Judgment 1. THIS appeal is by the defendant against an appellate decree, judgment being one of reversal. 2. SHORTLY put, the plaintiff's case in the plaint (in title suit No. 52 of 1955 in the first court of the Subordinate Judge, howrah,) is that the premises No. 59, Nilmony Mullick Lane, howrah was inherited by one Sm. Nithar Bala Dasi since deceased after the death of her husband, Ram Nath nandy, in widow's limited interest. The plaintiff purchased from her this property by a registered conveyance dated February 6, 1952 for Rs. 4,000/-and after her death by another registered deed of conveyance dated August 13, 1952 purchased also reversioners' interest on payment of further sum of Rs.1,500/- and thus acquired entire /16/- annas interest absolutely in the property. The plaintiff is in possession of a portion of this property on realising rents from tenants but the plaintiff's brother, defendant No. 1, who is in occupation of the first floor and a room on the ground floor of this premises as a licensee in spite of revocation of such licence instead of vacating is now claiming right, title and interest in the disputed premises to the extent of 8 annas share. In the written statement filed by the contesting defendant No. 1 his case, briefly, is that he and the plaintiff No. 1 agreed to purchase the property from Nithar Bala jointly in the name of their sons Santosh Kumair dey and Narayan Chandra Dey for Rs. 8,000/- and a Kobala was written on a stamp paper but owing to the plaintiff's inability to pay his share of consideration money of Rs. 4,000/- the kobala was not executed and registered. Subsequently as the defendant no. 1 paid his share of Rs. 4,000/- an agreement for sale was executed by nithar Bala in his favour pursuant to which he took possession of half of the suit premises. It was agreed further between him, Nithar Bala and the plaintiff that on payment of balance of Rs. 4,000/- by his brother Charu, plaintiff No. 1, within one year front the date of the agreement she would execute and register a Kobala in favour of both the brothers. The plaintiff no. It was agreed further between him, Nithar Bala and the plaintiff that on payment of balance of Rs. 4,000/- by his brother Charu, plaintiff No. 1, within one year front the date of the agreement she would execute and register a Kobala in favour of both the brothers. The plaintiff no. 1 though failed to pay his share of consideration money obtained fraudulently a Kobala from Nithar Bala, an illiterate and pardanashin woman, at Rs.4,000/- for the whole property with a motive to deprive him of his half share. 3. IT is also alleged that he made necessary repairs and improvements in his half share of the premises in his possession and paid municipal taxes. Several rent suits against the tenant as also a title suit filed by the plaintiff No. 1 against him were withdrawn. 4. DURING the pendency of the suit, it appears, the plaintiff No. 1 died and in his place all his sons and daughters were substituted as his heirs and legal representatives. The trial court decreed the plaintiffs' suit in part declaring their right, title and interest to the extent of 8 annas share in the said premises and for joint possession thereof with the defendant No. 1 or his son Santosh on the view that the defendant No. 1 was entitled to the benefit of part performance under section 53-A of the Transfer of Property Act and protect his possession in respect of 8 annas share of the suit property. It also held that the plaintiff No. 1 was not a bona fids purchaser for value without notice and obtained his Kobala from Nithar Bala fraudulently to deprive the defendant no. 1 of his share with a further finding that Nithar Bala agreed to sell the property to both the brothers for legal necessity. 5. ON appeal by the plaintiffs the court of appeal below differed from the trial court and decreed the plaintiffs' suit in its entirety on the view that the defendant No. 1 was not entitled to protect his possession on the plea of part performance. A further point that a trust was created in favour of the defendant No. 1 on the basis of the conveyance of plaintiff No. 1 which was raised at the appellate stage was also rejected. 6. IN the appeal before us, three questions arise for consideration. A further point that a trust was created in favour of the defendant No. 1 on the basis of the conveyance of plaintiff No. 1 which was raised at the appellate stage was also rejected. 6. IN the appeal before us, three questions arise for consideration. First, whether the defendant No. 1 or his son as the case may be is entitled to benefit of section 53-A of the Transfer of property Act. Secondly, whether such right even if he is entitled to is barred by limitation. Thirdly, whether the document of conveyance obtained by the plaintiff No. 1 raises a trust in favour of defendant No. 1 to the extent of his half share. As regards the first question it is undisputed that Charu, the brother of the present appellant, the plaintiff no. 1, had full knowledge of the unexecuted document of conveyance in the name of both the brothers and the agreement for sale (Chukti Patra) (Ext. B. The first appellate court does not appear to have disagreed with this part of the finding made by the trial court. It however, rejected the plea of part performance on several grounds, the first being that no such case was made in the written statement. Secondly, there was nothing on record to show that the defendant No. 1 performed his part of the contract as required by Ext. B. Thirdly, under the agreement he failed to pay the balance consideration money of Rs. 4,000/- and obtained a document of conveyance in his favour of the whole property and fourthly, he is not entitled under the agreement to enforce specific performance only in respect of 8 annas share of the suit property. We are unable to accept any of these reasons as sound. In the facts and circumstances of this case when the question as to the right of defendant No. 1 to get protection under section 53-A of the T. P. Act was fully considered by the trial court-mere absence of specific plea of part performance in the written statement cannot operate as a bar. It is also not correct that on record there is nothing to show that the defendant No. 1 did mot perform his part of the contract. At any rate it was not considered that the defendant No. 1 was not willing to perform his part of the contract. It is also not correct that on record there is nothing to show that the defendant No. 1 did mot perform his part of the contract. At any rate it was not considered that the defendant No. 1 was not willing to perform his part of the contract. As regards the option given under the agreement to have the conveyance executed in respect of entire property in his favour on payment of balance consideration money of Rs. 4,000/- it is true that the defendant No. 1 did not pay the amount but this clause could not take away his right to specific performance of a contract of the other half share in respect of which the defendant No. 1 paid the consideration money of Rs. 4,000/- and went into possession under the terms of the contract. Next reason, namely, section 53-A of the T. P. Act cannot contemplate splitting up of contract is also not well conceived. If from the contract to transfer terms 'can be ascertained with reasonable certainty' and in part performance of such contract the party claiming under it has taken possession of the property or any part thereof or continues in possession the right conferred by this section is available to him. In this case, there is no doubt, the terms of the contract for sale of the half share of the property to the defendant No. 1 in the name of his son are definitely ascertainable. It is equally clear, in part performance of this contract, he paid undisputedly the sum of Rs. 4,000/- as consideration and took possession and is 'continuing in such possession' of the property in half share. Another reason given that the contract itself is not admissible in evidence for want of registration is, in view of section 53-A itself, equally fallacious and untenable. In our opinion, the defendant No. 1, in the facts and circumstances of this case, is entitled to benefit of section 53-A subject, however, to the question of limitation raised in the appeal which we shall presently discuss. 7. BUT before we enter into such discussion we must notice, the court of appeal below rejected the plea of undue influence, coercion or collusion set up by the defendant No. 1 against the plaintiff No. 1 for obtaining the conveyance (Ext. 7. BUT before we enter into such discussion we must notice, the court of appeal below rejected the plea of undue influence, coercion or collusion set up by the defendant No. 1 against the plaintiff No. 1 for obtaining the conveyance (Ext. 1) simply because the defendant No. 1 himself wanted to take advantage of the very same conveyance on a plea of trust in respect of his own (8)-annas share in the suit property. This, in our view, was altogether an erroneous approach to the question in controversy. The trial court fully considered this question and on evidence found as a fact that the disputed document was obtained fraudulently by exerting undue influence upon Nithar Bala with a motive to deprive the defendant No. 1 of his legitimate half share in the suit property. It was not right and proper for the court of appeal below not to examine the correctness of this finding and to brush it aside altogether in a summary manner totally on miss application of rule of estoppel. The above plea taken, it is quite clear, is in the nature of alternative case which is normally open to defence. In our opinion, the decision so made by the court of appeal below on this question is also not correct. 8. NOW, on the second question as to bar of limitation it is unnecessary for the purpose of this case to trace the legislative history behind the enactment of this new amended provision of section 53-A of the T. P. Act. It would be sufficient to state that in view of the somewhat difficult legal position created on the authorities of several decisions of the Judicial Committee. (See (1) 42 IA, I, Md. Mussa v. Aghore kr. Ganguly; (2) 58 IA 91, Ariff v. Jadunath; (3) 61 IA 388, Pirbux v. Md. Tahar) in applying the English equitable principles of part performance in India the legislature in its wisdom introduced section 53-A by amendment of the T. P. Act in very broad and general terms irrespective of question of specific performance of contract to transfer, to protect a person from being ousted from an immovable property who has taken possession by virture of an agreement for transfer provided certain other conditions are fulfilled. It would thus appear that one of the objects to introduce this section is to lift the bar of limitation in protecting such possession on the basis of an agreement for transfer which difficulty, apart from other questions, in absence of such provision in the Act was felt in (2) Ariff's case (Supra) in giving relief as the right to specific performance of the disputed contract in that case was found to have been barred by limitation. If, therefore, in case of extending protection under section 53-A of the T. P. Act the same bar of limitation stands in the way, then clearly, the very object of introducing this section would be defeated. The view, we are taking, finds support in a bench decision of this Court reported in (4) AIR 1939 Cal. 163, Nakul chandra v. Kalipada Ghosal, relied on by Mr. Das Gupta for the appellant where considering the identical question of limitation though under different context Nasim Ali, J. (as his Lordship then was) inter alia expressed himself as follows : "there is nothing in section 53-A to indicate that the assertion of this right in defence is dependent on the original contract or is subject to any law of limitation. Limitation bars the remedy but not the right in possession. Section 28, Limitation Ad;, does not apply to this right. The contention of Mr. Roy that the defence based on the statutory right under section 53-A is not available, therefore, cannot be accepted." Mr. Das Gupta has also relied on two other decisions of the Bombay high Court reported in (5) AIR 1957 Bom. 138 , Nanasaheb v. Appa and (6)AIR 1987 Bom. 34, Maruti v. Krishna, in which the same view has been adopted. Mr. Ghosh, however, on behalf of the respondent has laid stress on the word 'enforceable' occurring in section 53-A of the T. P. Act and argued that the disputed contract under which the party seeks to claim the benefit of this section must be an enforceable contract. It is submitted that if the contract in question cannot be enforced because of law of limitation at the time when the defence of part performance is raised the plea of part performance cannot be availed of. Reliance is placed, first, on a Bench decision of this Court reported in (7) AIR 1938 Cal. 97, Md. Hossain v. Jamminath. It is submitted that if the contract in question cannot be enforced because of law of limitation at the time when the defence of part performance is raised the plea of part performance cannot be availed of. Reliance is placed, first, on a Bench decision of this Court reported in (7) AIR 1938 Cal. 97, Md. Hossain v. Jamminath. We do not think this case is of any assistance to Mr. Ghosh. In this case while considering the question whether section 53-A of the T. P. Act is only prospective or retrospective in its application it has been held that "when no action is pending and the suit is commenced after the Act came into force it would be open to the defendant to avail himself of the protection conferred by section 53-A of the T. P. Act". In any event, this decision does not militate against the view taken by us on the question of application of law of limitation, for it has been observed here also that this provision of section 53-A of the T. P. Act has been made available only as a defence. The other decision reported in (8) 58 CWN 1000, Sital Chandra Koley v. Mihilal koley, relied on by Mr. Ghosh equally appears to have no application to the question involved in the present case. In this case, while considering the question of enforceability of agreement for reconveyance against the pre-emptor appellant under section 26 F, it is held that since the institution of pre-emption proceeding was made with notice of the said agreement for sale the pre-emptor was bound by the same and could not resist its enforcement by raising merely plea of sub-section (7) of sec. 26 F of the Bengal Tenancy Act. No question of limitation on enforceability of the contract for sale under section 53-A of the T. P. Act arose. We are, therefore, unable to accept the contention of Mr. Ghosh as correct. 9. ON the third question as to raising of trust on the basis of plaintiff's conveyance the court of appeal below clearly failed to approach the question from proper perspective. It rejected the plea because it found that the plaintiff's conveyance was executed 23 months back and the plaintiff No. 1 was not entrusted with preparation of the document. These considerations, in our view, are totally irrelevant. Mr. It rejected the plea because it found that the plaintiff's conveyance was executed 23 months back and the plaintiff No. 1 was not entrusted with preparation of the document. These considerations, in our view, are totally irrelevant. Mr. Das Gupta has pressed the point before us relying on section 91 of Trust 'act and submitted that the plaintiff No. 1 on the basis of his conveyance held |8|- ans. share in trust for the defendant No. 1. Reliance is placed on a Bench decision of this Court reported in (9) 67 CLJ 188, Syed Md. Maleeh v. Shasi Mouli nag, where proposition as laid down is that if a co-sharer or a person who is in a sense trustee for the payment of rent with the express object of getting hold of the interest of the other cosharer defaults in payment of rent that purchase must be taken to enure for the benefit of the person so defaulted. It is argued applying the principles indicated in this decision that, in the instant case, there is no doubt that charu purchased the entire (16)-annas share of the property and became a trustee on the basis of his kobala for the defendant No. 1 in respect of his (8)- annas share. Mr. Ghosh, however, did not dispute the legal position but he advanced similar argument as to bar of limitation on the enforceability of the contract. We, however, think, the benefit conferred by section 91 also is available only by way of defence. No question of specific performance of the contract under this section arises. It raises a trust in favour of a person who holds a prior agreement for sale and is in possession of the disputed property and the person who purchased the property with notice of such agreement becomes a trustee. In our opinion, the question of limitation does not arise in claiming protection under this section. 10. IN the result, this appeal is allowed. We set aside the judgment and decree passed by the court of appeal below and restore that of the trial court but in the facts and circumstances we make no order as to costs.