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2005 DIGILAW 298 (KER)

N. Devadas v. Elizabeth Stephen

2005-05-16

PIUS C.KURIAKOSE

body2005
Judgment :- Defendants-husband and wife respectively-who have preferred this appeal challenge the decree of declaration-cum-recovery of possession concurrently passed against them by the trial court and the lower appellate court. The suit was instituted by the respondent-plaintiff seeking declaration of her title over the suit property and for recovery of possession of the property which has buildings on the same with mesne profits at the rate of Rs.60/- per mensem and also for recovery of amounts by way of arrears of mesne profits. The substance of the plaint allegations was that the plaintiff is the absolute owner of the suit property; that on 20th February, 1975 the plaintiff entered into an agreement with the 2nd defendant for sale of the plaintiff’s right over the plaint schedule property for a total consideration of Rs.21,000/-; that an advance of Rs.2000/- was paid to the plaintiff; six months was the period for performance of the mutual obligations under the agreement; that the defendants are obliged to pay the entire balance consideration of Rs.19,000/- within the aforesaid period and get a sale deed executed by the plaintiff: if in spite of payment of the amount, the plaintiff does not execute the sale deed, the defendants have got a right to have specific performance of the agreement through court. The agreement provides that upon the expiry of the period of six months, the validity and effect of the agreement will also expire. The further pleadings are that the mother of the plaintiff who is no more had filed a suit before the Munsiff’s Court as O.S.362 of 1977 for recovery of possession of the suit property and the buildings with damages for use and occupation. The Munsiff’s Court did not grant recovery, but only granted damages for use and occupation at the rate of Rs.60/- per mensem. Though the mother filed A.S.8 of 1981, the appellate court also confirmed the judgment and decree of the Munsiff’s Court. The defendants deposited the damages for use and occupation at the rate decreed by the Munsiff’s Court till June, 1985. Thereafter, they defaulted. The mother passed away on 2.3.1988. Upon the demise of the mother the plaintiff has become the absolute owner. Defendants have not so far taken any steps to have the suit property sold to them by the plaintiff. Defendants have never tendered the balance sale consideration. Thereafter, they defaulted. The mother passed away on 2.3.1988. Upon the demise of the mother the plaintiff has become the absolute owner. Defendants have not so far taken any steps to have the suit property sold to them by the plaintiff. Defendants have never tendered the balance sale consideration. The defendants have already forfeited their rights under the agreement. The delay in the matter of the plaintiff filing the present suit is the pendency of proceedings initiated by the mother who was having a life estate over the property. Defendants are not entitled to continue in possession nor are they entitled for refund of the advance sum of Rs.2000/-. In spite of several demands by the plaintiff, defendants have not chosen to surrender possession back to the plaintiffs. Even the registered notice that was sent to the defendants in that regard was evaded by them. 2. Defendants in the joint written statement filed by them contended that the suit is barred by limitation and that the suit is also barred by the principles of res judicata. Execution of the agreement was admitted by the defendants. But it was contended that in part-performance of the agreement, the 2nd defendant was put in possession; that the 2nd defendant evicted the tenants of the building situated on the property and thus came to have possession of the entire suit property. It was further contended that thereafter the name of the residential building on the suit property was changed and saw-mill business was commenced in the property under the name and style “Chitra Saw Mill”. It was further contended that the 2nd defendant was ready and willing to purchase the property during the agreement period. It was the plaintiff who was not so willing. Defendants are even now ready and willing to purchase the suit property. The saw-mill in question was purchased by the defendants in 1965 itself and thereafter they set up residence in the residential building situated on the property and started conducting saw-mill business from 1965 onwards. It was while so that the suit agreement was executed between the plaintiff and the 2nd defendant. Plaintiff was also a party to the suit which was instituted by her mother as O.S.362 of 1977 and the appeal A.S.8 of 1981. It was while so that the suit agreement was executed between the plaintiff and the 2nd defendant. Plaintiff was also a party to the suit which was instituted by her mother as O.S.362 of 1977 and the appeal A.S.8 of 1981. It had been found in that suit and the appeal that the defendants are in possession of the property in part-performance of the agreement for sale and therefore defendants are not liable to be evicted. Till the demise of the mother damages for use and occupation was being paid at the rate of Rs.60/- per month. The plaintiff had not acquired any interest over the suit property upon mother’s demise. Subsequent to the agreement, the defendants have expanded the saw-mill business by expending more than Rs.10,000/-. Compound walls were constructed on the eastern and northern sides of the suit property. On the other two sides, fences were constructed. The residential building was thoroughly renovated expending a sum of more than Rs.10,000/-. A store-room was added on to that building. Several types of yielding trees were planted on that suit property. There is no substance in the plaintiff’s contention that because of the litigation initiated by the mother, the plaintiff did not take action so far. The appeal was dismissed as early as on 23.6.1983. The plaintiff has no right over the suit property except the right to get the balance sale consideration. 3. The learned Subordinate Judge formulated the following issues:- 1. Whether the suit is not maintainable? 2. Whether the suit is barred by res judicata? 3. Whether the suit is barred by limitation? 4. Whether the agreement dated 20.2.1975 for sale of the plaint schedule property is vitiated by fraud? 5. Whether the 2nd defendant was put in possession of the plaint schedule property under the contract for sale? 6. Whether the 2nd defendant has done anything in furtherance of the contract? 7. Whether the 2nd defendant has been ready and willing to perform her part of the contract? 8. Whether the plaintiff is entitled to recover possession of the plaint schedule property? 9. What, if any, is the mesne profits due to the plaintiff? 10. Whether the plaintiff is entitled to recover the plaint amount? 11. Whether the plaintiff is entitled to the injunction prayed for? 12. Reliefs and costs? 8. Whether the plaintiff is entitled to recover possession of the plaint schedule property? 9. What, if any, is the mesne profits due to the plaintiff? 10. Whether the plaintiff is entitled to recover the plaint amount? 11. Whether the plaintiff is entitled to the injunction prayed for? 12. Reliefs and costs? Issue No.2 regarding res judicata and issue No.3 regarding limitation were considered by the trial court on 2.11.1990 as preliminary issues and decided in favour of the plaintiff. Defendants did not challenge those findings. The evidence which came on record at trial was the oral testimony of P.W.1 (power-of-attorney) holder of the plaintiff who was the plaintiff’s father) and Exts.A1 to A8 on the side of the plaintiff. On the side of the defendants the evidence consisted of the testimony of DWs.1 to 3 and documents Exts.B1 to B3. The trial court decided issue No.4 as to whether the agreement is vitiated by fraud against the plaintiff on the reason that there are no proper pleadings or evidence. Issue No.5 as to whether the defendants were put in possession pursuant to Ext.B1 agreement was decided against the defendants on the reason that even in 1965 the defendants were in possession of Ext.B2 schedule property, i.e. the saw-mill and the residential building. Issue No.6 was answered partly in favour of the defendants finding that on the northern and eastern sides of the suit property compound walls were constructed by the defendants. Issue No.7 as to whether the defendants were ready and willing to perform their part of the agreement was answered against them on the reason that the evidence in that regard was Nil. Issue No.8 as to whether the plaintiff is entitled for recovery is considered by the trial court in the context of Section 53A of the Transfer of Property Act. The learned Sub Judge analyzed Section 53A and answer the issue in favour of the plaintiff. Under issue No.9 the trial court relied on the findings in Ext.A3 judgment and held that Rs.60/- per mensem is the mesne profits to be paid. On that basis issue No.10 is also answered in favour of plaintiff. Issue No.11 regarding injunction is answered in favour of the plaintiff noticing that PW1 is not at all cross-examined on this aspect and that no counter-evidence is adduced by the defendants regarding this aspect. On that basis issue No.10 is also answered in favour of plaintiff. Issue No.11 regarding injunction is answered in favour of the plaintiff noticing that PW1 is not at all cross-examined on this aspect and that no counter-evidence is adduced by the defendants regarding this aspect. Thus, the suit was decreed in favour the plaintiff. 4. In first appeal before the lower appellate court, the argument seriously urged by the appellants was that they are entitled to the protection of Section 53A of the Transfer of Property Act. Before the lower appellate court the following aspects were conceded by the parties:- 1. Ext.B1 agreement for sale was actually executed in respect of the suit property and an advance consideration of Rs.2000/- was received by the plaintiff. 2. Plaintiffs late mother was having life estate over the suit property, but it was without the mother’s junction that Ext.B1 was executed. 3. Though the mother sued for recovery of possession and also for damages for use and occupation, under Ext.A2 suit recovery was not decreed but only mesne profits were decreed. 4. Long prior to Ext.B1, defendants were having possession of the building situated on the suit property and what they did after Ext.B1 was to evict one of the tenants of that building. 5. The plaintiff’s absolute title over the suit property was also not disputed before the lower appellate Court. 6. The finding of the trial court that compound walls on two sides of the property were constructed by the defendants and that too after Ext.B1 was also not seriously challenged before the lower appellate court. The lower appellate court made a de novo reappraisal of the evidence and the pleadings. That court reanalyzed section 53A of the Transfer of Property Act. Following the principles laid down by the Supreme Court in Nathulal v. Phoolchand (AIR 1970 SC 546), the lower appellate court found that the defendants are not entitled to the protection of that statutory provision. However, the lower appellate court interfered with the judgment and decree of the trial court to a certain extent by directing the plaintiff to pay back the advance of amount of Rs.2000/- to the defendants before execution of the decree was levied. 5. I have heard the arguments of Sri. T.R. Raman Pillai, Senior Advocate on behalf of the appellant and Sri. K.C. John, Senior Advocate on behalf of the respondent. 6. Sri. 5. I have heard the arguments of Sri. T.R. Raman Pillai, Senior Advocate on behalf of the appellant and Sri. K.C. John, Senior Advocate on behalf of the respondent. 6. Sri. T.R. Raman Pillai at the very outset invited my attention to the following questions of law:- (A) Whether the third condition necessary for making out the defence of part-performance of an action in ejectment by an owner, that the transferee has done some act in furtherance of the contract, is not satisfied by payment of the advance amount as part of the sale consideration or whether the act done in pursuance of the contract must be independent of the terms of the contract. (B) Whether on the facts and circumstances of the case, the construction of the compound walls for protection of the property do not constitute an act done in furtherance of Ext.B1 contract which also satisfies the 3rd condition necessary for making out the defence of part performance of the action in ejectment. (C) Whether is it not an implied condition of the contract of sale that the plaintiff should get express consent from her mother for execution of the sale deed within the time stipulated in the agreement since she had no valid and absolute title on the date of the agreement and within the time stipulated therein. (D) When the plaintiff had thus failed to perform her part of the contract, can the defendants be called upon to perform their part of the contract of paying the balance sale consideration to have the sale deed executed. (E) Whether it is legally necessary to produce the money or to vouch a concluded scheme for financing a transaction, to prove that the purchaser was ready and willing to perform his part of the contract. (F) Whether the 4th condition necessary to make out the defence of part performance in an action for ejectment by the owner is not satisfied by expressing readiness and willingness to pay the balance sale consideration when Section 53A of the Transfer of Property Act is sought to be made use of by the purchaser, including expression of such willingness and readiness even when the matter is heard as laid down in Teja Singh v. Ram Parkash (AIR 1984 Punjab and Haryana 95) and Nanjedevaru v. H.V. Rama Rao (AIR 1959 Mysore 173). The learned Senior Counsel submitted that all the above questions which were formulated by this Court while admitting the second Appeal as suggested by the appellants in the Memorandum of Appeal are substantial questions of law which are actually involved in the Second Appeal. According to Mr. Raman Pillai, both the courts below have erred seriously in analyzing and appreciating Section 53A of the Transfer of Property Act, and entering findings on the questions as to whether the appellants are entitled to the equity which is granted under that provision. Mr. Raman Pillai, submitted that it was beyond doubt that the plaintiff was in breach of the agreement since she left that the place without informing the defendants regarding her whereabouts and also since her mother who could have been treated as the plaintiff’s representative not only was not prepared to execute the sale deed but even filed a suit for evicting the defendants. Under these circumstances, it would not have been possible for the defendants to pay the balance sale consideration to the plaintiff and to request her to execute the sale deed in their favour. The finding that the defendants had caused breach of the contract therefore is totally incorrect. Plaintiff having taken up a contention that the contract itself is the result of fraud played by the defendants will not be entitled to blame the defendants for breach of contract since it was clear that the plaintiff herself was disowning the contract and therefore not willing to perform her obligations under the agreement. The courts below having seen that the agreement is genuine should have seen further that it was the plaintiff who violated the agreement. The plaintiff having executed the agreement for sale over a property upon which her mother was having life estate without the junction of the mother, the courts below should have found that there was an implied agreement by the plaintiff to execute the sale deed after obtaining the mothers’ junction to the same. Mr. Raman Pillai argued that when a court decides the question whether a particular person has been ready and wiling to perform his obligations under the agreement, the sequence in which the parties to the agreement are to perform their respective obligations under the agreement was most important. Mr. Raman Pillai argued that when a court decides the question whether a particular person has been ready and wiling to perform his obligations under the agreement, the sequence in which the parties to the agreement are to perform their respective obligations under the agreement was most important. The very first thing as far as the present agreement is concerned is that the plaintiff must obtain her mother’s consent for execution of sale deed in favour of the defendants. So long as the plaintiff is not able to get such consent, she will not be entitled to insist that the defendants shall pay the balance consideration to the plaintiff. Readiness and willingness on the part of the defendants, according to Mr. Raman Pillai, will not mean that the defendants should necessarily produce the money or vouch a concluded scheme for financing the transaction. The willingness which is expected of a party claiming the protection of Section 53A of the Transfer of Property Act to perform his part of the agreement is a willingness to be expressed by him at the time when he claims protection. The findings of the trial court that conditions 1 to 3 laid down by the Supreme Court in Nathulal (AIR 1970 SC 546) to entitle a person to the protection of Section 53A has been satisfied in this case is a correct finding. The trial court went wrong in saying that the fourth condition was not satisfied. The finding of the appellate court that conditions Nos.3 and 4 have not been satisfied is absolutely wrong. All the four conditions laid down by the Supreme Court in Nathulal (supra) have been satisfied in this case in favour of the appellants-defendants. Mr. Raman Pillai relied on (apart from Nathulal) the decisions reported in Teja Singh v. Ram Parkash (AIR 1984 Punjab & Haryana 95), Chaman Lal vs. Surinder Kumari (AIR 1983 Punjab and Haryana 323), Nanjedevaru v. H.V. Rama Rao (AIR 1959 Mysore 173) and Shakuntla Devi v. M/s. Mohanlal Amrit Raj Jain Market, Pali (AIR 1994 Rajasthan 259) in support of his submissions. According to Mr. Raman Pillai, all the substantial questions of law which have been formulated by this Court at the time of admission are to be answered in favour of the appellants. 7. Sri. K.C. John, Senior Advocate would refute all the submissions of Sri. T.R. Raman Pillai very strongly. According to Mr. Raman Pillai, all the substantial questions of law which have been formulated by this Court at the time of admission are to be answered in favour of the appellants. 7. Sri. K.C. John, Senior Advocate would refute all the submissions of Sri. T.R. Raman Pillai very strongly. Relying on the decisions of the Supreme Court in Sinha Ramanuja V. Ranga Ramanuja (AIR 1961 SC 1720), Ramappa v. Bojjappa (AIR 1963 SC 1633) and V. Ramachandra Ayyar v. Ramalingam Chettiar (AIR 1963 SC 302), Sri K.C. John invited my attention to the findings of the trial court and the lower appellate court entered by those courts in the context of Section 53A of the Transfer of Property Act. According to Mr. John, none of the questions of law formulated by this Court at the time of admission are actually involved in this Second Appeal. Mr. John submitted that all the four conditions laid down by the Supreme Court in Nathulal (supra) are in the conjunctive and if at least one of them is not satisfied, the party claiming the protection of Section 53A will not be entitled for such protection. The learned Senior Counsel also reminded me of the scope of Second Appeals under Section 100 of the Code of Civil Procedure. 8. I have considered the submissions made at the Bar by learned Senior Advocates on both sides. I have gone through the judgment of the trial court as well as the lower appellate court to the extent necessary for appreciating the submissions. I have made an overview of the evidence on record. The question to be decided is whether the finding concurrently entered by the trial court and the lower appellate court that the appellants are not entitled to the protection of Section 53A of the Transfer of Property Act requires to be interfered with in the context of the questions of law which were formulated by this Court while admitting this second appeal. 9. 9. Both the trial court and the lower appellate court have correctly found on the basis of binding judicial precedents governing the point that the following four are the conditions to be satisfied if protection of Section 53A is to be given to a party claiming such protection:- “(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 contract; and (4) that the transferee has performed or is willing to perform his part of the contract.” As regards condition No.1 which has been found concurrently by both the courts below to be satisfied, there has not been any serious dispute. Regarding condition No.2, the claim that the defendants came into possession in part performance of the agreement Ext.B1 was turned down and the finding is that the defendants who were already in possession continued in possession in part performance of the agreement, since this finding is based on evidence and has been concurrently entered by both the courts below, the same is not liable to be disturbed in Second Appeal. 10. The third condition is whether the transferees (the defendants) have done “some act in furtherance of the contract”. As far as this aspect is concerned, the defendants claim was that they have put up compound walls on the northern and eastern sides of the plaint schedule property and that they have renovated the buildings which were situated on the plaint schedule property. The trial court accepted the appellants case of having put up compound walls on the northern and eastern sides of the plaint scheduled property and found that such action amounts to doing certain things in furtherance of the contract. The lower appellate court interfered with this finding and found that putting up of compound walls will not amount to doing something “in furtherance of the contract”. The question before me is whether the above interference by the lower appellate court was justified. The lower appellate court interfered with this finding and found that putting up of compound walls will not amount to doing something “in furtherance of the contract”. The question before me is whether the above interference by the lower appellate court was justified. I am of the view that the expression “doing some act in furtherance of the contract” employed in Section 53A of the Transfer of Property Act means doing of some act to have progress in the matter of performance of the contract or doing of an act in discharge of the obligations cast on the parties under the contract. In the instant case, the evidence and the finding will show that the compound walls in question were put up by the defendants for the protection of the plaint schedule property which was subject-matter of Ext.B1 contract. Such an act cannot be styled as an act done in furtherance of the contract. The lower appellate court was therefore perfectly justified in interfering with the finding of the trial court in the context of condition No.3. 11. Condition No.4 is whether the transferees (the defendants) are willing to perform their part of the contract. On this aspect both the courts below have concurrently found against the appellants. When Ext.B1is carefully scanned, it will be seen that no obligations are cast upon the plaintiff to perform before the defendants discharge their obligation of paying the balance sale consideration to the plaintiff. Plaintiff’s obligation to execute the sale deed will arise only when the defendants pay the balance sale consideration. The argument of Sri. T.R. Raman Pillai that it is obvious from the very contention of the plaintiff that Ext.B1 agreement is a fraudulent one that the plaintiff is not willing to perform her part of the agreement and therefore even if the defendants had tendered the money, the plaintiff would not have executed the sale deed is certainly not without force. But then, going by the sequence in which the mutual obligations set out by Ext.B1 are to be performed, it is for the defendants to pay the money first. It has been concurrently found on evidence that the defendants neither did tender the money nor express their willingness to tender the money to the plaintiff. 12. The judgment of the Rajasthan High Court in Shakuntla Devi (supra) relied on by Sri. It has been concurrently found on evidence that the defendants neither did tender the money nor express their willingness to tender the money to the plaintiff. 12. The judgment of the Rajasthan High Court in Shakuntla Devi (supra) relied on by Sri. T.R. Raman Pillai lays down two points:- (1) As far as agreements for sale of immovable properties are concerned, the normal presumption is that time is not the essence of the contract. (2) The question whether the purchaser is ready to perform his part of the contract will arise only when the vendor has completed performance of his part of the agreement. I have already found that going by the express terms of Ext.B1, no obligations have been cast by that document upon the plaintiff before the balance sale consideration is paid to her. It is significant that not even by way of a counter-claim the defendants have sought for a decree for specific performance. The judgment in Chaman Lal (AIR 1983 Punjab and Haryana 323), which was also relied on by Sri. T.R. Raman Pillai, lays down that the question whether a suit for specific performance has been instituted by a party claiming protection of Section 53A of the Transfer of Property Act is immaterial while deciding the question whether he is entitled for the protection of the said Section. It is true that just because the defendants have not instituted a suit for specific performance, they will not become ineligible to have the protection of Section 53A, if otherwise they are eligible for such protection. Nevertheless, while the fourth ingredient laid down by the Supreme Court and as founded in the Statute itself, i.e. whether the defendants have performed or are ready and willing to perform their part of the contract, is examined, the question whether the defendants had any genuine reasons for refraining from instituting a suit for specific performance can assume some relevance. In the instant case, the appellants were not able to convince the two fact-finding courts below that they were ready and willing to perform their obligations under the agreement. What is laid down by the Mysore High Court in Nanjedevaru (AIR 1959 Mysore 173), which was another decision relied on by Sri. Raman Pillai, is that the willingness which is contemplated for the purpose of section 53A shall continue till the end of the proceedings. What is laid down by the Mysore High Court in Nanjedevaru (AIR 1959 Mysore 173), which was another decision relied on by Sri. Raman Pillai, is that the willingness which is contemplated for the purpose of section 53A shall continue till the end of the proceedings. It is true that in that case the High Court permitted the defendant claiming protection of Section 53A to remit the balance sale consideration even at the stage of Second Appeal. But the facts of the present case bear no comparison whatsoever to the case decided by the Mysore High Court. The decision of the Punjab and Haryana High Court in Teja Singh (supra) also cannot be of assistance to the appellants. That was a case where the transferee-defendant, irregularly though, remitted at least part of the sale consideration and on the facts of that case grant of the protection of Section 53A to the party in that case was justified. The Supreme Court has considered the various facets of the law pertaining to Section 53A of the Transfer of Property Act in Nathulal (AIR 1970 SC 546). The lower appellate court has analyzed that decision correctly and applied the principles laid down by the Supreme Court to the facts of the present case and decided the appeal correctly. 13. The foundation of substantial question of law No.(A) formulated in this case is the claim of the appellants that the advance payment made by them should be treated as performance of an act in furtherance of the contract. According to me, such a question of law can never be involved in this case because going by the pleadings and the evidence adduced by the defendants, they relied on the compound wall construction, the saw-mill expansion and the renovation of the residential building as the acts which they did in furtherance of the contract. Moreover, acts “in furtherance of the contract” envisaged by Section 53A are acts which were done by the concerned party either after he took possession of the property in part performance of the contract or after he continued in possession of the property in part performance of the contract. In the instant case, a reading of Ext.B1 shows that payment of the advance of Rs.2000/- was made by the defendants even before Ext.B1 was executed. In the instant case, a reading of Ext.B1 shows that payment of the advance of Rs.2000/- was made by the defendants even before Ext.B1 was executed. Obviously, the payment is made prior to the defendants commencing their continuance of possession in part performance of Ext.B1. I therefore answer question (A) against the appellants. 14. Question (B) is whether the construction of the compound walls will be an act in furtherance of the contract for the purposes of section 53A. I have already found that the construction of the compound walls which was for protection of the property will not be an act in furtherance of the contract. An act “in furtherance of contract” has to be an act to have progress in the matter of performance of contract. The above question therefore is answered against the appellants. Question (D) is whether the defendants can be called upon to perform their part of the contract of paying the balance sale consideration when the plaintiff has failed to perform her part of the contract. The finding is that going by the sequence set out in Ext.B1 it is for the defendants to perform the obligation of paying the consideration first. The finding in that regard is concurrently entered by both the courts below. Moreover, the obligation of a person claiming protection of Section 53A to establish that he is entitled for such protection will have to be discharged by him irrespective of the question whether the transferor was ready and willing to perform his obligations under the agreement. I therefore answer this question against the appellants. Question (E), though formulated on the basis of the judgment of the Supreme Court in Nathulal (supra), is not actually involved in the Second Appeal. Question (F) is also not actually involved in the Second Appeal, having regard to the discussions already made by me in the context of my discussions about the judgment of the Punjab and Haryana High Court and the Mysore High Court already made. 15. Question (C) formulated in this Second Appeal is certainly a substantial question of law. Question (F) is also not actually involved in the Second Appeal, having regard to the discussions already made by me in the context of my discussions about the judgment of the Punjab and Haryana High Court and the Mysore High Court already made. 15. Question (C) formulated in this Second Appeal is certainly a substantial question of law. However, since it has been very clearly found that ingredient No.3 of Section 53A is not satisfied in this case and also since the question as to whether the plaintiff has performed her part of the agreement is not relevant going by the sequence in which mutual obligations are set out to be performed under Ext.B1, I am inclined to leave this question unanswered. As already indicated, unless the party claiming the protection of Section 53A satisfies all the four ingredients, he will not be entitled for such protection. The result of the above discussion is that the Second Appeal fails and the same will stand dismissed, but, in the circumstances, without any order as to costs.