on the one hand and the step-brothers on the other in certain proportions. With regard to property No. 14 it is stated:

Excepting (the portion) purchased under sale deed by Dharanidhar Rai...within mauza Sitarampur, district Burdwan.

25. Again in the schedule, Dharanidhar is admitted to have purchased certain lands within mauza Beluri, the plaintiffs and the defendants having no rights thereto. There are further admissions as regards the property in the district of Bankura, particularly sub-soil rights of Bowdigari. This amounts to a clear admission by persons interested--an admission against their own interests by persons who had been claiming a share in all the properties, the subject-matter of the suit including the ones mentioned, that the minor Dharanidhar Rai was exclusively interested in those particularly mentioned. It is true that the mortgage in suit was dated 20th January 1922; but these admissions were made at the time or shortly after the mortgage, the decree being in 1923. The admissions do, if accepted, entirely establish that the minor was in possession of very considerable separate property. Again, it is true that the question is whether the story set up by the mother of the nucleus is to be believed. But the admissions to which I have refer, red are consistent with the story that the nucleus existing allowed the minor to, purchase Sitanala colliery and realize the very substantial amount to which I have referred. The appellants rely upon apparent inconsistencies of the mothers evidence.

26. In her cross-examination she stated, being questioned as to the existence of the nucleus that the minor had other properties having, for instance, Monjuri Lat. It is pointed out that this was one of the properties purchased by the mother on the minors behalf with the proceeds of sale of Sitanala, and this statement could not therefore be relied upon to show that the minor had separate estate. But, the statement in no way detracts from the mothers evidence. She was being questioned as to the existence of the nucleus but the matter in hand was whether the minor had money from which he could advance the mortgage monies, and to that her statement appears to be directed, and not the existence of a separate estate at the time when the nucleus came into existence. Some comment was made as regards the absence of the familys books, it being contended that, had they been produced, evidence would have been forthcoming to show that the transaction was that of the joint family.

27. This is an argument which cannot be accepted. The plaintiff is just as much a stranger to the family as defendant 5. It was equally open to the defendant, if he thought that the books would support his case, to ask for their inspection and production which he bailed to do.

28. On the face of it, the mortgage transaction was that of the minor and in the state of the evidence I am of the opinion that the appellant has not shown that the apparent transaction is not the real one. More particularly with regard to the transaction with which we are primarily concerned, the circumstances point to the fact that the guardian was in ignorance of its existence and certainly its nature. Nor does the case made by the appellant defendant 5 clearly show the transaction to be a genuine one. The existence of the receipt for the Rs. 5000 is in fact relied on by the appellant not to establish such a payment, much less a payment to the minor. The existence of the receipt in the circumstances was so unnecessary as to give rise to the doubts which existed in the mind of the Judge in the Court below. Having regard to the view I take of the mortgage, I come unhesitatingly to the conclusion that the release if obtained should have been obtained from the minor and that has not been established in the case, first because it has been established that the guardians were unaware of the transaction, and secondly there are the gravest doubts whether Rs. 5000 was ever paid, nor can it be said that the transaction if not entirely unreal, was for the benefit of the minors estate with regard to which there was no evidence.

29. The questions of law which have been argued strictly do not arise having regard to my decision as to the circumstances under which the deed of release was executed. On the footing that the transaction was a transaction of the minor, it was con. tended by the appellant (defendant 5) that the deed of release was not a transfer by sale, gift, exchange or otherwise within the meaning of Section 29, Guardians and Wards Act and therefore it was unnecessary to obtain the sanction of the District Judge. Section 30 provides that a transfer of property in contravention of Sections 28 and 29 is voidable at the instance of any person affected thereby. As the release was not a transfer within the meaning of Section 29, it was further argued that the plaintiff, although affected by the deed of release, was not entitled u/s 30 to have it set aside. The respondents contend on the other hand that the transaction was a transaction under Sections 28 and 29; that it was voidable u/s 30 by reason of consent not having been obtained from the District Judge; and that in any event if the plaintiff cannot avoid the transaction, it is avoided sufficiently by reason of the defence set up by the mortgagee in which he repudiates the document.

30. Reliance was placed for this view on the decision of Sir Lawrence Jenkins in Hem Chandra v. Lalit Mohan (1912) 16 C.W.N. 715 in which the learned Judges relied upon Eastern Mortgage and Agency Co. Ltd. v. Rebati Kumar Ray (1906) 3 C.L.J. 260. In my opinion the words used in Section 29, Guardians and Wards Act are sufficient to cover the transaction in question. In effect whatever might be the description given of the deed, it was a transfer of the equity of redemption to defendant 5 who had obtained certain leases of the underground rights in the village.

31. As regards limitation, in my judgment Article 44 of Limitation Act would apply. It has been held by the Judge in the Court below and not disputed that the minor attained his majority on 25th October 1931, and, whether the assignee (the plaintiff) as being the person affected by the transaction was entitled in his suit to have it set aside, or that such a right was limited to the minor himself, it must be held that the minor has avoided ft by his defence in this action. The persons interested in having the transaction set aside are well within time as the action was within three years of the date of the minors majority.

32. In support of this argument reliance was placed upon Fakirappa Limanna v. Lumanna Mahadu AIR 1920 Bom 1 As regards defendant 6, he is in possession of an unregistered agreement of lease, dated 26th August 1923. In the first place he relies upon Clause 19 of the mortgage which provides:

That I have not as yet settled the underground coal of the mauza called Ramnagar otherwise called Telmooho, which I have within my zamindary and included in my mortgaged property. I shall have the full right and power to settle the underground coal of the said mauza. I shall be competent to sell the same according to my sweet will. I shall remain bound to pay up the amount due to you with the amount of salami I shall get by making settlement of the underground coal land of the said mauza; otherwise it will be the cause of action for a suit.

33. He relies upon this for the contention that the sub-soil rights of Telmocho were excluded from the mortgage. In this case the clause which I have read confers on the mortgagor the power of management including the granting of leases, and if the agreement which defendant 6 sets up is a binding agreement, the mortgagee or any other person entitled to the possession of the estate will be entitled to possession subject to the lease granted to defendant 6.

34. The only question in the appeal is whether defendant 6 has got a valid lease. It is not disputed that the document in its present form is invalid as a lease. Sir Sultan Ahmed on behalf of the appellant relies upon Section 53-A, T.P. Act, an amendment of the principal Act by the Transfer of Property Act in 1929, for the contention that he can resist the plaintiffs claim as he is in a position to demand specific performance of the agreement. The whole question depends upon whether the appellant-(defendant 6) can take advantage of Section 53-A. That depends upon whether Section 53-A can apply to a case in which the agreement was made prior to April 1930 the date of the coming into force of the Transfer of Property Act, 1929. The main argument is based on Section 63 of Act 20 of 1929 which provides that nothing in certain sections there named shall be deemed in any way to affect certain matters set out in Sub-clauses (a), (b) and (c). Sub-clause (d) of Section 63 of the same Act provides inter alia:

Nothing in any other provision of the Act shali render invalid or in any way affect anything, already done before the 1st day of April 1930, in any proceeding pending in a Court on that day.

36. This is the substance of the section. It is agreed that there is nothing in the section which prohibits the retrospective operation of Section 53-A, as Section 53-A is not mentioned in Section 63 of Act 20 of 1929, nor does it come within that part of the last sub-clause which I have read. The argument is an argument which has been, accepted in some cases, that as certain provisions of the Act are stated specifically not to be retrospective and as the prohibition in the last Sub-clause (d) of Section 63 refers merely to a thing already done before 1st April 1930 and a proceeding in Court on that date, it necessarily follows that the other sections relating to matters other than those to which I have referred are retrospective. This argument, as I have stated, has been accepted in a number of cases.

37. In Sk. Mahammed Hushen Vs. Jamini Nath Bhattacharji, the learned Judge delivering the judgment of the Court stated that if the test laid down by Lord Watson in the Privy Council case in Young v. Adams (1898) A.C. 469 had applied, then it would have been clear that the section was not retrospective; but the learned Judge proceeds to add that Lord Watsons test is not the only test, but that the retrospective nature of the section may result from necessary inference, and reference was made to Colonial Sugar Refining Co. v. Irving (1905) A.C. 369. The fact that Section 63, T.P. Act provides that certain sections shall not have retrospective effect does not give rise to the necessary implication that the other sections have such an effect.

38. In John Gurney Wakefield Vs. Kumar Rani Sayeeda Khatoon, the learned Chief Justice and James, J., (James, J. delivering the principal judgment of the Court) have expressed their views with regard to the matter, holding that the section applied to the agreement of 4th August 1923 not otherwise enforceable. James, J. in expressing that view, but dealing with none of the cases nor the argument in detail, stated that in the form which the appeal had ultimately taken the question, strictly speaking, did not arise. Again the learned Chief Justice stated the following:

Although by reason of the course which the case has taken the question of the retrospective nature of Section 53-A, T.P. Act is no longer of importance in this particular case, I think it necessary by reason of the general importance to explain the reason for my concurrence with the view expressed.

39. Had the matter been otherwise and the point arisen in the case, it would have been necessary to refer the case to a Pull Bench of this Court having regard to the view that my learned brother and I take on this point. Having regard to the statement of the learned Chief Justice and James, J., I do not feel bound by their view of the law. The question is put beyond doubt by Section 3 of the Act of 1929, to which I shall in a moment refer. But, before dealing with that, I would like to reiterate, by reference to authorities, the principle which is applied in dealing with a question of this kind.

40. In Reid v. Reid (1886) 31 Ch. D. 402, Bowen L.J. made this observation:

We are dealing, it is true, with an Act which is in some sense and to some extent retrospective, and with a section that is to some degree retrospective. The section applies to and affects marriages contracted before the commencement of the Act.... Now the particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well-known trite maxim omnis nova constitutio futuris forman imponere debet non praeteritis that is, that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act, which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective than you can plainly see the Legislature meant.

41. In Young v. Adams (1898) A.C. 469, a case to which I have made a passing reference, the Judicial Committee of the Privy Council in considering this matter were dealing; with the words of a section which were to this effect:

Nothing in this Act or in the Civil Service Act of 1884 shall be construed or held to abrogate and restrict the right of the Crown as it existed before the passing of the said Civil Service Act, to dispense with the services of any person employed in the public service.

42. The position was this, that during the period between the original engagement and the dismissal of the person in question, the Act of 1884 was passed. He was dismissed five months before the Act of 1895 the relevant words in which I have quoted above. The argument was that the Crown could take advantage of the Act of 1895 as being retrospective.

43. In dealing with the point, Lord Watson said that the rule laid down by Eric C.J. in Midland Ry. V. Pye (1861) 10 C.B.179 ought to apply, and observed that:

They think that, in a case like the present, the learned Chief Justice was right in saying that the retrospective operation ought not to be given to. the statute, unless the intention of the Legislature that it should be so construed is expressed, in a plain and unambiguous language, because it manifestly shooks ones sense of justice that an. act legal at the time of doing it should be made unlawful by some new enactment. The ratio is equally apparent when a new enactment is said to convert an act wrongfully done at the time into a legal act and to deprive the person injured of the remedy which the law then gave him.

44. Again in Queen v. Guardians of Jpswich Union (1877) 2 Q.B.D. 269 Cockburn C.J. says:

It is a general rule that where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply to a state of facts that may have ceased to exist nearly thirty years back.

45. There is no express statement here that Section 53-A is retrospective. In Smith v. Henry Callander (1901) A.C. 297, a case in which compensation was given to tenants under the Market Gardeners Compensation (Scotland) Act, 1897, the same rules apply. It is true that in these cases, as in the other cases, to which I shall make reference, the words of a particular statute were being construed, but in each case there was no specific provision as to their retrospective character. With regard to the particular matter in question and in all cases the rule as to ambiguity was applied.

46. In referring to certain Scottish cases, Lord Hatherley in James Gardner v. Lucas (1877) 3 A.C. 582 referred to Lord Presidents judgment in which he cited the opinion of Lord Cranworth in Kerr v. Marquis of Ailsa 1 Macq. 736 to the following effect:

Unless there be something in the language, context or objects of an Act of Parliament showing a contrary intention, the duty and practice of Courts of Justice is to presume that the Legislature enacts prospectively and not retrospectively.

47. In AIR 1934 235 (Privy Council) , their Lord-ships of the Judicial Committee of the Privy Council referred to Section 53-A and said:

...whereby a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Their Lordships views, as expressed in the present case must therefore be understood to be referable to the state of the law before this partial importation into India of the English equitable doctrine of part performance.

48. The case referred to facts arising before the Act but from the Act their Lordships did not apply Section 53-A. Support is thus given to the decision of this Court in Ramakrishna Jha v. Jainandan Jha A.I.R.1935. Pat. 291. There is one matter, as I have said, which in my judgment puts the question beyond any dispute. Section 53-A was enacted by Act 21 of 1929, the Transfer of Property (Amendment) Act. By reason of a decision of the Calcutta High Court by which it was held that a document not registered could not be adduced in evidence to support a claim for specific performance and by reason also of the addition of Section 53-A to the Transfer of Property Act it became necessary to make an amendment by way of an addition to the Specific Belief Act of 1877. The amendment of the Specific Relief Act (now Section 27-A) made by Section 3, T.P. Act 1929, allows a person to sue for specific performance notwithstanding that a contract though required to be registered had not been registered, and in the circumstances that the lessee had taken possession of the property. The contract in this case is not a registered contract, and for that reason if Section 53-A is not retrospective, it cannot be relied upon. The last sub-clause of Section 27-A of the Specific Belief Act states that the section applies to contracts or leases executed after 1st April 1930. There can be no serious dispute in this case that the contract in question had it been registered, would have, been valid; its form is not in question. If the argument that the Act is retrospective is to be accepted, then this anomalous position arises under the Act. If defendant 6 when the Act of 1929 was passed giving him (according to the argument) right to specific performance had been alert and diligent and brought an action for specific performance of his contract, he would have been met with the sub-clause which clearly enacts that it applies only to leases or contracts made after 1st April 1930. If, however, he slept on his rights and did nothing and was sued in an action for ejectment, then if the argument be accepted that Section 53-A is retrospective, he would be entitled to what would be equivalent to specific performance-contradictory positions which could not clearly be intended by the Legislature. In my judgment there can be no doubt that Section 53-A is not retrospective and that defendant 6 is not entitled to enforce his rights under its provisions. There is no question here, indeed there can be none, that Section 53-A is merely a matter of procedure. It is a section which gives substantive rights to the parties coming within its provision.

49. There is a further argument which incidentally disposes of the matter and that is that the defendant could not in this section obtain specific performance against the plaintiff alone who is a mere assignee of the mortgage. He could if at all obtain specific performance against the person from whom he obtained his contract and he is defendant 1. There can be no right in the nature of counter-claim against a co-defendant, nor against a plaintiff in India. The further contention is that any claim for specific performance is barred by limitation. There is no evidence here of refusal and I doubt, had the position been otherwise with regard to Section 53-A, whether on this point defendant 6 would have failed. There is one other matter. The learned Judge in the Court below is quite clearly wrong in his order as regards defendant 6. It is agreed that the right, title and interest of this defendant as lessee will not be affected by plaintiffs mortgage decree in respect of 125 bighas of coal land in maiza Telmocho acquired under registered leases (Exs. A-3 dated 18th December 1925, A 1-3 dated 12th August 1927 and B-3 dated 31st August 1927) and which is not the subject-matter of the agreement or ekrarnama (Ex. W-3, dated 26th August 1923) relating to 450 bighas of coal land in mauza Telmocho. So far as these 450 bighas are concerned, the same would have to be said had the ekrarnama been a valid lease, but having regard to the decision at which I have arrived this is not so. With the agreed modification as regards the 125 bighas of defendant 6.

50. I would hold that the appeal fails and must be dismissed with costs.

Manohar Lall, J.

51. The first question which I propose to discuss in this case is whether the deed of release executed by Mt. Swarupini Devi, certificated guardian of the minor Dharanidhar Roy, defendant 17, in favour of defendant 5 is valid and binding upon the plaintiff. The facts necessary to determine this matter may be shortly stated. (While re-stating the facts his Lordship remarked as regards Guardians and Wards Act that it is the duty of the Legislature to intervene and make some drastic changes in this Act so that proper supervision and control may be exercised over the guardians in the real and effective interest of the minor and then proceeded.) It is urged by Sir Sultan Ahmad, appearing for the appellant that there was no necessity for any sanction of the District Judge because he proposes to show that the minor was simply a benamidar for the joint family and that the title in the property all along rested in the joint family of which Jugal Kishore was the karta and of which Dharanidhar and his brothers along with their uncle were the members. On the other hand, the case of the plaintiff is that Dharanidhar himself was the owner of this property and in any event he was put forward as the ostensible owner by everybody concerned and treated as such by the defendant 5 himself and therefore it was necessary to obtain the sanction of the District Judge. It was also seriously contended at the trial and before us on behalf of the plaintiff that the so-called deed of release was neither read over nor explained to the lady Swarupini Devi who is a pardanashin lady without any business-understanding and who did not know what she was doing and who obtained no independent advice in the matter of this transaction which was only for the benefit of Jugal and Pramatha and not for the benefit of the minor at all and therefore it was contended that the so called deed of release is not at all binding upon the minor. The plaintiffs, it should be stated here, are assignees of the rights of the minor in the mortgage bond by a deed bearing date 23rd December 1932 for valuable consideration from the minor who had attained majority in 1931. The learned Subordinate Judge upon a careful consideration of the oral evidence in the case has come to the conclusion "that the deed of release is a fraudulent and collusive document and not a genuine document." I agree with my learned brother that no sufficient reason has been shown to us why we should not accept this finding of the learned Subordinate Judge. The oral evidence of the lady which was given on commission and the nature of the questions put to her in cross-examination, the place where her signatures are affixed on the right-hand top-corners of the deed of release and the fact that her husband has never signed it are additional reasons which induce me to agree with the learned Subordinate Judge in holding that this document was never read over or explained to the lady. The evidence adduced by the plaintiff that the lady obtained any free or independent or any advice at all or that this document was read over to or explained to her is of the flimsiest kind and carries no conviction to my mind.

52. I now proceed to consider whether the minor was himself the full owner of the Sitanala Colliery, the sale proceeds of which were utilised in acquiring the rights under the mortgage of 1922. Sir Sultan Ahmad conceded that if it is found that the minor was in a position to advance the comparatively small sum of Rs. 3315 by which he purchased in auction sale the rights in the Sitanala Colliery he would be unable to seriously contend that the minor was not the owner of the rights in the mortgage bond. The evidence on this point is chiefly that of the lady who says in very clear terms that as Dharanidhar was the eldest male child in the family he received on the ekusha day a large number of customary presents in cash, in silver and gold coins, which were utilised by her for purchasing this property for the minor. The story is not improbable. The family of the Roys was a respectable and a well-to-do family at one time, they were connected with the Raja of Pachet and it is quite usual in many respectable Hindu families, even of smaller status than this family, that such customary presents which are received from time to time by or on behalf of the minor child are kept separately for his use by the mother, the other members of the family not exercising any right whatsoever in spending any money out of it.

53. In the partition decree which is printed at pp. 42 to 49 mention is made of several properties which were accepted by all the members of the family as belonging to the minor. I therefore have no hesitation in holding that the minor became the owner of the Sitanala Colliery in his own rights from 1918. The evidence is entirely one sided and has been accepted by the learned Judge,, The very fact that the learned District Judge of Burdwan was asked to appoint a certificated guardian of this minor and he dealt with this colliery as the property of the minor in his various orders from time to time from the year 1920 onwards is a strong indication of the fact that all the interested parties treated the minor as the sole owner of the Sitanala Colliery and other properties as mentioned in the schedule of the guardianship petition. Defendant 5 himself was aware of these guardianship proceedings and it is nowhere alleged on his behalf that the whole proceedings were sham from beginning to end. Indeed he himself before advancing the money for setting aside the sale in 1926 insisted that the sanction of the District Judge should be obtained for the deed of release of village Mahuda. The appellant cannot, under these circumstances, be allowed to turn round and say that the minor was not the owner of the Sitanala Colliery or of the mortgage bond executed in his favour by defendant 1. Upon this view of the matter, it is unnecessary to consider in detail whether the family of the Boys was governed by the Mitakshara or the Dayabhaga School of Hindu law or whether Dharanidhar was joint with his father and uncle. But I generally agree with the findings of the learned Subordinate Judge on these points also. If Pramatha and Jugal were joint with Dharanidhar the evidence discloses conclusively, as I have just shown, that the minor was the owner of the Sitanala Colliery and had advanced the money to defendant 1 who executed the mortgage in suit in his favour.

54. Sir Sultan Ahmad presents an alternative argument that even if Dharanidhar be accepted as the full owner of the property and as the real mortgagee, the plaintiff as a transferee from Dharanidhar has no right to avoid the deed of release which would be a voidable transfer being without the sanction of the District Judge, u/s 30, Guardians and Wards Act, he contends that the right to avoid was a mere personal right of the minor himself which he could exercise on his attaining majority and inasmuch as the minor has never sued to avoid this transfer, the transfer stands and cannot be impeached by the plaintiff.

55. I am not impressed by the argument of Mr. P.R. Das who appears for the respondents that the transaction which is styled as the deed of release is a void transaction and therefore need not be avoided. In my opinion it was necessary for the minor to avoid this transaction and that the deed of release could not be called a void transaction. Mr. P.R. Das argued that the consideration mentioned in the deed of release is no consideration at all and that this consideration did not exist at the time the deed was entered into. I think there is a complete fallacy in this argument. The deed mentioned a consideration which is a good consideration in law. The facts mentioned in the deed of release namely that Jagdamba Lalla, the owner of the sub-soil rights in village Mahuda, had acquired the equity of redemption by purchasing the rights of the two Chatterjis are admittedly correct. It is also correct that there would be some litigation between the minor and the mortgagee and Jagdamba Lalla the new purchaser, however slender the basis may have been for a controversy in a Court of law. It cannot be said therefore that the deed of release was for no consideration at all; inadequacy of consideration is different from a total lack of consideration. The highest that can be stated in favour of Mr. P.R. Dass argument is that this deed of release was brought about in order to defraud the minor. Even then the deed would be voidable and not void. The deed was registered either to release the interest of the minor in the property or to transfer the interest of the minor in this property to Jagdamba Lalla and the fact, that the consideration mentioned in the deed is neither adequate nor reasonable nor for the benefit of the minor, is no ground whatsoever for holding that the deed is void. In my opinion this deed, as stated above, was a voidable transaction and requires to be avoided or pet aside within the period of limitation and "by the person affected thereby".

57. The next question is whether the minor has avoided the deed of release. There is some confusion in the minds of the litigants that it is necessary for a minor either to institute a suit on coming of age to avoid the transaction entered into by his guardian on his behalf or that some other guardian or next friend of the minor must institute a suit to avoid the transaction which was entered into by another guardian. The minor can avoid the transaction in a variety of ways, for instance, by dealing with or transferring the very property which has been dealt with by the guardian on his behalf and which transaction he does not choose to ratify. In the present case, the minor admittedly within three years of attaining majority executed a deed of assignment in favour of the plaintiff by which he completely ignored the deed of release supposed to have been executed on his behalf by the certificated guardian without the sanction of the District Judge. The minor is a party defendant in this action and in the written statement he takes up the same position. He says definitely that he has no objection in regard to the obtaining of a decree by the plaintiff and in para. 4 of the written statement he definitely states that he alone had lent the money to defendant 1 and that defendant 1 executed the mortgage bond in the suit in his favour and that on 23rd December 1932 he by a registered kabala sold the amount due under the said deed and all rights and titles of the said deed to the plaintiffs and has ceased to have any right. He also asserts that at his request the other pro forma defendants also executed the said deed jointly with him so that there may be no difficulty in the way of the plaintiff in obtaining his relief. Trevellyan in his well-known book on Minors, Edn. 5, at p. 202 states:

A transaction which is voidable at the instance of the minor may be repudiated by any act or omission of the late minor, by which he intends to communicate the repudiation, or which has the effect of repudiating it, for instance, a transfer of land by him avoids a transfer of the same land made by his guardian before he attained the age of majority. It is not necessary that he should bring a suit; but a suit to set aside the acts of his guardian during his minority amounts of course to an express repudiation.

58. In Hem Chandra v. Lalit Mohan (1912) 16 C.W.N. 715 Jenkins C.J. in approving the decision in Eastern Mortgage and Agency Co. Ltd. v. Rebati Kumar Ray 1906 3 CLJ 260 observed that:

It is not necessary for a person in the position of the defendant to bring an action to set aside the transaction and it is sufficient if he declares his will to rescind by way of defence when an action is brought to enforce the mortgage against him.

59. The mortgage in that case was executed by the mother without the permission of the District Judge during the minority of the defendant. In Abdul Rahman v. Sukhdayal Singh (1906) 28 All. 30, Banerji and Richards JJ. took the same view and pointed out that a lease granted without obtaining sanction from the District Judge was not illegal or ab initio void and the omission to obtain sanction from the Court relegated the parties to the position in which they would be if no certificate of guardianship had been granted, in other words, they held that it would not be necessary to set aside such a transfer made by the guardian. They also pointed out that the minor had validly repudiated the transfer entered into by his guardian because he sold the very property which his guardian had leased out to the contending party. Richards, J. observed that it was not necessary that a suit should be instituted to set aside the lease which was executed by the guardian of the minor.

60. The case in Muthukumara Chetty v. Anthony Udayan AIR 1915 Mad 296 is also an authority for the proposition that a party who is entitled to avoid may do so by an unequivocal act repudiating the transaction or by getting a decree of a Court to set it aside. At p. 877, I find this observation:

We cannot uphold Mr. Rangachariars contention that wherever a transaction is voidable it can be avoided only by getting a decree of Court setting it aside. The party who is entitled to avoid may do so by an unequivocal act repudiating the transaction.... If Rajagopalan after attaining majority should wish to repudiate the lease, there can be no doubt he can do so without a suit.

61. In my opinion this is the correct view of the law and I hold that in the present case the minor had avoided the deed. It is unnecessary to deal with the argument whether the plaintiff who is the transferee from the minor can have any right whatsoever to avoid the deed which is said to be the personal right of the minor. I therefore agree that the appeal of defendant 5 must fail and should be dismissed with costs. I now proceed to consider the appeal of defendant 6. This relates to the subsoil rights of village Telmocho. The facts necessary to determine the contention of the appellant may now be stated here. (After re-stating facts, his Lordship proceeded further.) Sir Sultan Ahmad, there, fore relies upon the provision of Section 53-A in support of his argument that inasmuch as the appellant was in possession of the demised coal lands in village Telmocho and has done and is willing to do everything that was and is required to be done under the agreement of June 1923 the plaintiffs as the assignees of the mortgagee are bound to treat the appellant as the lessee of the coal lands even if no registered patta has been executed in his favour (it being conceded by the respondents before us that the lease of village Telmocho in favour of the appellant is a lease which would otherwise be binding upon the mortgage under the terms of paras. 18 and 19 of the mortgage bond or under the provisions of Section 65-A of the new Transfer of Property Act). The critical question to be considered therefore is whether Section 53. A can be held to be applicable to an agreement for lease which was entered into before the date when the new Act came into operation. Apparently, there are a number of conflicting decisions of some of the High Courts on this point but before dealing with these authorities it will be desirable to keep in view the language of some of the provisions of the Amending Act (20 of 1929) and of the Amending Act (21 of 1929). Both these enactments came into operation on the same date and both are addenda to the Transfer of Property Act, 1882.

62. It is necessary to keep in mind the following well-known canons of construction which are laid down by highest authorities in order to decide whether an Act is retrospective or prospective, (1) There is no presumption that the statute which takes away any existing right is intended to apply to a state of facts which came into existence before its commencement. (2) When the effect of the statute would be to make a transfer valid which was previously invalid, to make an instrument, which had no effect at all and from which the party had liberty to depart as long as he pleased, binding, the prima facie construction of the Act is that it is not to be retrospective. (3) If it is a necessary implication from the language employed that the Legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation because it is obviously competent for the Legislature if it pleases in its wisdom to make the provisions of an Act retrospective. (4) But if on the other hand the language employed by the Legislature is ambiguous or not clear and explicit the Court must not give a construction to the new Act which would take away vested rights, in other words should treat the Act as prospective. In applying these propositions, which I deduce from a large number of celebrated authorities, the Courts have sometime taken into consideration the state of law which was existing at the time when the Amendment Act was passed and they have, tried to visualise the object which the Legislature had in view in introducing the sections in the new enactment in order to find out whether any light could be thrown on the intention of the Legislature with a view to find out the meaning of the words employed.

63. Now, keeping these canons of construction in view, I ask myself what was the state of law which was in existence before 1st April 1930 and whether the Legislature had introduced that very law by the new Amending Act Fortunately this matter is quite clear. The state of law is lucidly mentioned in the judgments of the Privy Council in Mohamad Musa v. Aghore Kumar Ganguli A.I.R.1914. P.C. 27 and also in Laxmi Venkayyamma v. Venkata Narasimha Appa Rao A.I.R.1916. P.C. 9 . But the remarks in both these decisions were treated as obiter in the subsequent well-known cases of the Privy Council reported in AIR 1931 79 (Privy Council) , which was decided in the year 1931, and in AIR 1934 235 (Privy Council) , decided in 1934. This state of the law has not been reproduced in full by the new section under consideration because the section does not apply to parol agreements and makes the existence of a document in writing necessary, signed by the party, from which the terms of transfer or transaction could be ascertained with reasonable certainty and is made available only as a defence. Therefore this is a new legislation and the section must be held to be prospective and not affecting any transfer under the old law unless the Legislature speaks with a certain and clear voice.

64. It has been held in numerous cases which have centred round the interpretation of this section that the language used by the Legislature is neither very clear nor express but on the other hand is "somewhat dubious like that of the ancient oracles." When I look at Section 3 of Act 21 of 1929 which is a part of the same amendment of the same Act which came into force on the same date, I find that Section 27. A has been added to the Specific Belief Act and it allows either the lessor or the lessee to sue for specific performance of contract provided the other elements mentioned in Sub-clauses (a) and (b) are established. But this section applies to contract of leases executed after 1st April 1930. In my opinion this is a clear indication that the Legislature did not intend the new amendment to apply to contracts before 1st April 1930, otherwise I do not see any reason why contracts of leases are exempted from the supposed intendment to apply the law to all transfers. I now turn to Act 20 of 1929. Section 16 of the Act inserts the provisions under consideration. The argument of the appellant is that Section 63 of the Act specifically mentions that a number of sections referred to therein shall not be deemed in any way to affect the terms or incidents of any transfer of property made or effected before 1st April 1930 etc. etc., and therefore it follows (so it is argued) that Section 16 must be held to affect the terms or incidents of a transfer of property made or effected before 1st April 1930. In my opinion the Legislature has been over-careful in mentioning that the sections which they have referred to shall not be deemed to be retrospective but that does not show that they have expressly and clearly stated that the other sections shall be retrospective. The truth of the matter is that the Legislature have failed to say clearly whether Section 16 is or is not retrospective and there is nothing to indicate that Section 16 must necessarily be held to be retrospective.

65. I now proceed to consider two cases, one of this Court and the other of the Calcutta Court. The case of this Court which was referred to is the case in John Gurney Wakefield Vs. Kumar Rani Sayeeda Khatoon, . The question in that case was whether a certain agreement dated 4th August 1923, by which the defendant obtained a farming lease from the Maharaj Kumar of Tikari for a term of 20 years (which was not registered) could be relied upon by the defendant to establish his contention that he was a tenant and not a trespasser. The Subordinate Judge who tried that case considered himself bound by the decision of the Judicial Committee of the Privy Council in AIR 1931 79 (Privy Council) , and found that the defendant could base no claim to be a lessee on the strength of the unregistered document of 1923; but he did not consider the effect of the acceptance of rent by the plaintiff from the defendant in recognition of the contract. It will be noticed that the only question to be decided in this case was whether the defendant should be treated as a trespasser or as a tenants James, J. observed:

It is manifest, in the first place, that the occupation of the defendant-appellant during the years-in suit cannot be treated as that of a trespasser liable to pay damages or mesne profits. Rent had been demanded from him up to the end of 1335 Fasli which was duly paid. A demand was made for rent of the years 1336 and 1337 which was not satisfied. It is clear that he was a tenant, but it is not necessary for the purposes of this appeal to decide what may have been the terms of his tenancy.

66. The learned Judge had, just before this quotation, made a passing reference to Section 53-A, T.P. Act, in these words:

On the whole I think that the provisions of this section would apply to this contract and that the effect of Section 63 of Act 20 of 1929 is only to remove from the operation of the new Section 53-A those irregular part-performed contracts which on 1st April 1930 already formed the subject of pending litigation; but in the form which this appeal; has ultimately taken, this question, strictly speaking, does not arise.

67. The learned Chief Justice in his judgment took the same view. He stated that the question of the retrospective nature of Section 53-A, T.P. Act, is no longer of importance in this particular case," but proceeded to make some observations with regard to the effect of Section 53-A. With the utmost respect to the remarks of the learned Chief Justice I feel untrammelled to take my independent view as to whether Section 53-A is retrospective or not when the learned Chief Justice expressly states that the point does not arise for consideration at all. It is to be observed that neither James, J., nor the learned Chief Justice made any reference to the provisions of Section 27-A, Specific Relief Act which was added by Act 21 of 1929. I now refer to the case in Sk. Mahammed Hushen Vs. Jamini Nath Bhattacharji, where the two learned Judges of the Calcutta High Court have reviewed the case law at great length and have come to a conclusion, apparently with great hesitation, that the provisions of Section 53-A are retrospective and particularly applicable to the case before them where the transfer in question was a usufructuary mortgage bond executed on 10th December 1928 by which the mortgagor had placed the defendant in possession of the mortgage lands. As already indicated I do not agree with their conclusion because in my opinion the language used in Section 63 is not clear and explicit and I am unable to draw any conclusion that it must follow as a necessary intendment of the Legislature that the Act must be held to be retrospective. I respectfully agree with the observation of Mukherji, J. at p. 47 that "the Legislature no doubt speaks in a voice which is not very clear but is somewhat dubious, like that of the ancient oracles."

68. The question before us may also be considered thus. The appellant relies upon an unregistered agreement for lease. This topic has been, carefully dealt with by the Legislature in Section 27-A, Specific Relief Act which specifically provides that this shall not apply to contract of leases before 1st April 1930. I am therefore fortified in my view that the Legislature could not have intended to make two contradictory provisions in the same Act with respect to contract for leases and therefore Section 53-A where it is sought to be invoked in defence of a lessee who had entered in possession upon the footing of an unregistered contract for lease cannot be allowed to resist the action where the contract for lease was of a date anterior to 1st April 1930.

69. A question of some nicety arises as to whether the plaintiff is at all hit by the operation of Section 53-A, assuming that it was retrospective. The plaintiff is not the transferor of the defendant. The plaintiff purchased his right from the mortgagee who obtained his rights in 1922. The contract for lease in this case was in August 1923, that is, after the predecessor of the plaintiff had acquired an interest in this property as security for the mortgage amount. It will be difficult to hold that the plaintiff is a transferor from whom the defendant appellant derived his rights by reason of another transfer. The plain, tiff is merely asking for a mortgage decree at present. He may not have to execute his decree or on execution somebody else may become the auction purchaser. It is for this reason, I think, that the learned Subordinate Judge did not deal with this matter because in his view it was unnecessary to decide it in the present action. The learned Subordinate Judge took the few that the plaintiff as an assignee of the mortgage bond was entitled to enforce his rights to recover his dues;

the fact as to whether defendant 6 has derived any valid rights on the basis of that agreement or not will remain unaffected by that sale of the surface and sub-soil rights of mauza Telmocho in this mortgage decree.

If the defendant choose3 to redeem the plaintiff he may do so otherwise he must submit to a decree for sale of the mortgaged properties including those portions of village Telmocho which the appellant claims as his lease-hold properties. In my view the appellant has no locus standi to resist the claim of the plaintiff to sell the properties covered by the contract of lease of August 1923.

74. In the result I agree with my learned brother that the appeal of this defendant also fails. The appeal must be dismissed with costs.