Mohammedunni Haji v. Ramachandran — 1989 DIGILAW 158 (KER)

Judgment :- Varghese Kalliath, J. These appeals are against a common judgment. Three brothers filed three suits against the appellant herein as 1st defendant and the father of the plaintiffs as supplemental 2nd defendant. The suit properties admittedly belonged to the plaintiffs. The properties were managed by their father the supplemental 2nd defendant. While so, the 2nd defendant entered into an agreement with the 1st defendant and pursuant to that agreement he was put in possession of the properties. 2. The plaintiffs filed the suit for recovery of the properties in the strength of title. The 1st defendant resisted the suit on the ground that he has got an entitlement to be in possession of the properties and to shield his possession he can use S.53A of the Transfer of Property Act. 3. The court below tried all the suits jointly and passed a common judgment. After considering the respective claims of the parties as revealed from their contentions and discussing the evidence recorded in the case, the trial court came to the finding that the 1st defendant in the proved circumstances cannot claim the benefit of S.53A of the Transfer of Property Act. The suits were decreed. Now the defeated defendants appeal. 4. Ext. Al is the agreement executed by the 1st defendant in favour of the 2nd defendant, father of the plaintiffs. It is dated 15-3-1977. Ext. B2 is the counter part of the agreement executed by Govinda Menon, the 2nd defendant in favour of the 1st defendant. There is no dispute that such an agreement has been entered into between the 2nd defendant and the 1st defendant. As per the agreement, an amount of Rs. 2,93,040/- has been paid to the 2nd defendant. Though the receipt of the amount is admitted when exactly the amount was paid and when exactly the properties were put in possession with the 1st defendant-appellant herein; there is serious dispute. This aspect of the matter we will be dealing with when we consider whether the court below was right in rejecting the claim of the 1st defendant, that he has got an entitlement to be in possession of the properties under S.53A of the Transfer of Property Act. 5. Learned counsel for the appellant submitted that a reading of Exts. This aspect of the matter we will be dealing with when we consider whether the court below was right in rejecting the claim of the 1st defendant, that he has got an entitlement to be in possession of the properties under S.53A of the Transfer of Property Act. 5. Learned counsel for the appellant submitted that a reading of Exts. A1 and B2 and the evidence of DW2 would enable this Court to reach a conclusion that the plaintiffs cannot recover the properties from the 1st defendant since the 1st defendant is legally entitled to be in possession of the properties under S.53A of the Transfer of Property Act. Presently we shall consider the application of S.53A of the Transfer of Property Act on the facts unfolded in this case. o.S.53 A was first introduced in the Transfer of Property Act by the Transfer Property Amendment Act, 1929. By the introduction of this section the modified form of equity of part performance as developed in English Law in Maddison v. Alderson was recognised by the statutory law of India. Before the introduction of this Section there was considerable uncertainty in Indian Law on this subject. The Privy Council in AIR 1934 P.C. 235 ((Mian) Pir Bux v. Mohamed Tahar) made it clear that under Indian Law a contract for the sale of immovable property does not of itself create any interest in or charge on such property. This is so because of the clear provision in S.54 of the Transfer of Property Act which clearly mandates that an agreement for sale "does not of itself create any interest in or charge on such property". The Privy Council said that in the light of S.54 there is no room for the application of the English equitable doctrine that a con tract for sale of real property makes the purchaser the owner in equity of the estate. Their Lordships of the Privy Council observed thus:- "Thus under the law applicable before the insertion of S.53A, an averment of the existence of sale, whether with or without an averment of possession following upon the contract was not relevant defence to an action of ejectment. If the contract is still enforceable the defendant may found upon it to have the action stayed, and by suing for specific performance obtain a title which will protect him from ejectment. If the contract is still enforceable the defendant may found upon it to have the action stayed, and by suing for specific performance obtain a title which will protect him from ejectment. But if it is no longer enforceable, its part performance will not avail him to any effect". The Privy Council relied on the decision reported in AIR 1933 PC. 29 (Currimbhoy & Co.Ltd.v. LA. Creet & others) and AIR 1931 P.C.79 (G.H.C.Ariff v. Jadunath Majumdar Bahadur). The Supreme Court in AIR 1964 SC 877 (Chaliagulla Ramachandrayya and others v. Boppana Satyanarayana and others) referring to AIR 1916 P.C. 9 (Venkayyamma Rao v. Venkata Narasimha Appa Rao) and AIR 1931 PC. 79 observed that S.53A introduces in a limited form the English doctrine of equity of part performance. It was emphasised that after S.53A was enacted the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of S.53A are satisfied. The Supreme Court also said thus: "Quite clearly, S.53Adoes not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument". On the above observations of the Supreme Court we have to deal with this case after delineating the requirements of the section and examining whether the requirements of the section are complied with on the facts disclosed in this case. Now we shall quote S.53A of the Transfer of Property Act. On the above observations of the Supreme Court we have to deal with this case after delineating the requirements of the section and examining whether the requirements of the section are complied with on the facts disclosed in this case. Now we shall quote S.53A of the Transfer of Property Act. It runs thus:- "S.53A Where any person contracts to transfer for consideration any immovable 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, and 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, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not be completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. It is obvious from the provisions of the section that the contract must be signed by or on behalf of the person sought to be charged under the Section. The contract must be in writing. It must be a contract to transfer the immovable property for consideration. The terms necessary to constitute the transfer should be reasonable. In such a contract the transferee as in part performance of the contract should take possession of the property or any part thereof. If the transferee is already in possession on the basis of the contract and if he continues in possession in part performance of the contract and has done some act in furtherance of the contract the requirements under S.53 A are satisfied. If the transferee is already in possession on the basis of the contract and if he continues in possession in part performance of the contract and has done some act in furtherance of the contract the requirements under S.53 A are satisfied. Further it is made clear that the transferee should perform his part of the contract or he should be willing to perform his part of the contract. 7. Exts. Al and B2 are signed by the 2nd defendant, the father of the plaintiffs. He does not say or disclose clearly in the agreement that he is in management of the properties of his sons and that he has got the authority or power to enter into an agreement for the sale of the properties of his sons. He has not signed the agreement on behalf of the owners of the properties, namely, the plaintiffs. The Section mandates that the contract which can be used as a shield to defend the possession of the properties must be in writing signed by the owner or on his behalf. The question arose whether in a case where the contract is signed really on behalf of the owner but that fact has not been disclosed in the contract, the requirement that it must be signed by the owner or on his behalf is satisfied or not. There was divergence of opinion on this question. In two Madras decisions reported in AIR 1944 Madras 337 (Sri Kakulam Subrahmanyam and another v. Kurra Subba Rao) and AIR 1948 Madras 526 (Bandaru Rattayya and others v. Gaddam Chandrayya and others) the High Court of Madras took the view that if the contract was signed by another person as agent or Karta of a joint family, a plea of part performance could not be taken against the members of the joint family unless it was expressly stated to be on behalf of the joint family. AIR 1948 Madras 526 followed AIR 1944 Madras 337. The Madras decision reported in AIR 1944 Madras 337 has been expressly overruled by the Privy Council in AIR 1948 P.C. 95. The Andhra Pradesh High Court also took a view similar to the view that has been taken by the Madras High Court in AIR 1959 A.P .534 (Yeditha Satyanarayanamurty and others v. Tadi Subrahmanyam and others). The Madras decision reported in AIR 1944 Madras 337 has been expressly overruled by the Privy Council in AIR 1948 P.C. 95. The Andhra Pradesh High Court also took a view similar to the view that has been taken by the Madras High Court in AIR 1959 A.P .534 (Yeditha Satyanarayanamurty and others v. Tadi Subrahmanyam and others). A Full Bench of the Andhra Pradesh High Court reported in AIR 1967 A.P. 237 (Padmanabharaju v. Lakshmi Kumara) overruled AIR 1959 A.P. 534. 8. Though it is not expressly stated in the agreement that the executant is signing the agreement on behalf of someone who is the true owner of the property if the contract is signed by a person whose act would be biding on the real owner and the contract has been signed by him to bind the true owner we feel that in such cases also the Section is applicable. We have no hesitation to say that the Section does not mandate such an explicit statement of the authority of the executant in the agreement if he has real authority to bind the real owners of the property. The could should give a purposive and meaningful construction of the words used "signed by him or on his behalf. A liberal construction on this requirement of the Section is in accordance with the English Law. So the contention that the agreement has not been signed expressly stating that it has been signed on behalf of the real owners of the property is not a contention which we can be accepted as legally correct. So now we proceed to investigate on the crucial question whether the 2nd defendant, the father of the plaintiffs had legal authority to bind by his act the real owners of the property, namely, the plaintiffs. There is no dispute in this case that at the time when the 1st defendant contracted to purchase the properties he was aware of the fact that the properties were owned by the plaintiffs. The learned counsel for the respondents submitted that the 2nd defendant contracted to sell the properties in his individual capacity. Ext. B3 is a notice issued to the father of the plaintiffs. This was issued on 25th February, 1977. In the operative portion of the notice it is stated that the first defendant should execute the document after receiving the balance consideration. Ext. B3 is a notice issued to the father of the plaintiffs. This was issued on 25th February, 1977. In the operative portion of the notice it is stated that the first defendant should execute the document after receiving the balance consideration. We shall quote the operative portion of Ext. B3: From the above it is clear that at the time of issuing Ext. B3 which is dated 25-2-1977 the first defendant wanted the 2nd defendant, the father of the plaintiffs to discharge his obligation by executing the document of sale. Of course, the learned counsel for the appellant referred to us a statement that the 2nd defendant is trying to extricate himself from his obligation to cause the execution of sale deed by his sons. This is the exact passage relied on by the learned counsel for the appellant: It is emphasised that the word ('Tharuvikathe') denotes that the obligation of the 2nd defendant is to cause or compel the true owners of the properties to execute the sale deed. Here it is significant to note that Ext. B3 is prior to Exts. Al and B2. The case of the first defendant is that he was put in possesion of the properties even before Exts. Al and B2, on 16-11-1976 after receiving an amount of Rs. 1,00,000/- as advance. As regards the date of receipt of this amount was we said earlier, there is serious controversy. Exts. Al and B2 would clearly show that this amount was given by a draft on the date of Exts. Al and B2. The learned counsel for the appellants relies on the evidence of DW2 who has deposed that the first defendant has paid an amount of Rs. 1,00,000/- and he was put in possession of the properties. It is difficult to rely on the evidence of this witness as he himself has said that he is not on good terms with the plaintiffs and their father when he has given the evidence before the court. Further the case of the 1st defendant that the amount has been paid on 16-11-1976 is inconsistent with what has been stated in the agreement Exts. Al and B2. We feel that it is not at all possible for us to accept the submission that on receipt of an advance amount of Rs. Further the case of the 1st defendant that the amount has been paid on 16-11-1976 is inconsistent with what has been stated in the agreement Exts. Al and B2. We feel that it is not at all possible for us to accept the submission that on receipt of an advance amount of Rs. 1,00,000/- by the father of the plaintiffs on 16-11-1976 the first defendant was put in possession of the properties. 9. The learned counsel further relied on the evidence of DW2 to point out that in fact Govinda Menon had the authorisation or the power to enter into a contract for the sale of the properties of his sons on their behalf. No written agreement authorising the father by the sons to sell their properties is required if there is sufficient proof that the sons have in fact authorised their father to enter into an agreement for the sale of the properties which will enable the 1st defendant to plead successfully the statutory defence under S.53A. Pw.l one of the plaintiffs has definitely stated that his father had no right to represent the sons in the matter of selling their properties. Certainly no document is produced to indicate that the father, the 2nd defendant had the authority to represent his sons. Even the written statement does not clearly indicate that Govinda Menon had a legal authorisation to contract for the sale of the properties of the plaintiffs. What is stated in the written statement is that the decision of the 2nd defendant to execute the sale deed was a decision taken by him as the representative of the plaintiffs and that they have recognised that status of the 2nd defendant. The evidence is lacking in the case to find that Govinda Menon, the father of the plaintiffs had at the time of entering into the contract with the 1st defendant the proper legal authority to bind' the plaintiffs. So long as the 2nd defendant had no such authority, one of the most important requirements of S.53A is missing in the case. 10. Learned counsel for the appellant submitted before us that this Court should note the entire circumstances of the case and should not be pursuaded by the technicalities involved in this case. So long as the 2nd defendant had no such authority, one of the most important requirements of S.53A is missing in the case. 10. Learned counsel for the appellant submitted before us that this Court should note the entire circumstances of the case and should not be pursuaded by the technicalities involved in this case. He submitted that in fact and in reality the properties were entirely managed by the father and that fact was well known to all concerned and when the father entered into a contract for the sale of the properties and put 1st defendant in possession of the properties the plaintiffs did not demur that action of the father and the suit was instituted after long delay, namely, on 1-3-1978. He submitted that even if it is admitted that the posseassion of the properties was transferred only by virtue of Exts. Al and B2 that itself was on 15-3-1977 and the suit was instituted only on 1-3-1978. The learned counsel developed an argument that in fact there was an oral karar dated 16-11-1977. The 1st defendant got possession of the properties and the suit for injunction was compromised and all questions were settled by the execution of Exts. Al and B2. As we said earlier, it is difficult for us to accept, the case of the 1st defendant that he has paid an amount of Rs.1,00,000/- on an oral karar and got possession of the properties in November, 1977. As observed by the Supreme Court there is no scope for us to import considerations of equity and notions of justice beyond the principles laid down in S.53A. Further it is to be noted that in dealing with issue No. 5 the court below has found that the plaintiffs are entitled to recover possession of the plaint schedule properties with mesne profits only on deposit of Rs. 2,93,040/-. We are told that the said amount has been deposited in a Bank in the account of the suits which have given rise to these appeals. In the result we find no reason to interfere with the judgment and decrees of the court below. The appeals are dismissed. We direct that both the parties should bear their respective costs in these appeals.