How to ascertain limitation in the suit for rescission of contract?

  This takes me to the issue regarding limitation. It is quite clear that by a specific prayer the appellant was seeking to rescind the agreement and consequently, the suit would be governed by article 59 from the Schedule to the Limitation Act, 1963 which prescribes for a period of limitation of three years from the date when facts which entitle the appellant to have the contract set aside or rescinded became known to him. Admittedly, apart from the dispute regarding payment of the balance amount of consideration and keeping aside the issue regarding the readiness and willingness, the appellant had served the respondent first notice on 10.07.1979 (Exh. 53) and the second notice on 10.06.1985 (Exh. 34). Attempt is being made to demonstrate on behalf of the appellant that since the respondent did not give response to the latter notice (Exh. 34), the period of limitation would begin to run from that day. The suit was filed within three years, on 04.07.1985, from the date of this notice and therefore it was within limitation. {para 22}

23. As has been rightly pointed out by the lower appellate court it is the first date when the plaintiff became entitled to rescind the contract would be the date from which the period of three years is to be counted. Going by the recitals in the notice dated 10.06.1979 (Exh. 53) the appellant had specifically put the respondent to notice that unless the balance amount of consideration of Rs. 5500/- was paid within a month and the sale-deed was not got registered, the transaction was to come to an end and the earnest money would stand forfeited. If such was the scenario, at the most one month after this notice when the respondent had not obliged by paying the balance amount of consideration and had not taken steps to get the sale deed registered, the appellant ought to have filed the suit seeking rescission of the contract within three years after lapse of one month after the notice dated 10.07.1979 and to be precise latest by 09.08.1982. The suit was filed on 04.07.1985 and was clearly barred by limitation. The observation and the conclusions of the lower appellate court in this regard are certainly legal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 247 OF 1992

WITH CA/11710/2016

Kishan s/o Gajananrao Ghorpade Vs Shivaji s/o Sarjerao Thombre,

CORAM : MANGESH S. PATIL, J.

PRONOUNCED ON: 21.03.2022.

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Can a person recover possession of immovable property based on the unregistered agreement of sale?

 Though the MoU does not record the amount of consideration that has  been paid, in the written submissions, the petitioner has stated that he has paid Rs.9,50,000/- without recoding the manner by which the amount has been paid. The petitioner also cannot rely on the Section 53A of the Transfer of Property Act in the absence of any documents or semblance of proof showing that the petitioner was in possession. {Para 31}

32. It is well settled that in order to give benefits of Section 53A of the Transfer of Property Act, the document relied upon must be a registered document. Any unregistered document cannot be looked into by the court and cannot be relied upon on or taken into evidence in view of Section 17(1A) read with Section 49 of the Registration Act. Thus, benefit of Section 53A could have been given to the respondent, if and only if the alleged Agreement to Sell cum receipt satisfied the provisions of Section 17(1) A of the Registration Act (Refer Arun Kumar Tandon v. Akash Telecom Pvt. Ltd. & Anr. MANU/DE/0545/2010).

33. Even assuming that the MoU should be read as an Agreement to Sell and the petitioner has been in possession for which there is no evidence at all, this Court in Earthtech Enterprises Ltd. v. Kuljit Singh Butalia, 199 (2013) DLT 194 has observed as under:-

"12. A bare perusal of the aforesaid provision makes it clear that a person can protect his possession under Section 53-A of the Transfer of Property Act on the plea o part performance only if it is armed with a registered document. Even on the basis of a written agreement he cannot protect his possession. In this case, plea of existing oral agreement has been set. In any event, in this case, appellant cannot protect his possession under the shield of Section 53-A of the Transfer of Property Act. Even otherwise, mere Agreement to Sell of an immovable property, even if the plea of oral agreement is accepted for the sake of argument, would not create any right in favour of the tenant-appellant to hold over the possession of the suit property."

34. No fault can be found with the stand of the State that the petitioner has failed to produce any document which can establish possession. Had the petitioner been in lawful possession, he definitely would have filed a suit under Section 6 of the Specific Relief Act within six months of being dispossessed and the date of dispossession which admittedly is 16.11.2019. Thus has not been done. The complaints given by the petitioner to the Police for conducting inquiry with subsequent writ petition is ,therefore, completely unfounded. The present petition looks like an attempt by the petitioner to get the possession of the property and to get over the limitation for filing the suit which disables him to file a suit for specific performance for the MoU dated 17.10.2003.

IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE MATTER OF: 

 W.P.(CRL) 1006/2020 & CRL.M.A. 8649/2020

 JOGINDER TULI Vs STATE NCT OF DELHI & ORS. 

CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD, J.

 Date of decision: 17th January, 2022

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Supreme Court: Person in possession of the immovable property under an agreement of lease is entitled to get the benefit of the doctrine of part performance

On the other hand in the case of Maneklal

Mansukhbhai10 relied on by learned senior counsel for the respondents it

is clearly held by this Court that defence under Section 53A of the

Transfer of Property Act, 1882 is available to a person who has

agreement of lease in his favour though no lease has been executed

and registered. Similar proposition is also approved in the judgment of

this Court in the case of Hamzabi11 wherein this Court has held that

Section 53A of the Transfer of Property Act, 1882 protects the

possession of persons who have acted on a contract of sale but in

whose favour no valid sale deed is executed or registered. As it is clear

that respondents were put in possession and the Panchayat has acted

upon their proposal for grant of lease said case law supports the case of

the respondents.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9049-9053 OF 2011

Union of India Vs  M/s. K.C. Sharma & Co. 

R. Subhash Reddy, J.

Dated:August 14, 2020.

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Whether a party can take benefit of the doctrine of part performance if the agreement of sell and possession receipt was not registered?

Section 53A of Transfer of Property Act was amended on 24-09-2001 and thereby a further condition has been imposed that, such agreement to sell should be a registered one. The documents in present case are admittedly on insufficiently stamped paper and the document is not registered.  By way of the said amendment with effect from 24-09-2001 words "the contract, though required to be registered, has not been registered, or," have been omitted. The effect of the omission of these words and at the same time making amendment in Section 17 of the Indian Registration Act on the same day regarding compulsory registration of the agreement to sell where it is coupled with possession; the intention of the legislature was that, unless the agreement to sell wherein possession has been handed over is registered then only the protection under Section 53A of the Transfer of Property Act would be available to the person who intends to invoke the same. In this case, both these documents i.e. Exhibits 30 and 31 have come into existence after the said amendment to the Transfer of Property Act Section 53A and Section 17 of the Indian Registration Act had come into force. Therefore, when by the said separate document, on the same day possession is stated to have been handed over to the defendant, it was mandatory to register the said document Ex. 30 and 31. As aforesaid, no explanation has been given by the defendant, as to why it was not registered also and why two separate documents were required to be executed. Therefore, the main condition of the said protection to be available under Section 53A of the Transfer of Property Act, has not been fulfilled by the defendant. Therefore, from any angle if we consider the facts of the case then though there is concurrent finding of both the Courts below, yet it can be said that, the defendant had failed to prove that, his possession over the suit land can be protected under Section 53A of the transfer of Property Act. He cannot be allowed to remain in possession of the suit land without paying balance amount of consideration and without getting sale-deed executed in his favour. No doubt, a person can protect his possession over a land by taking defence under Section 53 A of Transfer of Property Act, even though his suit for specific performance of contract would have been barred by limitation; but in this case one of the main ingredient of seeking such protection i.e. compulsory registration of the document is not fulfilled.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 145 of 2016

Decided On: 10.10.2019

Ghanshyam Deoram Gaikwad Vs  Samshon John Gaikwad and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020(2) MHLJ 451

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Whether defendant can take benefit of part performance as per S 53-A of TP Act even if his suit for specific performance of contract has become time barred ?

Shri Kasliwal has one more contention to be advanced. He tried to distinguish a case where the suit of the transferee in possession has time barred but no proceedings have been filed by him and where transferee in possession has filed a suit and it has been dismissed on the ground of limitation. I am afraid, there cannot be any distinction drawn between the two cases. The protection under the doctrine of part performance would be available in both the cases. Section 53-A does not confer any right upon a person in possession. What it purports to do is to prevent a plaintiff from recovering possession of the property already transferred to the defendant. It imposes upon the plaintiff a disability, the disability being of enforcing against the transferee in possession any right which a plaintiff may have in respect of the property. Even if the suit for specific performance by the defendant is barred by lapse of time, defendant is nevertheless entitled to resist the plaintiffs suit for ejectment and to defend his own possession. Further it has been made clear that what section 53-A seeks to do is to protect the possession of the defendant even where the defendant's right to obtain specific performance of the agreement has been barred by time. No such distinction can be made between a case where the purchaser has filed suit for specific performance and has failed on the point of limitation and a case where purchaser has not filed any case but. the suit has become time barred.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 5 of 1984

Decided On: 29.01.2000

Balasaheb Manikrao Deshmukh  Vs. Rama Lingoji Warthi

Hon'ble Judges/Coram:

A.S. Bagga, J.

Citation: AIR 2000 Bom 337

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When limitation to file suit for cancellation of sale deed will not commence from the date of registration of sale deed?

 In fact, not having made any inquiry from the plaintiff about the capacity of title under which he continues to be in possession, the present case would be squarely covered by Explanation II to Section 3 of Transfer of Property Act. There is nothing on record to indicate that prior to the issuance of termination notice dated 24/05/1978, defendant No. 1 had informed the plaintiff about execution of the registered sale deed dated 23/06/1975. It is not even the case of the defendant No. 1 that the plaintiff had knowledge of the transaction entered into between Krishna and the plaintiff. It is for this reason that Explanation II to Section 3 assumes relevance. It states that actual possession is notice of the title of the person in possession. The plaintiff entered the property in his capacity as a tenant but subsequently by an agreement of sale agreed to purchase the suit property. As indicated earlier, the time for payment of balance consideration under the agreement was upto 1978. There is nothing on record to indicate nor is it the case of defendant No. 1 that either the original owner or defendant No. 2 cancelled the agreement of sale on which basis plaintiff claims. Even the defendant No. 2 executed sale deed in plaintiffs favour in 1978.

33. As rightly pointed out by learned Counsel for the plaintiff, defendant No. 1 in his evidence has admitted that on 29/07/1975, the original owner Krishna made an application against defendant No. 1 to the Collector, Kolhapur alleging that consideration mentioned in sale deed was not paid to Krishna by the defendant. All these aspects would support to the plaintiff's case that the sale deed was executed between Krishna and defendant No. 1 only to defeat the rights accrued to the plaintiff under the agreement of sale dated 04/07/1973. The Appellate Court has also dealt with the matter in the context of Section 53A of the Transfer of Property Act in as much as the plaintiff was already in possession of the properties on the date of execution of agreement of sale. Mere issuance of a public notice is not sufficient to contend that the plaintiff had knowledge of the transaction. The date of registration of sale deed in defendant No. 1's favour would not be the starting point of limitation. The contention of defendant No. 1 that he is a bonafide purchaser for value without notice deserves to be rejected. In the facts of the present case, defendant No. 1 should have made inquiry as to interest or title of plaintiff who was in actual possession of the suit property.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 12 of 1994

Decided On: 11.07.2019

 Baburao Naroba Bargale Vs. Surendra Baburao Shetty

Hon'ble Judges/Coram:

M.S. Karnik, J.

Citation: 2020(1) MHLJ 596

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Whether it can be presumed that registered power of attorney was duly stamped?

 Reverting to the registered General Power of Attorney, the same has been executed by the original Defendant No. 1 -predecessor in title of Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4), in favour of Respondent No. 3 (Defendant No. 2). Being a registered document, in our opinion, the Trial Court was justified in observing that there is a legal, rebuttable presumption that the same has been duly stamped. As observed by the Trial Court, the question as to whether the document is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18377 of 2017

Decided On: 04.07.2018

Ameer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: 2019(3) MHLJ 550

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Whether mortgagee can take benefit of part performance if there is sale agreement between him and mortgagor?

 The plaintiffs’ suit for redemption of
mortgage of four properties was initially decreed
by the learned trial Court. In appeal, the decree
was partially reversed insofar as the two items of
properties are concerned. The said two items are
properties were the subject matter of sale
agreements between the mortgagor and the mortgagee
pursuant whereto on full payment of the agreed
amount by the mortgagee to the mortgagor the
mortgagee was allowed to continue to remain in
possession under the sale agreements. It is in

these circumstances that the First Appellate Court
and the High Court took the view that the
plaintiffs’ suit insofar as the redemption of the
aforesaid two items of properties are concerned
could not have been decreed in view of the
provision of Section 53A of the Transfer of
Property Act, 1882.

4. The plaintiffs’ suit for redemption in
the face of the terms of the sale agreements
insofar as the two items of properties are
concerned, could not have been decreed in view of
Section 53A of the Transfer of Property Act, 1882.
The plaintiffs could have but did not not bring an
action for declaration of title and recovery of
possession on the basis of title. In such
circumstances “the fault” on the part of the
defendants to bring a suit for specific
performance of the sale agreements to enable the
transaction of agreement to sell to fructify into
a valid sale cannot defeat their right under

Section 53A of the Transfer of Property Act, 1882.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).566 OF 2016

RAMESH CHAND  Vs  NAND LAL

Dated:APRIL 24, 2018.

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Whether court can grant relief to a party if he has not pleaded for that relief?

 The last contention of the learned Counsel for the Appellant is in relation to application of Section 53A of the T.P. Act. It is well settled that the Defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first Defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first Defendant/Appellant to claim the benefit available Under Section 53A of the T.P. Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

 Shyam Narayan Prasad  Vs.  Krishna Prasad and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: 2019(3) MHLJ 17

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Whether party can be granted part performance U/S 53A of Transfer of Property Act even if he is not granted specific performance of contract?

In the present case, in the suit for specific performance filed by the plaintiff there is no counter claim by the defendants seeking possession. Neither is there any separate suit filed for seeking the relief of possession. Thus in absence of any such relief being sought by the original owners, the plaintiff who has satisfied the legal requirements of provisions of Section 53-A of the said Act cannot be directed to handover possession of the suit property to the defendants.

11. Accordingly, the substantial questions of law as framed are answered by holding that the appellate Court was justified in granting the benefit of the provisions of Section 53-A of the said Act to the plaintiff by modifying the decree for permanent injunction. Similarly, such benefit could be granted to a plaintiff in a suit filed by her for grant of decree of specific performance. The plaintiff having performed her part of the contract, she was entitled to protect her possession.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal Nos. 318/2006 and 311/2008

Decided On: 19.09.2018

 Khandu Dajiba Kavar  Vs.  Leela

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(2) MHLJ 710

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Whether party can claim benefit of doctrine of part performance without pleading?

 The last contention of the learned Counsel for the Appellant is in relation to application of Section 53A of the T.P. Act. It is well settled that the Defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first Defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first Defendant/Appellant to claim the benefit available Under Section 53A of the T.P. Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

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Whether son and grandson have right in property which father got in partition?

Therefore, the properties acquired by Defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of Defendant No. 2 retained the character of a coparcenary property and the Plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the Plaintiffs was not maintainable.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: (2018) 7 SCC 646

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Whether purchaser of property can take benefit of doctrine of part performance if sale deed is exhibited?

 On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., MANU/SC/0246/2010 : (2010) 5 SCC 401 this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. Section 49 of the 1908 Act reads thus:

49. Effect of non-registration of documents required to be registered.- No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.

11. In the reported decision, this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited, MANU/SC/7679/2008 : (2008) 8 SCC 564 and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18377 of 2017

Decided On: 04.07.2018

 Ameer Minhaj  Vs. Dierdre Elizabeth (Wright) Issar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 7 SCC 639

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Whether relief can be granted to a party without pleading?

 The last contention of the learned counsel for the appellant is in relation to
application of Section 53A of the T.P Act. It is well settled that the defendant who
intends to avail the benefit of this provision must plead that he has taken
possession of the property in part performance of the contract. Perusal of the
written statement of the first defendant shows that he has not raised such a plea.
Pleadings are meant to give to each side, intimation of the case of the other, so that,
it may be met to enable courts to determine what is really at issue between the
parties. No relief can be granted to a party without the pleadings. Therefore, it is
not open for the first defendant/appellant to claim the benefit available under
Section 53A of the T.P. Act.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5415 OF 2011

SHYAM NARAYAN PRASAD Vs KRISHNA PRASAD AND ORS.

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Whether unregistered partition deed is admissible in Evidence?

 In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this
Court was considering the admissibility of an unregistered partition deed. It was
held thus:
“……Section 17(i)(b) lays down that a document for
which registration is compulsory should, by its own
force, operate or purport to operate to create or declare
some right in immovable property……Two propositions
must therefore flow:12
(1) A partition may be affected orally; but if it is
subsequently reduced into a form of a document and that
document purports by itself to effect a division and
embodies all the terms of bargain, it will be necessary
to register it. If it be not registered, S.49 of the Act
will prevent its being admitted in evidence. Secondary
evidence of the factum of partition will not be admissible
by reason of S.91 of the Evidence Act, 1872.”
(emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5415 OF 2011

SHYAM NARAYAN PRASAD Vs KRISHNA PRASAD AND ORS.

S.ABDUL NAZEER, J.
Dated:July 02, 2018.
Citation: (2018) 7 SCC 646

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NOTES ON PART PERFORMANCE(S 53A OF TRANSFER OF PROPERTY ACT)

Requisite of this doctrine:-

1) There should be a contract to transfer for consideration,any immovable property by a writing signed by transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

The Orissa high court has held that if parties execute an unregistered sale deed without prior permission of competent authority,the transaction is void,and benefit of S 53A can not be claimed.(Sadhu meher v Rajkumar patel AIR 1994 Orissa 26).

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Whether prospective buyer can retain possession of property if his suit for specific performance is dismissed?

In our considered opinion, one of the effects of the dismissal of Appellant's suit/appeal, which was filed for specific performance of the agreement, was that the Appellant was not entitled to retain possession of the suit land. In other words, the possession of the Appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the Respondents to claim back the same from the Appellant on the strength of their ownership.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5039 of 2009

Decided On: 05.12.2017

Revanasiddayya Vs Gangamma and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Navin Sinha, JJ.

Citation:(2018) 1 SCC 610

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Whether doctrine of part performance as per S 53A of transfer of property Act can be used by plaintiff as shield?

 The first contention raised by learned advocate Mr. Vimal Purohit is that the suit agreement requires to be registered compulsorily in view of the provisions contained under Section 17(aa) of the Registration Act. Since, it is not registered, it cannot be admitted in evidence as provided under Section 49 of the Registration Act. It is true that the agreement to sale is required to be registered as per amended Section 17(aa) of the Registration Act. Since there is no corresponding amendment in Section 49 of the Registration Act, the suit of the plaintiff would not fail on the ground of non-registration of the agreement to sale. Even otherwise, document, required to be registered, if unregistered, can be admitted in evidence as evidence of contract in a suit for specific performance. Thus, unregistered agreement can be used as an evidence of collateral purpose as provided in proviso to Section 49 of the Registration Act. Therefore, it is neither appropriate nor necessary to consider the contention raised by learned advocate Mr. Vimal Purohit about maintainability of the suit as framed by the plaintiff. If any issue in that regard is settled by the learned trial Court, obviously, such issue would be decided in accordance with law. There is no doubt in the mind of this Court that the sale agreement by itself does not create any interest or charge in the immovable property. In the case of Suraj Lamp & Industries Pvt. Ltd. (supra), the Hon'ble Apex Court has held that the immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. While holding so, the Hon'ble Apex Court held that observations regarding SA/GPA/WILL transactions are not intended to apply to such bona fide/genuine transactions. Therefore, contention raised by learned advocate Mr. Purohit that doctrine of part performance incorporated in Section 53A of the Transfer of Property Act can be pressed into service only as a defence and the holder of agreement of contract cannot file a suit against the transferor in respect of the suit property for any purpose, cannot be accepted. Scrutiny of Section 53A of the Transfer of Property Act would indicate that when necessary conditions for application of the provisions are fulfilled, the transferor or any person claiming under him is debarred from enforcing against the transferee or any person claiming under him any right in respect of the property in question, even though, required to be registered, is not registered or where there is an instrument of transfer, the transfer is not legally complete. So, attempt on the part of learned advocate Mr. Purohit is to drive the Court to hold that the transferee can use the unregistered deed as shield only as a defendant and not as a plaintiff would defeat the very spirit of Section 53A for it will be possible for an over-powering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the court as a plaintiff. If the right as a shield is available to the transferee as a defendant, there is no justification that it would be denied to the transferee even if by force of circumstances, he is compelled to approach the Court as a plaintiff to use that shield.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Appeal From Order No. 457 of 2016 and Civil Application No. 12575 of 2016 in Appeal From Order No. 457 of 2016

Decided On: 10.01.2017

Ghnshyambhai Dhirubhai Barvaliya Vs. Rasikbhai Dhirubhai Ambaliya and Ors.

Hon'ble Judges/Coram:

S.H. Vora, J.

Citation: AIR 2017 Gujarat 164

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When defendants are entitled to get benefit of doctrine of part performance?

In the case at hand, the appellants have sought for
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. JHARKHAND HIGH COURT
SECOND APPEAL NO. 61 of 2004

Smt. Gita Devi
V 
Mrs. Sobha Agarwalla,

PRESENT
 MR. JUSTICE D.N. UPADHYAY
 PRONOUNCED ON 05/08/2016.
Citation: AIR 2017 Jharkhand 24

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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  Vs  VENUGOPAL (D) THR. L.RS. 

Dated:MARCH 21, 2017.
Citation: AIR 2017 SC 1569,(2017) 4 SCC723

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