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1987 DIGILAW 506 (KER)

Nanu v. Karthiyani Amma

1987-10-13

PAREED PILLAY

body1987
Judgment :- 1. Appellants are defendants 1 and 2 in OS 378 of 1978 of the Munsiff Court, Perumbavoor. They challenge the concurrent findings of the Courts below that the plaintiff is entitled to recover the suit property with mesne profits 2. It is the case of the plaintiff that she had agreed to sell the property to defendants as per Ext.B1 agreement, on receipt of Rs. 4,800/- from them, that possession was given to them, that there were certain technical difficulties in executing the registered sale deed, and that 30th August 1972 was fixed as the outer limit for the execution of the sale deed. Plaintiff undertook to indemnify the defendants if the sale deed could not be executed due to any default on her side. Defendants admitted Ext.B1 agreement and possession pursuant to it, They contended that they have improved the property and constructed a building in it and the plaintiff was dodging the execution of the sale deed with ulterior motives. 3. Whether the defendants can invoke S.53A of the Transfer of Property Act by way of defence in the suit for eviction filed against them if the question to be considered in the appeal. Under the agreement Ext.B1 the entire consideration was paid by the defendants to the plaintiff and possession of the property was given to them. Plaintiff examined as Pw.1 admitted categorically that all the recitals in Ext.B1 are true and that she received Rs. 4, 800/- as full consideration. She deposed that possession of the property was handed over to the defendants on that date. Dw.1 stated that the entire amount under Ext.B1 was paid to the plaintiff, that he and the second defendant got possession of the property and that they have made valuable improvements including construction of a house. Exts. B-5 and B-6 evidence payment of tax. Ext.B7 is the land cess receipt issued from the Village Office to the first defendant. 4. By incorporation of S.53A in the Transfer of Property Act statutory recognition to the doctrine of part performance was given. Under S.53A the transferor or any person claiming under him shall be debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken possession under the contract of sale. Before invoking S.53A of the Act the transferee should have performed or was willing to perform his part of contract. Under S.53A the transferor or any person claiming under him shall be debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken possession under the contract of sale. Before invoking S.53A of the Act the transferee should have performed or was willing to perform his part of contract. S.53A seeks to protect the possession of a transferee against whom a suit in ejectment has been filed. Though the Section does not confer any right based on title upon a person in possession still he can prevent the transferor from recovering possession of the property already transferred to him. S.53A imposes upon the transferor a disability to enforce his title in the property against the transferee pursuant to an agreement for sale. In Nathulal v. Phoolchand (AIR 1970 SC 546) the Supreme Court has detailed the conditions which are necessary for making out a defence of part performance to an action in ejectment by the owner. The essential conditions necessary for making out a defence of part performance to an action in ejectment by the owner are: (1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) 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; (3) that the transferee has done some act in furtherance of the con-tract and (4) that the transferee has performed or is willing to perform his part of the contract. Ext.B1 shows that possession of the property was banded over to the defendants and that the entire consideration was paid to the plaintiff. It is in evidence that they have effected improvements in the property and that Dw.1 approached the plaintiff to get the sale deed executed in his favour. Dw.1 stated that when he approached the plaintiff he was told by her to meet her father and that when he met her father he was shunted back to the plaintiff. It is in evidence that they have effected improvements in the property and that Dw.1 approached the plaintiff to get the sale deed executed in his favour. Dw.1 stated that when he approached the plaintiff he was told by her to meet her father and that when he met her father he was shunted back to the plaintiff. As the above conditions have been fulfilled defendants can certainly seek the protection of S.53A of the Transfer of Property Act to defend their possession over the property even though the sale deed was not registered pursuant to the agreement. 5. S.53A was first enacted in 1929 by the Transfer of Property (Amendment) Act 1929 and imports into India a modified form of equity of part performance as developed in England in Maddison v. Alderson. This section has been described by the Privy Council and the Supreme Court as a partial importation of the English equitable doctrine of part performance. In view of S.53A part performance does not give rise to an equity, as in England, but a statutory right. That right is more restricted than the English equity in two respects viz. (1) there must be a written contract and (2) it is only available as a defence. S.53A creates rights which were not in existence before the enactment was passed. The rights to retain possession rests on the express provisions under S.53A. 6. No doubt, it is true that the defendants could not have claimed specific performance of the agreement as it was barred by limitation. The moot point to be considered is whether the defendant whose right to have specific performance is barred could seek the aid of S.53A as a shield to defend his possession as against the owner. No period of limitation is prescribed for the invocation of S.53A. Even if the suit for specific performance is barred by limitation the transferee is nevertheless entitled to resist the transferor's suit for ejectment and to defend his own possession. In Hanasaheb v. Appa (AIR 1957 Bombay 138 at 141) it is held as follows: "What S.53A seeks to do is to protect the possession of the defendant even where the defendant's right to obtain specific performance of the agreement has been barred by time." 7. In Hanasaheb v. Appa (AIR 1957 Bombay 138 at 141) it is held as follows: "What S.53A seeks to do is to protect the possession of the defendant even where the defendant's right to obtain specific performance of the agreement has been barred by time." 7. Lower appellate Court held that consideration in Ext.B1 does not represent the correct amount and the parties have not come to the Court with clean hand. That is nobody's case. The District Judge on mere surmises held that the correct consideration was not shown in Ext.B1. As there are no recitals in Ext.B1 agreement with regard to any charge created on the property by the plaintiff taking loan from the Union Bank and of any liability saddled on the defendants to pay off the same the suit filed by the Union Bank and the sale that followed are all irrelevant so far as the controversy between the plaintiff and the defendants are concerned. As the defendants can seek protection under S.53A of the Transfer of Property Act the only conclusion possible is that plaintiff cannot evict them from the property. 8. Thus the position is that though the defendants' right to specific performance is barred by limitation they can definitely defend their possession on the strength of Ext.B1 agreement even against the plaintiff the owner of the property. As the defendants are entitled to invoke S.53A to their benefit they can certainly successfully resist the suit. 9. I find that the plaintiff is not entitled to seek eviction of the defendants from the property. The judgment and decree of the trial Court which have been affirmed by the District Judge are hereby set aside. The suit stands dismissed. The Second Appeal stands allowed. No costs.