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2025 DIGILAW 1308 (KER)

Kunjumol v. Ponnamma, W/o. Udayabhanu

2025-05-21

EASWARAN S.

body2025
JUDGMENT : The appeal is preferred by the plaintiff in O.S. No. 256 of 1996, on the files of the Munsiff Court, Punalur. 2. The brief facts necessary for disposal of the appeal are as follows: The plaintiff instituted O.S. No. 256 of 1996 seeking for specific performance of Ext. A1 agreement. As per Ext.A1 agreement, the plaintiff agreed to purchase the plaint schedule property for a sum of Rs.62,500/- on 28.03.1985. An advance amount of Rs.20,500/- was given as a part of initial sale consideration and thereafter, on 22.11.1985, the plaintiff paid another Rs.25,000/-. Consequent to the 2 nd tranche of sale consideration being paid, the plaintiff was put in possession of the plaint schedule property by the defendant. It is further alleged that on 10.02.1987, the plaintiff further paid a sum of Rs.14,900/- to the agent of defendant (PW3). Thereafter, the plaintiff started residing in the property and spent more than Rs.2,00,000/- for renovation. After receiving the consideration towards the property, the defendant refused to execute the sale deed. Later, the plaintiff inducted a tenant into the plaint schedule property and shifted her residence to Thiruvananthapuram. After repeated request, the defendant having refused to honour the terms and conditions of the agreement, the plaintiff caused to issue a lawyers notice on 19.06.1996 requiring the defendant to perform the contract. On 03.07.1996, a reply notice was issued by the defendant refusing to perform the contract and questioning the validity of Ext. A1 agreement. Accordingly, the plaintiff instituted the suit seeking specific performance. On behalf of the plaintiff, Exts. A1 to A9 documents were produced. Exts. X1 to X7(a) were the documents produced through a 3 rd party (Panchayath) to show that the plaintiff was in possession of the property. The defendants examined DW1 and DW2. 3. The Trial Court framed the following issues for consideration: “On the above pleadings, the following issues were settled for trial:- 1. Whether the suit is barred by limitation? 2. Whether the defendant is liable to execute sale deed with respect to the plaint item in favour of the plaintiff? 3. Whether the plaintiff violated the terms of agreement? 4. Reliefs and costs?” 4. On appreciation of evidence the Trial Court found that the plaintiff is entitled for a decree of specific performance. 2. Whether the defendant is liable to execute sale deed with respect to the plaint item in favour of the plaintiff? 3. Whether the plaintiff violated the terms of agreement? 4. Reliefs and costs?” 4. On appreciation of evidence the Trial Court found that the plaintiff is entitled for a decree of specific performance. While arriving at the aforesaid conclusion, the Trial Court negated the contention of the defendant that the suit was instituted beyond the period of limitation provided under Article 54 of the Limitation Act , 1963. The Trial Court found that since the plaintiff is already in possession of the property, her rights are protected under Section 53 (A) of the Transfer of Property Act and further going by the terms and conditions of the contract, the parties never intended the time to be the essence of the contract and thus, decreed the suit. The defendants preferred A.S. No. 96 of 1998 before the Sub Court, Kottarakkara. The First Appellate Court on appreciating the evidence and contentions raised on behalf of the parties concluded that the Trial Court misconstrued the agreement of sale between the parties. The First Appellate Court held that going by the terms of Ext.A1, the parties had fixed the time for performance of the contract as 25.03.1986 and therefore, the Suit preferred in the year 1996 was clearly beyond the period of limitation and accordingly, reversed the finding and dismissed the Suit. Aggrieved by the judgment of the First Appellate Court, the plaintiff is before this Court to the Second Appeal by arising following substantial questions of law:- “ (i) Whether in a case where the vendee who claims to be in possession of the property pursuant to the agreement, can he file a suit ignoring the period of limitation prescribed under Article 54 of the Limitation Act especially when the date is fixed for the performance of contract ? (ii) If no such date is fixed for performance, whether it would alter the position?” 5. Heard Sri. Nagaraj Narayanan, the learned counsel appearing for the appellant and Sri. K. Sasikumar, the learned counsel appearing for the respondent. 6. The learned counsel appearing for the appellant contended that since the parties never intended to treat the time as an essence of the contract, and thus the First Appellate Court erred egregiously in reversing the findings of the Trial Court and dismissing the suit. K. Sasikumar, the learned counsel appearing for the respondent. 6. The learned counsel appearing for the appellant contended that since the parties never intended to treat the time as an essence of the contract, and thus the First Appellate Court erred egregiously in reversing the findings of the Trial Court and dismissing the suit. According to the learned counsel, the First Appellate Court having concurred with the findings of the Trial Court as regards the factum of the plaintiff being in the possession of the plaint scheduled property could not have dismissed the suit. Once the plaintiff is in possession of the property, then the time cannot be treated as the essence of the contract and therefore the suit filed in the year 1996 cannot be said to be barred by limitation. In support of his contention, relied on the decision of this Court Lakshmi Amma v. Ayyappan [ 2003 (3) KLT 577 ] . 7. Per contra the learned counsel appearing for the defendant contented that a reading of Ext.A1 would clearly show that the parties intended to treat the time as an essence of contract. The learned counsel by referring to the specific clauses in Ext.A1 agreement would contend that the last date fixed for performance of the contract was 25.03.1986 and that the suit preferred after 10 years was clearly barred by limitation. 8. I have considered the rival submissions raised across the bar and have perused the records. 9. On consideration of the rival submissions raised across the bar, this court finds that the following substantial question of law arises for consideration in this appeal. “ Whether a party who has been put in possession of the property in part performance of an agreement of sale and whose possession is protected under Section 53 A of Transfer of Property Act 1882 is entitled to file a suit for specific performance ignoring the mandate of Article 54 of the Limitation Act 1963.”?. No doubt the evidence in this case points towards the defendant and in favour of the plaintiff and shows that the plaintiff was put in possession of the plaint schedule property in pursuance to Ext.A1 contract for the same. The right of a buyer who has been put in possession of the property in pursuance to the agreement of sale is protected under Section 53A of the Transfer of Property Act , 1882. The right of a buyer who has been put in possession of the property in pursuance to the agreement of sale is protected under Section 53A of the Transfer of Property Act , 1882. But can it be said that the right under Section 53 A of the Transfer of Property Act 1882 overrides the law of Limitation as provided under Article 54 of the Limitation Act , 1963. 10. In order to appreciate the above point, one needs to understand the nature of right under Section 53A of the T.P Act. Section 53 A of the Transfer of Property Act 1882 reads as under:- “[Section 53-A. Part performance.- 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 [xxxx] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor 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.]” The principles governing the applicability of the above provision is basically to grant a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee, if the proposed transferee satisfies other conditions in Section 53 A. That protection is available as a shield only against the transferor. The proposed vendor would be dis-entitled from disturbing the possession of the proposed transferees who are put in possession pursuant to such agreement. The proposed vendor would be dis-entitled from disturbing the possession of the proposed transferees who are put in possession pursuant to such agreement. However, that said, the provision has no application when the ownership of the proposed property is concerned. The proposed transferor remains the full owner of the lands till they are legally conveyed by a sale deed to the proposed transferee. It follows that the equitable right under Section 53A cannot be claimed for restraining the sale of suit property, but can be sought for seeking protection against dispossession. 11. The Privy Council in Mian Pir Bux Vs Sardar Mahomed [ AIR 1934 PC 235] held that the principles governing Section 53A is the partial importation of the English equitable doctrine of part performance. But unlike the English Law, the Indian law recognizes a right which existed before the enactment. Section 53 A creates a statutory right, provided the conditions are satisfied. 12. Having stated the principles governing the provision, this court needs to consider the impact of Article 54 of the Limitation Act 1963. Article 54 reads as under:- Description of suit Period of limitation Time from which period begins to run 54 For specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. A reading of Article 54 reveals that it contains two parts. ie: three years from the date fixed for performance or if no date is fixed, from the date of notice of refusal by the plaintiff. It is trite law that limitation does not extinguish the right but only bars the remedy. That be so, it has to be held that even if the appellant is protected under Section 53 A of the Transfer of Property Act 1882, even then, for enforcing the contract of sale, the suit will have to be filed in conformity with Article 54 of the Limitation Act 1963. Therefore it cannot be said that once a right is created under Section 53 A of the Transfer of Property Act 1882, the said right overrides the law of limitation. 13. The Hon'ble Supreme Court, in Shrimant Shamrao Suryavanshi and Ors. v. Pralhad Bhairoba Suryavanshi (Dead) By Lrs. And others [ 2002 (3) SCC 676 ] , held that the defence available under Section 53A is not barred by Limitation. 13. The Hon'ble Supreme Court, in Shrimant Shamrao Suryavanshi and Ors. v. Pralhad Bhairoba Suryavanshi (Dead) By Lrs. And others [ 2002 (3) SCC 676 ] , held that the defence available under Section 53A is not barred by Limitation. However, the said decision cannot be said to be laying down an absolute proposition that since the defence under Section 53A is not barred by limitation, for enforcing the right under Section 53A, law of limitation is not applicable. 14. In a given case, where the agreement of sale discloses, that the parties intended time as an essence of the contract, it will be far fetched to hold that the benefit under Section 53A of the Transfer of Property Act , 1882 will translate into a right and the said right will not be affected by the statutory prescription of limitation under Article 54 of the Limitation Act . 15. In Rathnavathi and Anr. vs Kavita Ganashamdas [2015 (5) SCC 223], the Hon'ble Supreme Court held that the period of limitation prescribed under Article 54 would start to run from the date of refusal to perform the contract of sale. 16. In the present case, applying the aforesaid principles, can it be safely concluded that the parties at the first instance never intended to treat time as an essence of the contract. A reading of the agreement of sale discloses that the last date of performance was 25.03.1986. The parties were aware that before 25.03.1986, if the vendor/defendant refused to perform the contract, the remedy of the plaintiff is to approach the Court by depositing the balance sale consideration and seeking the direction to the vendor to execute the sale deed. Even assuming for a moment that the parties never intended to treat time as an essence of the contract, from the available evidence it is far fetched to hold that the plaintiff was entitled to wait for more than 11 years for preferring the suit for specific performance. The evidence available in this case would clearly show that the plaintiff was aware of the refusal on the part of the defendants to perform the contract at the earliest. Therefore, she need not have waited till 1996 to issue the lawyers notice requiring the defendant to perform the contract. The evidence available in this case would clearly show that the plaintiff was aware of the refusal on the part of the defendants to perform the contract at the earliest. Therefore, she need not have waited till 1996 to issue the lawyers notice requiring the defendant to perform the contract. Therefore, it is evident that the trial court clearly erred in holding that the cause of action for preferring the suit arose only on the reply notice being issued by the defendant. Resultantly, this Court finds that the finding rendered by the First Appellate Court is perfectly justified and the Trial Court clearly erred in decreeing the suit. The result of the discussion leads to an irresistible conclusion that the question of law raised by the appellant has to be answered against her. Accordingly, answering the question of law raised by holding that merely because the buyer has been put in possession of the property in pursuance to an agreement of sale, will not enable him/her to tide over the period of limitation under Article 54 of the Limitation Act , the appeal is dismissed. Cost made easy.