KAMALABAI LAXMAN PATHAK Vs. ONKAR PARSHARAM PATIL

JUDGEMENT

(1.) IN what situations will be doctrine of "part performance" as enunciated in Section 53a of the Transfer of Property Act, 1882 serve as a valid defence? It is incumbent on the party invoking the provisions of Section 53a of the Transfer of Property Act to establish before the Court that all the requirements of this section, and not only some of them, have been satisfied. Where the document in question is unavailable for good reasons, it would still be necessary to adduce secondary evidence to satisfy, the Court that there existed a contract in writing and, more importantly, so that the Court may ascertain with reasonable certainty as to what were the terms of that document. Equally necessary for the protection under this section to be made available, the defendant will have to be willing to perform the terms of the contract as required. In the absence of everyone of these requirements being satisfied and where the burden of proof is not adequately discharged, the applicability of Section 53a of the Transfer of Property Act will be impermissible.

(2.) THIS Second Appeal, though admitted in the year 1982, pertains to a litigation that commenced by way of Regular Civil Suit No. 47 of 1976 filed before the Civil Judge, Junior Division, Sindkheda. The present appellants, who are the legal heirs of one Laxman Shankar Pathak, were the original plaintiffs to that suit. It was their that the deceased Laxman was the owner of lands admeasuring 5 Acres and 11 Gunthas bearing Gat No. 37 of Mauja Ajande Budruk and that in or about the year 1966-67 he is alleged to have executed a "sauda Pavti" or an agreement to sell in respect of the said lands with defendant No. 1. The plaintiffs had contended that Laxman was in need of a sum of Rs. 2,200/ - which was advanced by defendant No. 1 and that the agreement was to the effect that the lands were to be utilised by defendant No. 1 to whom possession had been handed over for a period of five years. Obviously, the intention of the parties was that within this period of five years, the loan of Rs. 2,200. 00 would be satisfied and defendant No. 1 would accordingly return the lands in question. Nothing happended thereafter until January, 1978 and the lands continued in the possession of defendant No. 1, at which point of time a notice was served on him dated 19-1-1978 pointing out that the period of five years had elapsed and that the possession of the lands should be restored to the plaintiffs. A reply dated 13-2-1978 was sent to this notice wherein the contention was taken up that the defendants are entitled to retain the lands as there was an oral sale for a consideration of Rs. 4,200. 00 which amount had been paid to Laxman. Pursuant to this correspondence, the plaintiffs filed the suit for possession of the lands and for mesne profits.

(3.) IT is necessary to briefly recount the case made out in the written statement which accepts the position with regard to the existence of the "sauda Pavti", but the legal contention adopted is to the effect that by virtue of the provisions of Section 53a of the Transfer Of Property Act and the doctrine of "part performance" that the plaintiffs are precluded in law from asking for a decree for restoration of the possession. It is in these circumstances that the suit came up for trial. On behalf of the plaintiffs, Kamalabai gave evidence. Defendant No. 1 was supposed to have been absconding and was not traceable and defendant No. 2 contended that no decree was liable to be passed in the circumstances set out above. The learned trial Judge, after hearing the parties, upheld the defence that had been pleaded in so far as after discussing the law, he held that the possession of the defendants is protected, even if he fails to prove a completed sale. The suit accordingly came to be dismissed.