MOHAMMEDUNNI HAJI Vs. RAMACHANDRAN

JUDGEMENT

(1.) THESE appeals are against a common judgment. Three brothers filed three suits against the appellant herein as 1st defendant and the father of the plaintiffs as supplemental 2nd defendant. The suit properties admittedly belonged to the plaintiffs. The properties were managed by their father the supplemental 2nd defendant. While so, the 2nd defendant entered into an agreement with the 1st defendant and pursuant to that agreement he was put in possession of the properties.

(2.) THE plaintiffs filed the suit for recovery of the properties in the strength of title. THE 1st defendant resisted the suit on the ground that he has got an entitlement to be in possession of the properties and to shield his possession he can use S. 53a of the Transfer of Property Act.

(3.) LEARNED counsel for the appellant submitted that a reading of Exts. A1 and B2 and the evidence of DW2 would enable this Court to reach a conclusion that the plaintiffs cannot recover the properties from the 1st defendant since the 1st defendant is legally entitled to be in possession of the properties under S. 53a of the Transfer of Property Act. Presently we shall consider the application of S. 53a of the Transfer of Property Act on the facts unfolded in this case. o. S. 53 A was first introduced in the Transfer of Property act by the Transfer Property Amendment Act, 1929. By the introduction of this section the modified form of equity of part performance as developed in English law in Maddison v. Alderson was recognised by the statutory law of India. Before the introduction of this Section there was considerable uncertainty in indian Law on this subject. The Privy Council in AIR 1934 P. C. 235 ( (Mian) Pir bux v. Mohamed Tahar) made it clear that under Indian Law a contract for the sale of immovable property does not of itself create any interest in or charge on such property. This is so because of the clear provision in S. 54 of the transfer of Property Act which clearly mandates that an agreement for sale "does not of itself create any interest in or charge on such property". The Privy Council said that in the light of S. 54 there is no room for the application of the English equitable doctrine that a con tract for sale of real property makes the purchaser the owner in equity of the estate. Their Lordships of the Privy Council observed thus:- "thus under the law applicable before the insertion of S. 53a, an averment of the existence of sale, whether with or without an averment of possession following upon the contract was not relevant defence to an action of ejectment. If the contract is still enforceable the defendant may found upon it to have the action stayed, and by suing for specific performance obtain a title which will protect him from ejectment. But if it is no longer enforceable, its part performance will not avail him to any effect". The Privy Council relied on the decision reported in AIR 1933 PC. 29 (Currimbhoy & Co. Ltd. v. LA. Creet & others) and AIR 1931 p. C. 79 (G. H. C. Ariff v. Jadunath Majumdar Bahadur ). The Supreme Court in AIR 1964 SC 877 (Chaliagulla Ramachandrayya and others v. Boppana Satyanarayana and others) referring to AIR 1916 P. C. 9 (Venkayyamma Rao v. Venkata Narasimha Appa rao) and AIR 1931 PC. 79 observed that S. 53a introduces in a limited form the english doctrine of equity of part performance. It was emphasised that after s. 53a was enacted the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of S. 53a are satisfied. The Supreme Court also said thus: "quite clearly, S. 53adoes not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument". On the above observations of the Supreme Court we have to deal with this case after delineating the requirements of the section and examining whether the requirements of the section are complied with on the facts disclosed in this case. Now we shall quote S. 53a of the Transfer of property Act. It runs thus:- "s. 53a Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not be completed in the manner prescribed therefore 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. It is obvious from the provisions of the section that the contract must be signed by or on behalf of the person sought to be charged under the Section. The contract must be in writing. It must be a contract to transfer the immovable property for consideration. The terms necessary to constitute the transfer should be reasonable. In such a contract the transferee as in part performance of the contract should take possession of the property or any part thereof. If the transferee is already in possession on the basis of the contract and if he continues in possession in part performance of the contract and has done some act in furtherance of the contract the requirements under S. 53 A are satisfied. Further it is made clear that the transferee should perform his part of the contract or he should be willing to perform his part of the contract.