LAWS(BOM)-1993-11-30

MAHADEO NATHUJI PATIL Vs. SURJABAI KHUSALCHAND LAKKAD

Decided On November 02, 1993
MAHADEO NATHNJI PATIL Appellant
V/S
SURJABAI KHASHALCHAND LAKKAD Respondents

JUDGEMENT

(1.) The question involved in this appeal relates to extent of protection available under Section 53-A of the Transfer of Property Act (for short, 'the Act') to maintain one's possession derived through part performance. In the case of Nanasaheb AIR 1957 Bom 138, the Division Bench of this Court took a view that the vendee is entitled to resist the claim of eviction of a vendor ; even if vendee's claim for specific performance is barred by limitation. Subsequently, the Division Bench in the case of Adinath, 1991 Mh. LJ 256, took a view :

(2.) Having regard to the conflict, the learned Single Judge formulated a question for being referred to the Full Bench as thus :

(3.) In the submission of Shri Khapre, the learned Counsel appearing for the appellant, the answer is in affirmative. According to him, to perform a contract specifically by execution and registration of a Deed of Sale is the obligation on the transferor. His failure or refusal does not cast any obligation on the transferee when he fulfils or is willing to fulfil other conditions of the contract. His right to hold possession remains intact even without registration of a Deed of Sale in his favour. Shri Khapre placed reliance on the non-obstante clause under Section 53-A of the Act. This clause has a reference to a contract or instrument of transfer, which is compulsorily required to be registered under the relevant provisions of law, such as contract of lease, etc. Contract of sale of immovable property or parole agreement of transfer of possession by any instrument needs no compulsory registration. This clause has no reference to the registration of deed of sale. The clause does not save the registration of deed of sale immovable property. The reliance of the learned Counsel is, therefore, completely misplaced.