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2011 DIGILAW 2855 (MAD)

Vairathammal v. Devaki Ramadass

2011-06-17

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The defendants, who lost in both the Courts below are the appellants. 2. The respondents/plaintiffs filed a suit for recovery of possession and mesne profits. 3. The case of the respondents/plaintiffs was that the suit property belonged to one Govindasamy Naidu and the plaintiffs/respondents are his legal-heirs and the husband of the 1st appellant Samidurai took the property on lease in the year 1963 for running a tea-stall and after his death, in the year 1970 the 1st appellant/1st defendant continued to be the lessee and was running the shop and on 24.08.1973, an agreement of sale was entered into between the respondents/plaintiffs and the appellants/defendants whereby the appellants agreed to purchase the property at the rate of Rs.1,000/- by paying an advance of Rs.2,000/- and thereafter, the appellants/defendants did not take any steps to get the sale deed executed nor paid the balance amount and the appellants/defendants were not ready and willing to perform their part of contract and as the period expired, the agreement of sale became invalid and therefore, the respondents/plaintiffs issued notice cancelling the lease and directed the defendants/appellants to deliver the vacant possession and to pay the future rents and that was replied by the 1st defendant stating that she is in possession of the property in part performance of agreement of sale and she is entitled to be in possession of the property and she cannot be evicted. 4. After issuing rejoinder of notice, the suit was filed for the reliefs as prayed for. 5. 4. After issuing rejoinder of notice, the suit was filed for the reliefs as prayed for. 5. The appellants/defendants contested the suit stating that they are in possession of the property for the past 50 years and they are not aware whether any lease deed was executed by the husband of the 1st appellant and as per the agreement of sale, dated 24.08.1973, they are in possession of the property and they paid an advance of Rs.2,000/- and Rs.500/- will be adjusted taking into consideration, the building constructed by them and the balance amount has to be paid after measuring the property and the respondents/plaintiffs have not come forward to measure the property and as they were minors, the sale cannot be completed and after the agreement of sale, a sum of Rs.350/- was paid and that was endorsed in the agreement and even thereafter, two or three occasions, the appellants/defendants paid a sum of Rs.1,000/-, but did not get any voucher and as the appellants are in possession of the property in part performance of the agreement of sale, the suit for recovery of possession is not maintainable. 6. Both the Courts below held that the appellants/defendants are not in possession of the property in pursuance of the agreement of sale and they were in possession of the property as a lessee and they have not done anything in furtherance of the agreement of sale, after the agreement of sale was executed and the lease deed was duly cancelled by issuing of notice and they are not entitled to be in possession and decreed as prayed for. Aggrieved by the same, this second appeal is filed. 7. At the time of admitting the second appeal, the following substantial questions of law were framed:- 01. Whether the lower appellate court erred in law in holding that the possession of the 1st defendant is not protected under section 53-A of the Transfer of Property Act despite the 1st defendant have paid the balance of sale consideration on several dates in furtherance of the sale agreement, dated 24.08.73? 02. Whether the lower appellate Court erred in law in holding that the lease arrangement is not terminated by the subsequent sale agreement in spite of a specific recital in the sale agreement that the plaintiffs have to deduct Rs.500/- from the sale consideration for surrender of leasehold rights? 8. 02. Whether the lower appellate Court erred in law in holding that the lease arrangement is not terminated by the subsequent sale agreement in spite of a specific recital in the sale agreement that the plaintiffs have to deduct Rs.500/- from the sale consideration for surrender of leasehold rights? 8. It is submitted by the learned counsel appearing for the appellants, Mr.A.Muthukumar that both the Courts below failed to appreciate the law laid down by the Hon'ble Supreme Court in respect of part of performance of contract and failed to appreciate the provisions of Section 53-A of the Transfer of Property Act and the case of the appellants is that they are in possession of the property in part performance of agreement of sale and when they are in possession in part of the agreement of sale, even though they failed to get the sale deed executed, as per the agreement of sale and even though, the right is lost by virtue of the provisions of Limitation Act, they are entitled to be in possession of the property and without appreciating that, both the Courts below decreed the suit. 9. In support of his contention, the learned counsel appearing or the appellants relied upon the judgment reported in 2002-3-L.W.211, in the case of Shrimant Shamrao Suryavanshi and anr. vs. Pralhad Bhairobe Suryavanshi (D) Lrs and others. 10. On the other hand, the learned counsel appearing for the 6th respondent, Mr.B.Nedunchezhiyan, submitted that both the Courts below after relying upon the judgments of the Hon'ble Supreme Court reported in AIR 1982 SC 989 in the case of Sardar Govindrao Mahadik and another vs. Devi Sahai and others, and the judgment reported in TNLJ 1994 page 20, in the case of R.Ranganayaki Ammal and Namagiri Venkatarman held that the appellants have not proved that they have done anything in part performance of contract and they were in possession of the property as a lessee, even prior to the agreement of sale and they continued to be in possession and no act has been done by them in pursuance to the agreement of sale and therefore, they are not entitled to the protection under section 53-A of the Transfer of Property Act. The learned counsel appearing for the 6th respondent, therefore, submitted that both the Courts below concurrently held that the appellants are not entitled to protect of Section 53-A of the Act and the concurrent findings of the Courts below need not be interfered with in the second appeal. 11. Heard both sides. 12. In this second appeal, we will have to to see whether the appellants are entitled to protection under section 53-A of the Transfer of Property Act. Though, the appellants denied the factum of tenancy entered into by the husband of the 1st appellant, in the written statement as well as in the notice, they admitted that they are in possession of the property, even prior to the agreement of same. But they have not stated how they came into possession of the property prior to the agreement of sale. According to the respondents, the husband of the 1st appellant was let into possession under Lease agreement, dated 04.07.1963. The Rental Deed executed by the husband of the 1st appellant was marked as Ex.B2. Therefore, having regard to the fact that the appellants admitted their possession, even prior to the agreement of sale and Ex.A2 was produced by the respondents to prove the lease deed executed by the husband of the 1st appellant, it is made clear that the property was let out to the 1st appellant's husband in the year 1963 and he was in possession of the property as a lessee and after his death, the 1st appellant and others continued to be in possession of the property as a lessee. 13. Admittedly, an agreement of sale was entered into between the parties on 24.8.1973 (Ex.B1). In order to claim the protection under section 53-A of the Transfer of Property Act, the following conditions are to be fulfilled as laid down by the Hon'ble Supreme Court, in the judgment reported in 2002-3- LW 211, in the case of Shrimant Shamrao Suryavanshi & another vs. Pralhad Bhairobe Suryavanshi (d) by Lrs & others:- “01. There must be a contract to transfer for consideration any immovable property. 2. The contract must be in writing, signed by the transferor, or by someone on his behalf. 03. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. 04. There must be a contract to transfer for consideration any immovable property. 2. The contract must be in writing, signed by the transferor, or by someone on his behalf. 03. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. 04. The transferee must in part performance of the contract take possession of the property, or of any part thereof. 05. The transferee must have done some act in furtherance of the contract, and 06. The transferee must have performed or be willing to perform his apart of the contract. 17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract was barred by limitation.” 14. In this case, there is no dispute regarding the first three conditions and we will have to see whether condition Nos.4 and 5 were fulfilled. 15. As per the condition No.4, the transferee, viz., the appellants must in part performance of the contract take possession of the property, or of any part thereof. 16. A perusal of the agreement of sale, (Ex.B1) would make it clear that possession was not handed over to the appellants and no recitals to that effect were mentioned in Ex.B1. 17. Further, it is admitted by the appellants that they are in possession of the property for the past 50 years and it is the case of the respondents that the 1st appellant's husband got the property on lease in the year 1963 as evident by Ex.A2 and he continued to be in possession and after his death, his wife 1st appellant continued to be in possession of the property. Therefore, the appellants were in possession of the property even prior to the agreement of sale and they continued to be in possession of the property even after the agreement of sale. Therefore, the appellants have not taken the possession of the property in part performance of the contract of sale. 18. Further, as per condition No.5, the transferee/appellant must have done some act in furtherance of the contract. Therefore, the appellants have not taken the possession of the property in part performance of the contract of sale. 18. Further, as per condition No.5, the transferee/appellant must have done some act in furtherance of the contract. In this case, except the payment of Rs.350/- towards sale consideration, nothing has been done by the appellants in furtherance of the contract. Though, the appellants have pleaded that they have paid Rs.1,000/- on three occasions, no evidence was let in to prove the same. Further, no attempt was made by the appellants to call the respondents to measure the property as per the agreement of sale and except the payment of Rs.2,000/- and the another payment of Rs.350/-, no act has been done by the appellants in furtherance of the contract and they have not proved that they have performed or willing to perform their part of contract, as per the condition No.6. Therefore, the appellants have not fulfilled the condition Nos.4 to 6 and as per the judgments referred to above, in order to get protection under section 53-A of the Transfer of Property Act all the conditions must be fulfilled. 19. Further, in the judgment reported in AIR 1982(SC) 989, in the case of Sardar Govindrao Mahadik and another vs. Devi Sahai and others, it has held as follows:- “(B) Transfer of Property Act (4 of 1882), S.53-A - Doctrine of part-performance – Applicability - Conditions precedent for - Acts anterior to contract or merely incidental to contract - No evidence of part-performance. First Appeal No.14 of 1959, d/- 5-3-1964 (Madh. Pra.), Reversed. To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Those are pre-requisites to invoke the equitable doctrine of part-performance. After establishing the aforementioned circumstances, it must be further shown that a transferee had in part performance of the contract either 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. After establishing the aforementioned circumstances, it must be further shown that a transferee had in part performance of the contract either 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. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. Anything done in furtherance of the contract postulates the pre-existing contract and the acts done in furtherance thereof. Therefore, the acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance.” 20. Further in the judgment reported in TLNJ 1972 Page 140, in the case of Rathinam Pillai vs. Narayana Vanniar & another, this Court held as follows:- “Negativing the contention that no notice to terminate the lease is necessary when the plaintiff's tittle is denied, it was held, it is true that there can be a forfeiture of the leasehold right by the lessee if the lessee renounces his character as such by setting up title in third parties or by claiming title in himself. But even in such a case the lessor has to give notice in writing to the lessee of his intention to determine the lease as a result of the said forfeiture and unless it is done, the lease cannot be said to have been determined under S.111. Therefore, as per the above judgments, a person who was in possession of the property earlier to the agreement of sale, cannot claim to be in possession of the property in part performance of contract of sale. 21. Hence, both the Courts below have rightly held that the appellants are not in possession of the property in part of contract of sale and they have not fulfilled the conditions enumerated under section 53-A of the Transfer of Property Act and rightly decreed the suit and the substantial question of law No.1 is answered against the appellants. 22. In so far as the 2nd substantial question of law is concerned, in my opinion, it is not a substantial question of law, as per the judgment reported in 2009(1) L.W.1 in the case of State Bank of India and others vs. S.N.Goyal. 23. 22. In so far as the 2nd substantial question of law is concerned, in my opinion, it is not a substantial question of law, as per the judgment reported in 2009(1) L.W.1 in the case of State Bank of India and others vs. S.N.Goyal. 23. Further, as per the agreement of sale, a sum of Rs.500/- was adjusted not as a consideration for surrendering the leasehold right. Therefore, it cannot be contended that by adjusting Rs.500/- towards sale consideration, the leasehold deed was surrendered and the appellants are put in possession of the property in part performance of contract, the 2nd substantial question of law is also answered against the appellants. 24. In the result, the the judgments and decrees of the courts below are confirmed and accordingly, this second is dismissed. No costs.