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1. This is a second appeal from the Assistant Judge of Thana. It raises a point of law which has given rise to a certain amount of difference of opinion amongst the High Courts in India, the question being; whether Section 53A of the Transfer of Property Act, which came into operation on April 1, 1930, applies to transactions which took place before that date.

2. In the present case the plaintiff transferred to the defendant certain immoveable property in February and March, 1926, and the purchaser was let into possession, but the documents of transfer were not registered. This suit was filed on June 20, 1935, and by it the plaintiff, i.e. the vendor, seeks to recover possession of the property, her case being that the defendant cannot rely on the transfers to himself because they are not registered and cannot be given in evidence by reason of Section 49 of the Indian Registration Act. The answer of the defendant is that he is entitled to give his transfers in evidence: under Section 53A of the Transfer of Property Act. The learned trial Judge held that the defendant was entitled to rely on Section 53A of the Transfer of Property Act, but in appeal the learned Assistant Judge held that Section 53A could not operate upon a transaction which took place before that section was introduced by the legislature. It is conceded on this appeal that the transfers in question are such as to fall within the operation of Section 53A, and the only question is whether the section has any retrospective effect.

4. Section 53A of the Transfer of Property Act came to be enacted in these circumstances :There were cases in India in which the doctrine of part performance, which is a doctrine invented by Courts of Equity in England in order to mitigate hardships resulting from the application of the Statute of Frauds, which requires certain contracts to be in writing, had been applied in India in order to mitigate what was considered the hardship resulting from a strict application of the Indian Registration Act. In Ariff v. jadunath Majumdar the Privy Council held that those cases were wrongly decided, and that there was no justification for introducing the English equitable doctrine of part performance into India for the purpose of defeating the plain terms of an Indian statute. In that state of affairs the Legislature passed as from April 1, 1930, Section 53A of the Transfer of Property Act, the effect of which is to introduce in certain cases the doctrine of part performance as an answer to non-registration under the Indian Registration Act. No doubt the general principle is that Acts of the legislature are not given retrospective effect unless the language makes it clear that such was the intention, but I apprehend that in applying that principle one must have regard to the general character of the Act in question, and when construing an Act introduced for the purpose of applying an equitable doctrine to certain transactions considered ex hypothesi to be lacking in equity one should not assume that the legislature intended that the Act should not have retrospective effect, but wished to preserve rights acquired in such transactions. I therefore read Section 53A without any pre-conceived idea that in all probability the legislature did not intend it to have any retrospective operation.

10. But then we have to consider the effect of Section 15 of Act XXI of 1929, which deals with the Indian Registration Act, and I do not find that that section has been referred to in any of the cases, except the Madras case which I have mentioned. As I have pointed out Section 53A expressly provides that in the contracts referred to in spite of non-registration the transferor is debarred from enforcing his rights. If no amendment had been made in the Indian Registration Act, it seems to me clear that Section 53A would have overridden Section 49 of the Indian Registration Act in respect of contracts falling within the former section. But, I suppose, from excess of caution, the legislature thought it desirable to amend Section 49, and accordingly a proviso was added to that section as from April 1, 1930, which so far as material enacts that an unregistered document affecting immoveable property and required by this Act to be registered may be received as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882.

13. It seems to me that the amendment of Section 49 of the Indian Registration Act was only passed ex abundante coutela and was not necessary, and the fact that that amendment was not made retrospective cannot, I think, have any great weight in considering whether Section 53A of the Transfer of Property Act is made retrospective. For the reasons which I have already given which are based, first, on the language of Section 53A, and, secondly, on the omission of Section 16 from the enumerated sections in Section 63 of Act XX of 1929, I am of opinion that Section 53A was intended to apply and does apply to transactions which took place before April 1, 1930. In my opinion, therefore, the decision of the trial Judge was right, and this appeal must be allowed and the plaintiff's suit must be dismissed with costs throughout.