Bombay HC: Whether third party has locus standi to plead on behalf of the real owner that it is he (real owner), who was to be benefited by the Benami transaction?

 It is, therefore, necessary to understand whether the evidence is sufficient to prove that the appellant was holding property Benami. The appellant's husband is not party to the suit and, therefore, he has not claimed himself to be the real owner of the property. To my mind and in terms of Section 4 of the Benami Transactions Act, the question, whether the property held Benami was for the benefit of real owner, can only be answered when the real owner either files a suit or raises a defence on this count. It is so because the intention behind the Benami transaction is known to the person in whose name the property has been purchased or the person who has purchased the property in the name of other. A third party has no locus to plead on behalf of the real owner that it is he (real owner), who was to be benefited by the Benami transaction, unless third party otherwise proves. {Para 12}

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 616/2007

Decided On: 26.04.2024

Badrunisa Vs. Sabdar Khan and Ors.

Hon'ble Judges/Coram:

Anil L. Pansare, J.

Citation: 2024:BHC-NAG:4870, MANU/MH/2715/2024.

Read full judgment here: Click here.

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Bombay HC: Whether agreement executed by husband of original owner will be concluded contract and will bind his wife?

 The respondents have placed on record a document Exh.-78, allegedly signed by the plaintiff's husband stating therein that the suit property is agreed to be sold to the respondent No. 1. As such, the husband has denied execution of document and even if the document is presumed to be signed by the appellant's husband, it does not satisfy the ingredients of the concluded contract, at least, not against the appellant and, therefore, the question of granting protection under Section 53-A of the Act does not arise at all. {Para 17}

18. Both the Courts below have thus committed serious error of law in holding that the transaction under question was Benami and secondly that there was valid contract between the appellant and the respondents.

19. Put all together, it cannot be said that agreement dated 07.07.1995 is binding upon the appellant-plaintiff inasmuch as the document is the unilateral document, signed by the appellant's husband. The respondents failed to establish a concluded contract with the plaintiff. The substantial question of law is answered accordingly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 616/2007

Decided On: 26.04.2024

Badrunisa Vs. Sabdar Khan and Ors.

Hon'ble Judges/Coram:

Anil L. Pansare, J.

Citation: 2024:BHC-NAG:4870, MANU/MH/2715/2024

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Supreme Court: Transferee cannot claim protection U/S 53-A of TPA if he fails to prove the execution of a sale agreement based on which possession was claimed.

 In terms of this provision, if the above preconditions 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. {Para 12}

13. Section 53-A of the Transfer of Property Act was inserted

partly to set at rest the conflict of views in this country, but

principally for the protection of ignorant transferees who take

possession or spend money in improvements relying on documents

which are ineffective as transfers or on contracts which cannot be

proved for want of registration. The effect of this section, is to

relax the strict provisions of the Transfer of Property Act and the

Registration Act in favour of transferees in order to allow the

defence of part performance to be established.

14. Section 53-A is an exception to the provisions which require a

contract to be in writing and registered and which bar proof of

such contract by any other evidence. Consequently, the exception must be strictly construed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

EXTRAORDINARY APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No.30804 of 2024

[Diary No(s). 56304/2024]

GIRIYAPPA & ANR. Vs KAMALAMMA & ORS. 

Citation: 2024 INSC 1043

Dated: 20th DECEMBER, 2024.

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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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Whether tenant can acquire possessory right in tenanted premises under the oral agreement of sale?

 I have perused the judgment of the Trial Court. Trial Court has

decreed the suit on the ground that in the written statement the Appellant admitted payment of rental amount from time to time and did not claim that the status of the Appellant was severed as a tenant completely. Even assuming that the Appellant had entered into an agreement to sell for purchasing the suit property from the Respondent and had paid part consideration, at best, the Appellant could rely on the agreement for two purposes i.e. (i) file a suit for specific performance seeking execution of

the sale deed; and (ii) claim protection under Section 53A of the Act. It was also an admitted case that there was no written Agreement to Sell ever executed between the parties and the defence of the Appellant was based on an oral agreement. Based on the amendment to Section 17 of the Registration Act, whereby the Registration of an Agreement to Sell has been made compulsory as well as amendment to Section 53A of the Act

and the Indian Stamp Act, 1899, the Trial Court concluded that in the absence of a registered Agreement to Sell the Appellant could not claim protection under Section 53A of the Act. Based on the proposition of law laid down in Sudhir Sabharwal vs. Rajesh Pruthi 2014 AIR CC 2850 by this Court that mere Agreement to Sell of immovable property will not terminate the landlord-tenant relationship, the Trial Court was of the view

that no purpose would be served to put the matter to trial and passed the judgment, noting that while there was no admission, however, if thedefendant has no legal defence, then under Order XIV Rule 1(6) CPC, judgment can be straightaway passed.{Para 12}

14. Appellant in the written statement admitted that he was inducted as a tenant in the year 2013 vide a registered lease deed dated 09.09.2013 and also admitted the renewal of the lease till 2015. Appellant, however, set up an oral agreement to sell and also pleaded payment of Rs.30 Lakhs towards part consideration of the sale price.

15. The issue that arises before this Court is as to whether the

Appellant could claim retention of the suit property on the plea of an oral Agreement to Sell.

16. The answer to the above question in my view can only be against the Appellant. The legal position on this aspect is no longer res integra. Section 17 of the Registration Act was amended by the Registration and Other Related Laws (Amendment) Act, 2001, Act No.48 of 2001, by insertion of Section 1(A) therein and by virtue of the Amendment, registration of an Agreement to Sell has been made compulsory with effect from 24.09.2001. Section 17(1-A) reads as follows:-

“Section (1A). The documents containing contracts

to transfer for consideration, any immovable

property for the purpose of Section 53A of the

Transfer of Property Act, 1882 (4 of 1882) shall be

registered if they have been executed on or after the

commencement of the Registration and other

Related Laws (Amendment) Act, 2001 and if such

documents are not registered on or after such

commencement (i.e. w.e.f. 24.09.2001), then, they

shall have no effect for the purposes of the said

Section 53A.”

17. Therefore, a buyer cannot avail the benefit of Section 53A of the Act if the agreement to sell is not registered. When a tenant enters into an agreement to sell for buying the tenanted premises but the agreement to sell is not in conformity with law, the relationship continues as landlord tenant and while the tenant can seek specific performance, but he acquires no right to retain possession, till a sale deed is registered in his favour.

In view of the legal position that “mere agreement

to sell of immovable property does not create any

right in the property save the right to enforce the

said agreement” and in view of the preceding

discussion that “mere agreement of sale will not

terminate landlord- tenant relationship unless there

is specification to that effect in agreement itself”,

this Court is of the view defendant has not right to

occupy the said property.”

18. In Shiv Kumar vs. Sumit Gulati, RSA No.417/2015, decided on 04.12.2015, the Court held that when the defendant claims possession on the basis of an oral agreement to sell, the same cannot be recognized in view of the amended Section 53A of the Act. 

19. Significantly in the present case the relationship between the

parties as landlord-tenant is an admitted position. It is also admitted that the rent of the premises was over Rs.3,500/- as also that the Respondent terminated the lease by sending a notice under Section 106 of the Act. In view of the said position and in the absence of the alleged oral agreement being registered, the Trial Court has rightly passed a decree for recovery of the suit property and no infirmity can be found. The suit is pending on

other reliefs and shall be continued and adjudicated in accordance with law.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 RFA 272/2020 and CM 28819/2020, 28820/2020 and 28818/2020

PRASHANT GOYAL Vs INDRANIL WADHWA .

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Date of decision: 11.11.2020

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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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Important Notes on Transfer of property Act

1) NOTES ON LEASES OF IMMOVABLE PROPERTY

https://www.lawweb.in/2018/06/notes-on-leases-of-immovable-property.html

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

https://www.lawweb.in/2018/06/notes-on-part-performances-53a-of.html

3) Good article on subrogation( Transfer of property Act)

https://www.lawweb.in/2018/05/good-article-on-subrogation.html

4) Good legal article on Lis pendens( S 52 of Transfer of Property Act)

https://www.lawweb.in/2018/05/good-legal-article-on-lis-pendens.html

5)NOTES ON GIFT ( S 122-129 of Transfer of property Act)

https://www.lawweb.in/2018/06/notes-on-gift.html

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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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