Case Comment on the Case (Mian) Pir Bux V.

Mohamed Tahar AIR 1934 PC 235

INTRODUCTION
1
The project deals with case comment on the case (Mian) Pir Bux v. Mohamed Tahar and
analysis of the case related topics of Property Laws present in India. The case revolves
around Section 53A of the Transfer of Property Act, 1882. The doctrine discussed in section
53A is of Doctrine of Past Performance. The case discusses the applicability of the prevalent
section as the case was present in front of the Privy Council when this amendment was
passed. The case comment would revolve around all the aspect the section and the judgment
of the Privy Council.

RESEARCH DESIGN

Research Methodology
This is undoubtedly the most important part of any research undertaken by the researcher.
The researcher made sure that he cleared his mind of all the inclinations, biases and
prejudices before he conducted his research for this project. It is these inclinations, biases and
prejudices that hamper the flow and understanding of a research topic being deliberated upon
by a researcher. It is also the underlying duty of any researcher to do the same for a proper
and transparent representation of the research so conducted by him.
Doctrinal method has been used in completion of this project. The research is done by help of
secondary made available to the researcher. The major source of information used for the
research is the internet. The accessibility of technology has enabled the students to access
relevant facts and has also provided them a wide scope of availability of research material.
Textbooks available in the university have been referred and have been a very useful help in
finding about the topic.

Aims and Objectives

The aims and objectives of this research project were decided when the researcher read the
case for the first time. The aims and objectives were: -
 To read the case (Mian) Pir Bux V. Mohamed Tahar AIR 1934 PC 235.
 To separate the material facts from all the facts.

1
AIR 1934 PC 235.
  To find the procedural history of the case.
 To locate the ratio (holding) of the case.
 To understand the jurisprudential aspect of the case.
 To understand the doctrine of past performance in the case and cases related to it.

Scope and limitation

The limitation of the study is those characteristic of design or methodology that impacted or
influenced the application or interpretation of the results of the results of the results of the
researcher’s study. They are the constraints of the generalizability and utility of findings that
are the result of the ways in which the researcher chose to design the study and/or the method
used to establish internal and external validity.

Doctrinal method of research is method in which past researches and evidences are checked
to come to a conclusion thus it does give a large quantity of material but different theories
exist for the same event which hinders the research at time. The scope is limited till the
interpretation of the Act and the reforms to it. This makes the research limited but with a vast
area to study about.

FACTS OF CASE

The suit is between a Pir Bux (Khan Bahadur Mian) and Mahomed Tahar (Sardar). Mahomed
Tahar is an Afghan refugee and a political pensioner who formerly resided at Quetta, but was
currently living under orders in Sukkur. In 1919 Mahomed Tahar and Pir Bux were
applicants for grant of a same plot building ground. The Collector by order dated 25th
February, 1919, granted the northern half of the plot to the defendant and the southern half to
the plaintiff. Instruments giving effect to the grants were duly registered and executed. Both
the parties moved in to their plots respectively and began building operations.

Mahomed Tahar was desirous of returning to Quetta, and the Collector accordingly directed
in the order making the grant to him of the southern plot that he

“Should be requested to execute a private agreement with the defendant, the grantee of the
other half-plot to sell him his half land at cost price if he gets permission to go to Quetta by
the middle of May next.”

The plaintiff complied with this request on 25th March, 1919, executed an agreement
declaring that if during the May of 1919, he gets permission to live permanently at Quetta as
before he would sell his half-plot to the defendant at cost price.
On 23rd May, 1919, the Collector addressed a communication to the plaintiff informing him
that he had been allowed by the Government to return to Quetta, and on or about 4th June,
1919, the plaintiff and his family left for Quetta. The plaintiff was then called upon to execute
a conveyance of his half-plot in the favour of the defendant in terms of his agreement. The
plaintiff raised a question as to whether the permission granted was of permanent nature. The
Collector had the authority to reply to this question and replied that it was of permanent
nature. The plaintiff failed to execute a conveyance in favour of the defendant, and on the
22nd December, 1920, the Collector made an order cancelling the grant in the plaintiff’s
favour of the southern half-plot. The plaintiff appealed against this order to the
Commissioner, who declined to recall it. On the 17th March, 1921 the Collector made a new
grant in favour of defendant, who entered into possession and proceeded to carry on building
operations on it. The plaintiff moved to court after this action.

PROCEDURAL HISTORY

The plaintiff i.e. Mahomed Tahar raised the present action, which is dated 20th December,
1921, from where the whole case begins, here in the District Judge held that the plaintiff
agreed to sell his southern half-plot to the defendant had been satisfied by permission granted
to return back to Quetta. The District Judge further held that the Collector’s order cancelling
the grant in favour of the plaintiff was illegal and void. The defendant did not challenge the
order of the lower court but put in a case but bring in a suit of specific performance and after
the amendment done by the Acting District Judge; the court reversed the decision of the
lower court.

When the case was before the Judicial Commissioner’s Court pronounced that as per section
54 of the Transfer Of Property Act, a transfer by sale of Tangible immovable property of the
value of Rs.100 and upwards can be made only by registered instrument of transfer in his
favour. The section expressly enacts that a contract for the sale of immovable property “does
not of itself create any interest in or charge on such property”.

The Privy Council upheld the judgment of the High Court and passed order in which the
appellant would bear the costs of the respondent and the appeal was dismissed in the Privy
Council and the judgement of the lower court prevailed.
JUDGEMENT

The Privy Council upheld the decision of the lower court and got back the southern of the
plot to the Respondent by passing the same order passed by the lower court, the Privy
Council mentioned that as the case is before the amendment of 1929 and section 53A would
be over looked for this case. The English doctrine of part performance would not prevail in
this case as it the defendant’s possession was not even referable to the agreement of sale also
the Privy Council set aside the commissioners order under which the land was transferred.

The English doctrine of part performance is not available in India by way of the defence to an
action of ejectment (apart from the subsequent statutory alterations of the Transfer of
Property Act.). The doctrine of past performance is used with the statute of fraud which is not
available India thus the doctrine does not apply to the present case in hand.

Doctrine of Part-Performance

The concept of part performance has been taken from English Law. This principle though is
an English doctrine, but in India it has been incorporated with some differences. Thus, the
English doctrine of Part Performance and the Indian doctrine of Part Performance are little
different from each other. This principle was brought by the amendment made in the Transfer
of Property Act in the year 1929. Before the amendment, the English doctrine was not
applied to the cases of part performance as the doctrine was related to statute of fraud which
was not available in India. “This doctrine is a partial importation of the English doctrine of
part performance. It furnishes a statutory defence to a person who has no registered title in his
favour to maintain possession2.”

For applying the doctrine of Part performance, there are certain conditions that need to be
fulfilled which are as follows:

 that the transferee has, in part performance of the contract, taken possession of the
property or any part thereof, or the transferee, being already in possession, continues
in possession in part performance of the contract and has done some act in furtherance
of the contract,
 that the transferee has performed or is willing to perform his part of the contract, and

2
Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal Law Publishers) 561.
  that the plea of part performance is not available to be raised against a transferee for
consideration who has no notice of the contract or of the part performance thereof.3

“Also, this doctrine, which is a statutory right4, cannot be denied on the ground of
laches.5 This is available only as a defense for the transferee against the transferor. The
transferor’s rights, if there exists the defense of part performance, cannot invoke any of his
rights to get the property. Though the right is available to the transferee against the transferor,
and that it protects the right of the transferee of possession over the property, it does not
provide any entitlement to the transferee. It only provide with the right to remain or obtain
the possession over the property by the transferee.”

Conclusion

The present case one of the few major cases in which the doctrine of past performance was
not applied as case had reached the Privy Council before the amendment was done thus the
doctrine did not apply to the case.

The judges of the Privy Council and the Judicial Commissioners Court gave very sound
reasoning for the same; the judges derived their reasoning from the Transfer of Property Act,
the Registrations Act and also the Limitations laws as the appellant had also brought in the
suit for specific performance which could have been the correct suit but it was barred due to
limitations. As the law stood in India at that time, as per the lordships’ opinion no relevant
defense to an action by land-owner for ejectment to plead that the owner has agreed to sell to
the defendant the land of which the plaintiff seeks to obtain possession. The Privy Council
held that English equity of part-performance was not available in India against express
statutory provisions regarding registration contained in the Registration Act, and the Transfer
of Property Act.

3
D. S. Parivarthamma v. A. Srinivasan, (2003) 4 SCC 705.
4
Sanjeeva Row, Transfer of Property Act, , (Vol. 1, edition, 2012, Universal Law Publishers) 577.
5
Narsimhasetty v. Padmesetty, AIR 1998 Kant 389 (FB).