REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4311-4312 OF 2017
(ARISING OUT OF S.L.P (C) NOS.29405-29406 OF 2008)
VASANTHI .…APPELLANT
VERSUS
VENUGOPAL (D) THR. L.RS. ....RESPONDENT(S)
J U D G M E N T
AMITAVA ROY,J.
Leave granted.
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
alleged 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..
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 the 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 to 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.
“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, 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. 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,
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
clause (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 furtherance 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 the 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.
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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4311-4312 OF 2017
(ARISING OUT OF S.L.P (C) NOS.29405-29406 OF 2008)
VASANTHI .…APPELLANT
VERSUS
VENUGOPAL (D) THR. L.RS. ....RESPONDENT(S)
J U D G M E N T
AMITAVA ROY,J.
Leave granted.
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
alleged 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..
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 the 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 to 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.
“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, 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. 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,
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
clause (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 furtherance 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 the 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.
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.
