IMPORTANT POINT
Prior written agreement is sine qua non for the applicability of equitable doctrine of part performance contained in S. 53 A of Transfer of Property Act, 1882.

Headnote:Transfer of Property Act, 1882-Section 53A-Part performance-Oral agreement to sell the immovable property-Proposed vendee respondent put in possession-Proposed vender Mool Chand writing letters to his uncle -Terms of Transfer ascertainable from these letters-Whether proposed vendee can protect his possession on the plea of part performance u/s. 53A T.P.A.-High Court granting it-Appeal against to Supreme Court-Whether High Court is right? (No)-Appeal allowed.
Held : Learned counsel appearing for the respondents by referring to the letters written by Mool Chand dated 14th January, 1969 - Ex. P12, 24th January, 1969 - Ex. P11, 5th February, 1969 - Ex. P10, 18th February, 1969 - Ex. P9, 8th March, 1969 - Ex. P8, 28th March, 1969 - Ex. P7 and 14th May, 1969 - Ex. P5 submitted that Mool Chand having admitted that he had agreed to sell his half share of the property, the letters written by him be deemed to be the written agreement to sell in terms of Section 53A of the Act. We have perused these letters and on their perusal find that Mool Chand in these letters has admitted that he had agreed to sell his half share of the property for a sum of Rs. 15, 000/- out of which Rs. 10, 000/- was received by him. In each of these letters Mool Chand has called upon Bhagwan Dass to pay the balance amount of Rs. 5.000/- as he was in urgent need of the money. Bhagwan Dass failed to do so. Ultimately, on 21st May, 1970 Mool Chand wrote a letter, Ex. P3, repudiating the so called agreement to sell as Bhagwan Dass had failed to carry out his part of the agreement. It was further stated in this letter that the amount received by him as advance was appropriated by him towards the use and occupation of the property at the rate of Rs. 20 - per day from Ist May, 1970 onwards. He categorically stated that he was no longer interested in selling the property. From the admission made by Mool Chand that he had agreed to sell his half share in these letters. Learned counsel for the respondents argued that the letters written by him be taken to be the agreement to sell in which the terms of the agreement have been spelt out. We do not find any substance in this submission. The letters written by Mool Chand cannot be termed as an agreement to sell the terms of which have been reduced into writing. At the most it is an admission of an oral agreement to sell and not a written agreement. Statutorily the emphasis is not on a written agreement only. In addition the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainty from the written document. There was no meeting of minds. Admission made by Mool Chand of an oral agreement to sell does not spell out the other essential terms of the agreement to sell such as the time frame within which the sale deed was to be executed and as to who would pay the registration charges etc. The letters written by Mool Chand cannot be taken to be an agreement to sell within the meaning of Section 53-A spelling out the terms of an agreement for sale. In our view, the High Court fell in error in coming to the conclusion that the letters written by Mool Chand referred to above, constituted an agreement to sell the terms of which have been reduced in writing. Terms necessary to constitute the transfer with reasonable certainty could not be ascertained from the letters written by Mool Chand to his uncle. At the most it is an acknowledgment that there was an oral agreement to sell but the same could not be construed to be a written agreement to sell the terms of which have been reduced into writing. Written agreement has to precede the putting of the proposed vendee in possession of the property. Bhagwan Dass was never put in possession in pursuance of the property to the written agreement arrived at between the parties. For the reasons stated above, the appeal is accepted. Judgment of the High Court is set aside and the suit filed by the plaintiff/ appellants for possession and mesne profits of their property is decreed. Respondents have deposited a sum or Rs. 1,47,000/- towards the mesne profits, which are lying deposited in the High Court at Shimla. The mesne profits are restricted to the amount already deposited by the respondents. Out of this amount a sum of Rs. 55,000/- is stated to have been withdrawn by Mool Chand. The balance amount lying deposited in the High Court be disbursed to the appellants along with interest, if any. There will be no orders as to costs. (Paras 14 to 16)

JUDGMENT

Bhan, J.-Point for consideration in this appeal is as to whether:

"A person (claiming to be a proposed vendee) can protect his possession of an immovable property on the plea of part performance under Section 53-A of the Transfer of Property Act on the basis of an oral agreement, the terms of which have not been reduced in writing."

The relevant facts are :

1. Plaintiffs appellants (hereinafter referred to as "the appellants") Mool Chand and Leela Ram were the owners of the property known as Dayal Villa situated in Khasra Nos. 1195, 1196, 1198, 1200, 1201 and 1202 measuring 613 sq. meters in Solan Town, specifically described in the plaint (hereinafter referred to "the property in dispute"). Leela Ram above-named died during the pendency of the suit before the trial court and his name was substituted by his widow and two sons as plaintiffs. Widow died during the pendency of this appeal. The title of Leela Ram is represented through his two sons as the appellants.

2. The appellants filed the suit with the averments that Late Bhagwan Dass (predecessor in interest of the defendants) was their real uncle (father s brother). Because of the partition of the country in 1947 Bhagwan Dass who was living in Sindh Province migrated to India. The appellants permitted him to occupy their house at Solan as a licensee in 1948-49. In spite of repeated requests to vacate the property Bhagwan Dass failed to handover the possession of the property to the appellants. In 1974 Bhagwan Dass agreed to vacate the property after six months. On his failure to vacate the property he was required to pay damages by way of use and occupation at the rate of Rs. 20/- per day till the date of actual vacation. As Bhagwan Dass failed to vacate the property and to pay the damages as agreed upon, a suit was filed for possession of the property as well as for recovery of Rs. 43,200/- as mesne profits for the use and occupation of the property at the rate of RS. 1200/- per month.

3. The defendants respondents (hereinafter referred as the respondents ) while resisting the suit averred that the appellants agreed to sell the property in dispute to Bhagwan Das in the year 1968 for a consideration of Rs. 30,000/- out of which Rs. 10,000/- was paid to the appellants. A sum of Rs. 1,100/- was kept by Bhagwan Dass with Kishni, mother of the appellants, at their instance. A further sum of Rs. 10,000/- was deposited with one Gulab Singh, brother of the appellants, in the year 1969, as part of the sale consideration. Bhagwan Dass continued to occupy the property till 1968 as a permissive user and thereafter in part performance of the agreement to sell. That the property at the time of lease was in a dilapidated condition. Suitable improvements in the property by reconstructing the walls, floors, roof of Balcony and by providing flush latrines at a cost of Rs. 35.000/- were carried out. No objection was raised by the appellants at any time to the improvements carried out by the respondents. It was further pleaded that they have always been ready and willing to perform their part of the agreement to sell and pay the remaining amount of the sale consideration. Alternatively, it was pleaded that the respondents acquired title to the property in dispute by way of adverse possession as they were continuing in possession since 1968. The claim of the appellants for mesne profits was denied.

4. The appellants in their rejoinder pleaded that plaintiff No. 1 Mool Chand in the year 1968 had agreed to sell his half share in the property in dispute to Bhagwan Dass on the letter s representation that the market value of the entire property in dispute at that time was Rs. 30.000/- The value of half share was Rs. 15,000/-. It was admitted that Mool Chand had received Rs. 10.000/- as part of the sale consideration. It was, however, pleaded that since Bhagwan Dass failed to pay the balance sale consideration, the deal fell through and the amount received as part of the sale consi

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2002 Supreme(SC) 139

IMPORTANT POINTPrior written agreement is sine qua non for the applicability of equitable doctrine of part performance contained in S. 53 A of Transfer of Property Act, 1882.

Cases Referred (4)

IMPORTANT POINT
Prior written agreement is sine qua non for the applicability of equitable doctrine of part performance contained in S. 53 A of Transfer of Property Act, 1882.