Sunday, 21 May 2017

When defendant is not entitled to get benefit of S 53A of Transfer of property Act?

 This Court in Shrimant Shamrao Suryavanshi and
another vs. Pralhad Bhairoba Suryavanshi by Lrs. and others
(2002) 3 SCC 676, while tracing the incorporation of Section 53A in
the TP Act, vide Act of 1929, acting on the recommendations of the
Special Committee on the issue, had ruled that mere expiration of
the period of limitation for bringing a suit for specific performance
would not debar a person in possession of an immovable property
by way of part performance from setting up a plea, as
contemplated therein in defence to protect his possession of the
property involved. It was however underlined that if the conditions
precedent, as enumerated, in Section 53A of the Act, are complied
with, the law of limitation would not come in the way of the said
person to avail the benefit of the protection to his possession as
extended thereby even though a suit for specific performance of a
contract by him had gone barred by limitation. Explicitly therefore,
though mere expiry of the period of limitation for a suit for specific
performance may not be a bar for a person in possession of an
immovable property in part performance of a contract for transfer
thereof for consideration to assert the shield of Section 53A of T.P.
Act, it is nevertheless imperative that to avail the benefit of such
protection, all the essential pre-requisites therefor would have to be
obligatorily complied with.
27. In A. Lewis and another vs. M.T. Ramamurthy and others
(2007) 14 SCC 87, it was propounded that the right to claim
protection under Section 53A of T.P. Act would not be available, if
the transferee remains passive without taking effective steps and
abstains from performing his part of the contract or conveying his
readiness and willingness to that effect.
28. Added to this, to reiterate, is the proviso to Section 53A of T.P.
Act which excludes from the rigour of the said provision a
transferee for consideration, who has no notice of the contract or of
the part performance thereof.
29. In the contextual facts, as obtained herein, the materials on
record do not unmistakably demonstrate that the original
defendant during his lifetime and on his demise, his heirs i.e. the
respondents had been always and ever ready and willing to perform
his/their part of the contract and that the appellant/plaintiff had
notice either of the agreement for sale or the fact that the original
defendant had been in occupation of the suit premises by way of
part performance of the contract. 

30. Apropos, Section 16 of the Act, 1963, specific performance of
a contract cannot be enforced in favour of a person who, inter alia,
fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contract
which are to be performed by him unless prevented or waived by the
other party thereto. As mentioned hereinabove, though there is an
averment in the written statement that before the death of the
predecessor-in-interest of the vendors of the appellant/plaintiff, the
original defendant had requested him to execute the sale deed and
after his demise, he made similar demands with them, evidence is
jejune to irrefutably establish the readiness and willingness of his,
during his lifetime and after his death, of the respondents, to
perform his/their part of the contract. It is also not the case of
either the original defendant or the present respondents that
his/their performance of the contract had been either prevented or
waived by either the vendors of the appellant/plaintiff or their
predecessor-in-interest at any point of time.
31. Noticeably, the sale deed executed in favour of the
appellant/plaintiff and proved in evidence has not been annulled as
on date and is thus valid and subsisting.
32. On an overall view of the matter, we are of the opinion that
the conclusions recorded by the courts below are based on an
erroneous understanding of the prescriptions of Sections 53A of T.P.
Act. The determinations made thus cannot be sustained.
33. On an appraisal of the evidence on record, on the touchstone
of the above legal propositions, we are thus of the considered view,
that though the LPA preferred by the appellant/plaintiff is not
maintainable in law, the respondents are not entitled to the benefit
of the protection of Section 53A of the T.P. Act read with Section 16
of the Act, 1963.
REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOS. 4311-4312 OF 2017

VASANTHI 
V
VENUGOPAL (D) THR. L.RS. 
Dated:MARCH 21, 2017.
Citation: AIR 2017 SC 1569


2. The impugnment herein is both of the judgment and order
dated 31.7.2006, rendered by the Single Judge of the High Court of
Judicature at Madras in A.S. No. 124 of 1990, preferred by the
appellant/plaintiff questioning the decision of the Subordinate
Judge, Cuddalore dated 28.4.1989 in O.S. No. 172 of 1987 as well
as the order dated 8.10.2007, passed by the Division Bench of the
said High Court rejecting the Letters Patent Appeal SR. No.16958 of
2007 preferred by her against the dismissal of Appeal A.S. No.124
of 1990, as not maintainable in the face of Section 100-A of the
Code of Civil Procedure, 1908 (as amended) (hereinafter referred to
as “CPC/Code”).
3. We have heard Mr. R. Basant, learned senior counsel for the
appellant/plaintiff and Ms. Malini Poduval, learned counsel for the
respondents.
4. As the rival assertions are integrated in the pleadings, a brief
reference thereto, is indispensable. The appellant/plaintiff instituted
O.S. No.172 of 1987 against the predecessor-in-interest of the
present respondents i.e. Venugopal (deceased) praying for a
declaration of her title in the suit property and also for recovery of
possession thereof. She claimed to have purchased the same vide
registered sale deed dated 26.6.1982 for the consideration price of
Rs.35,000/- from the sons of Ramnathan Chettiar, the original
owner, whereupon she was registered in the municipal records as
the title-holder thereof. She averred that at the time of sale, the
original defendant Venugopal was in possession of the property as a
tenant of her vendors on payment rent of Rs.100 per month. As the
defendant-Venugopal did neither accept her as his landlord nor
agreed to pay the enhanced rent of Rs. 150/-, as demanded, after
causing a notice to be served on him, the appellant/plaintiff filed an
application before the Rent Controller, Cuddalore being R.C. O.P.
No. 29 of 1986 for his eviction from the suit property.
5. In the said proceeding, the original defendant-Venugopal
denied the title of appellant/plaintiff in the suit property and
claimed to be in occupation thereof on the strength of an agreement
of sale executed between him and the original owner Ramnathan
Chettair. At this, the appellant/plaintiff instituted a suit claiming
the reliefs, as aforementioned, by pleading that neither she was
aware of any such agreement at the time of her purchase nor of any
part performance thereof as claimed and that even if any such
agreement did exist, the respondent/defendant was not entitled to
remain in possession of the suit property without enforcing the
same, as contemplated in law. She contended that she was a bona
fide purchaser for value without notice of such agreement and
maintained that the defendant was not entitled to avail the
protection under Section 53A of the Transfer of Property Act, 1882
(for short, hereinafter to be referred to as “T.P. Act”).
6. The original defendant-Venugopal in his written statement,
while reiterating that Ramnathan Chettiar was the owner of the suit
property, stoutly denied the transaction of sale by his sons in
favour of the plaintiff vide registered sale deed dated 26.6.1982. He
also asserted that the vendors of the appellant/plaintiff had no
subsisting title in the suit property to convey to her. He denied that
his possession of the suit property at the time of purported sale in
favour of appellant/plaintiff was that of a tenant under her vendors
and reiterated that pursuant to an agreement of sale dated
20.5.1975 with the original owner Ramnathan Chettiar, he had by
installments, in all paid Rs. 26,000/- by 12.4.1976 which formed a
major part of the consideration price. He stated further that at
the time of execution of the agreement of sale dated 20.5.1975, one
Purushothaman was in occupation of the suit property as a tenant
under the original owner, who following the compromise between
him (tenant) and the landlord vacated the suit premises, whereafter
possession thereof was delivered by the original owner to him on
1.7.1976 and that since then, he paid as well the property tax
therefor. However, though agreed upon and inspite of repeated
insistences, the original owner did not execute the sale deed and
after his death, his sons also avoided to do so. He claimed protection
of his possession in terms of Section 53A of T.P. Act and also allegedPage 5
5
that the plaintiff was not a bona fide purchaser without notice of the
agreement for sale between him and the original owner. He pleaded
as well that his right, secured under Section 53A of the T.P. Act, did
not stand effaced by any period of limitation, as time was not the
essence of contract for enforcing the specific performance thereof.
The parties though did exchange additional pleadings, it is
inessential to dilate thereon.
7. The Trial Court, on the basis of the pleadings, framed issues
and by its verdict dated 28.4.1989 dismissed the suit holding inter
alia that the possession of the original defendant of the suit property
was protected under Section 53A of the TP Act, as the ingredients
thereof stood complied with by him and that the appellant/plaintiff
was not entitled to the relief of declaration or possession, as sought
for.
8. Being aggrieved, the appellant/plaintiff preferred appeal being
A.S. No.124 of 1990 before the High Court of Judicature at Madras
and as hereinbefore mentioned, the same also met the same fate.
Her Letters Patent Appeal being L.P.A. SR No.16958 of 2007 was
dismissed as not maintainable being in the teeth of Section 100-A
of C.P.C.. Page 6
6
9. Mr. Basant has assiduously urged that as Section 100-A of
CPC is not attracted to the LPA filed by the appellant/plaintiff,
dismissal thereof, by reference to that provision, is patently
erroneous. Without prejudice to this plea, the learned senior
counsel has urged that as the suit property had been purchased by
the appellant/plaintiff by a registered sale deed dated 26.6.1982
from the owners thereof and as the transaction has remained
unimpeached, the agreement for sale dated 20.5.1975 between the
predecessor in-interest of the respondents and the original owner,
even if valid, is of no consequence and, therefore, both the forums
below, have grossly erred in law and on facts in dismissing her suit.
He further contended that not only the appellant/plaintiff is a
bona fide purchaser for value without any notice of the said
agreement, in the face of the failure of the respondents to prove the
readiness and willingness of their predecessor to perform his part of
the contract at all relevant times and also his omission to file a suit
for specific performance within the prescribed period of limitation,
no protection under Section 53A of T.P. Act was available to him
and presently to the respondents. Further as the
respondents/defendants have declined to admit thePage 7
7
appellant/plaintiff as their landlord, their occupation of the suit
premises is that of rank trespassers and as such, are liable to be
evicted. Mr. Basant placed reliance on the decision of this Court in
Kamla Devi vs. Kushal Kanwar and another (2006) 13SCC 295
and Mohd. Saud and another vs. Dr. (Maj.) Shaikh Mahfooz
and others (2010) 13 SCC 517.
10. Ms. Malini Poduval, learned counsel for the respondents, in
repudiation, has argued that the vendors of the appellant/plaintiff,
having categorically admitted the agreement for sale dated
20.5.1975 between their predecessor-in-interest Ramnathan
Chettiar and the original defendant Venugopal and his possession of
the suit property on the basis thereof, the finding that the benefit of
Section 53A of the TP Act is extendable to them, is unexceptionable
in the facts and circumstances of the case. Not only the original
defendant had been ever ready and willing to perform his part of
contract, the purported purchase by the appellant/plaintiff from the
heirs of Ramnathan Chettiar, being with the full knowledge of said
agreement and the possession of the original defendant, on the
basis thereof, the transaction of sale did neither convey any title to
her nor was it bona fide for all intents and purposes. According toPage 8
8
the learned counsel, the suit has been rightly dismissed by both the
forums and the dismissal of the LPA filed by the appellant/plaintiff
is also unassailable.
11. The competing propositions have been duly addressed. The
disputation pertaining to the maintainability of the LPA deserves
attention at the threshold. Section 100-A of the CPC was inserted
by the amendment Act 104 of 1976, which reads as under:
“100-A. No further appeal in certain cases –
Notwithstanding anything contained in any Letters
Patent for any High Court or in any other
instrument having the force of law in any other law
for the time being in force, where any appeal from
an appellate decree or order is heard and decided
by a Single Judge of a High Court, no further
appeal shall lie from the judgment, decision or
order of such Single Judge in such appeal or from
any decree passed in such appeal.”
12. Though this Section was amended by the Amendment Act 46
of 1999, reference thereto is avoided as the said amendment was
not given effect to.
13. This provision underwent another amendment by Amendment
Act 22 of 2002, to be refashioned as hereinbelow.Page 9
9
“100-A: No further appeal in certain cases –
Notwithstanding anything contained in any Letters
Patent for any High Court or in any instrument having
the force of law or in any other law for the time being in
force, where any appeal from an original or appellate
decree or order is heard and decided by a Single Judge
of a High Court, no further appeal shall lie from the
judgment and decree of such Single Judge.”
14. This amended provision enforced w.e.f. 1.7.2002 predicated
that notwithstanding anything contained in any Letters Patent for
any High Court or in any instrument having the force of law or in
any other law for the time being in force, where any appeal from an
original or appellate decree or order is heard and decided by a Single
Judge of a High Court, no further appeal would lie from the
judgment and decree of such Single Judge.
15. The purport and purview of this amended provision fell for the
scrutiny of this Court, amongst others in Kamla Devi (supra) and
Mohd. Saud (supra), wherein it was held in unambiguous terms
that only Letters Patent Appeal, filed prior to the coming into force
of the said amendment vide Act 22 of 2002 would be maintainable
and as a corollary, by virtue of the bar contained therein, Letters
Patent Appeal filed thereafter, would not be maintainable.
16. As the contextual facts in these decisions are inessential,Page 10
10
having regard to the hyaline legal postulations as above, elaboration
thereof is avoided. The dismissal of the LPA of the
appellant/plaintiff, in the face of the above judicially adumbrated
explication of Section 100-A of CPC by this Court, cannot thus be
faulted with.
17. Reverting to the availability of the protection of Section 53A of
TP Act to the original defendant and on his death, to the present
respondents, to reiterate, the evidence on record does proclaim that
the agreement for sale dated 20.5.1975 had indeed been executed
between the predecessors-in-interest of the vendors of the
appellant/plaintiff and the respondents herein, pursuant whereto,
an amount of Rs. 26,000/- in all had been paid by the proposed
purchaser and the possession of the suit property had been handed
over to him in consideration thereof. As a matter of fact, at the
time of execution of said agreement, the suit property was in
occupation of a tenant of the proposed seller i.e. the
predecessor-in-interest of the vendors of the appellant/plaintiff and
that following a compromise, the tenant delivered possession of the
suit property to the predecessor-in-interest of the present
respondents and since thereafter, they are in occupation thereof.Page 11
11
The evidence on record, however, does not in very clear terms
establish that the appellant/plaintiff had conscious notice or
knowledge of this agreement for sale at the time of her purchase.
Admittedly as well, neither the predecessor-in-interest of the
respondents nor they had taken recourse to law for specific
performance of the agreement. This assumes importance in view of
the averment made in the written statement that even prior to the
demise of the predecessor-in-interest of the vendors of the
appellant/plaintiff, he did not comply with the requests of the
original defendant to get the sale deed executed and his legal heirs,
after his demise, also adopted the same non-cooperative stance.
18. Section 53A of T.P. Act and Section 16 of the Specific Relief
Act, 1964 (for short, hereinafter to be referred to as “Act, 1963”),
being of significant relevance are extracted hereunder:
“53A. Part performance.—Where any person contracts
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,
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, Page 12
12
and the transferee has performed or is willing to
perform his part of the contract,
then, notwithstanding that 2[***] 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.” (Emphasis supplied)
“16. Personal bars to relief.—Specific performance
of a contract cannot be enforced in favour of a
person—
(a) who would not be entitled to recover compensation
for its breach; or
(b) who has become incapable of performing, or
violates any essential term of, the contract that on
his part remains to be performed, or acts in fraud of
the contract, or willfully acts at variance with, or in
subversion of, the relation intended to be
established by the contract; or
(c) who fails to aver and prove that he has performed
or has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than terms the performance
of which has been prevented or waived by the
defendant. Explanation.—For the purposes of clausePage 13
13
(c),—
(i) where a contract involves the payment of money, it
is not essential for the plaintiff to actually tender to
the defendant or to deposit in court any money
except when so directed by the court;
(ii) the plaintiff must aver performance of, or
readiness and willingness to perform, the contract
according to its true construction.”
(Emphasis supplied)
19. As would be patent from the above quotes, the protection of a
prospective purchaser/transferee of his possession of the property
involved, is available subject to the following prerequisites:
(a) There is a contract in writing by the transferor for
transfer for consideration of any immovable property
signed by him or on his behalf, from which the terms
necessary to constitute the transfer can be
ascertained with reasonable certainty;
(b) 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;
(c) The transferee has done some act in furtherancePage 14
14
of the contract and has performed or is willing to
perform his part of the contract.
20. In terms of this provision, if the above pre-conditions stand
complied with, the transferor or any person claiming under him
shall be debarred from enforcing against the transferee and
person(s) claiming under him, any right in respect of the property of
which the transferee has taken or continue in possession, other
than a right expressly provided by the terms of the contract,
notwithstanding the fact, that the transfer, as contemplated, had
not been completed in the manner prescribed therefor by the law for
the time being in force. Noticeably, an exception to this restraint is
carved out qua a transferee for consideration, who has no notice of
the contract or of the part performance thereof.
21. On a perusal of the evidence adduced, it transpires that the
sale deed dated 26.6.1982 had been proved on behalf of the
appellant/plaintiff. PW1 Subramanian, the husband of the
appellant/plaintiff in his testimony has stated that at the time of
purchase, when he enquired about the possession of the original
defendant, his vendors told him that he was in occupation of thePage 15
15
premises as a tenant and that after the purchase, as he (original
defendant) refused to pay the rent, the application before the Rent
Controller, Cuddalore was filed for his eviction therefrom and it was
in that proceeding, that the original defendant disclosed about the
agreement for sale, whereafter the suit had to be filed seeking
declaration of title and possession. This witness categorically
denied about his knowledge of such agreement for sale at the time
of purchase.
22. PW2 Deenadayalan, one of the sons of the original owner
Ramnathan Chettiar on oath affirmed the execution of the sale
deed dated 26.6.1982 in favour of the appellant/plaintiff for a
consideration of Rs. 35,000/-. Though, this witness admitted the
agreement for sale between the original defendant and his father,
he mentioned that on enquiry, his father had told him that the
agreement had lapsed as the purchase was not made within time.
This witness also categorically stated that he did not disclose
about the agreement for sale to the appellant/plaintiff and
instead had disclosed to her husband that the original defendant
was only a tenant in possession of the suit property.Page 16
16
23. As against this, the respondents, amongst others sought to
rely on the testimony of DW1 to the effect that he had always been
ready and willing to perform the contract and also in the reply to
the notice sent by the vendors of the appellant/plaintiff conveying
the cancellation of the agreement, he reiterated his readiness and
willingness to get the sale deed, on the basis of the agreement for
sale, executed.
24. The attendant facts and the evidence on record, though
demonstrate that an agreement for sale of the suit property had
been entered into on 20.5.1975 between the
predecessor-in-interest of the vendors of the appellant/plaintiff
and the original defendant and that an amount of Rs. 26,000/-
had been paid by the latter for which the possession of the suit
property had been delivered to him, to reiterate, adequate evidence
is not forthcoming to convincingly authenticate that the proposed
purchaser and thereafter his heirs i.e. the present respondents,
had always been ready and willing to perform his/their part of
the contract, which amongst others, is attested by his/their
omission to enforce the contract in law. His/their readiness and
willingness to perform his/their part of the contract is also not
pleaded in the written statement in clear and specific term as
required. Further the materials on record also do not testify in
unequivocal terms that at the time of purchase, the
appellant/plaintiff had the knowledge/information of such
agreement for sale or the part performance as claimed, so as to
repudiate her transaction to be neither bona fide nor one with
notice of such contract or the part performance thereof, as
comprehended in the proviso to Section 53A of the T.P. Act.
25. The fact that at the first instance, the appellant/plaintiff had
filed an application before the Rent Controller, Cuddalore for
eviction of the original defendant as a tenant, also attests her
ignorance at that point of time of the agreement for sale and his
occupation of the premises in part performance thereof.
26. This Court in Shrimant Shamrao Suryavanshi and
another vs. Pralhad Bhairoba Suryavanshi by Lrs. and others
(2002) 3 SCC 676, while tracing the incorporation of Section 53A in
the TP Act, vide Act of 1929, acting on the recommendations of the
Special Committee on the issue, had ruled that mere expiration of
the period of limitation for bringing a suit for specific performance
would not debar a person in possession of an immovable property
by way of part performance from setting up a plea, as
contemplated therein in defence to protect his possession of the
property involved. It was however underlined that if the conditions
precedent, as enumerated, in Section 53A of the Act, are complied
with, the law of limitation would not come in the way of the said
person to avail the benefit of the protection to his possession as
extended thereby even though a suit for specific performance of a
contract by him had gone barred by limitation. Explicitly therefore,
though mere expiry of the period of limitation for a suit for specific
performance may not be a bar for a person in possession of an
immovable property in part performance of a contract for transfer
thereof for consideration to assert the shield of Section 53A of T.P.
Act, it is nevertheless imperative that to avail the benefit of such
protection, all the essential pre-requisites therefor would have to be
obligatorily complied with.
27. In A. Lewis and another vs. M.T. Ramamurthy and others
(2007) 14 SCC 87, it was propounded that the right to claim
protection under Section 53A of T.P. Act would not be available, if
the transferee remains passive without taking effective steps and
abstains from performing his part of the contract or conveying his
readiness and willingness to that effect.
28. Added to this, to reiterate, is the proviso to Section 53A of T.P.
Act which excludes from the rigour of the said provision a
transferee for consideration, who has no notice of the contract or of
the part performance thereof.
29. In the contextual facts, as obtained herein, the materials on
record do not unmistakably demonstrate that the original
defendant during his lifetime and on his demise, his heirs i.e. the
respondents had been always and ever ready and willing to perform
his/their part of the contract and that the appellant/plaintiff had
notice either of the agreement for sale or the fact that the original
defendant had been in occupation of the suit premises by way of
part performance of the contract. 

30. Apropos, Section 16 of the Act, 1963, specific performance of
a contract cannot be enforced in favour of a person who, inter alia,
fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contract
which are to be performed by him unless prevented or waived by the
other party thereto. As mentioned hereinabove, though there is an
averment in the written statement that before the death of the
predecessor-in-interest of the vendors of the appellant/plaintiff, the
original defendant had requested him to execute the sale deed and
after his demise, he made similar demands with them, evidence is
jejune to irrefutably establish the readiness and willingness of his,
during his lifetime and after his death, of the respondents, to
perform his/their part of the contract. It is also not the case of
either the original defendant or the present respondents that
his/their performance of the contract had been either prevented or
waived by either the vendors of the appellant/plaintiff or their
predecessor-in-interest at any point of time.
31. Noticeably, the sale deed executed in favour of the
appellant/plaintiff and proved in evidence has not been annulled as
on date and is thus valid and subsisting.
32. On an overall view of the matter, we are of the opinion that
the conclusions recorded by the courts below are based on an
erroneous understanding of the prescriptions of Sections 53A of T.P.
Act. The determinations made thus cannot be sustained.
33. On an appraisal of the evidence on record, on the touchstone
of the above legal propositions, we are thus of the considered view,
that though the LPA preferred by the appellant/plaintiff is not
maintainable in law, the respondents are not entitled to the benefit
of the protection of Section 53A of the T.P. Act read with Section 16
of the Act, 1963.
34. In the result, civil appeal filed against the judgment and order
dated 31.7.2006, rendered in A.S. No. 124 of 1990 affirming the
judgment and order dated 28.4.1989 passed in O.S. No. 172 of
1987 is allowed and Civil Appeal preferred against the judgment
and order dated 8.10.2007 passed in LPA SR No. 16958 of 2007 is
dismissed. As a consequence, the suit filed by the appellant/plaintiff
is decreed, as prayed for. No costs.
............................................J.
 (DIPAK MISRA)

….........................................J.
 (AMITAVA ROY)
NEW DELHI;
MARCH 21, 2017.
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