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2004(6) Supreme 399
SUPREME COURT OF INDIA
(From Bombay High Court)
Ashok Bhan & S.H. Kapadia, JJ.
Rambhau Namdeo Gajre -Appellant
versus
Narayan Bapuji Dhotra (dead) through Lrs. -Respondents
Civil Appeal No. 4610 of 2000
Decided on 25-8-2004
Counsel for the Parties :
For the Appellant : B.N. Deshmukh, Sr. Advocate, Venkateswara Rao Anumolu for S.M. Jadhava, Advocates.
For the Respondents : Dr. N.M. Ghatate, Sr. Advocate, S.V. Deshpande and Ms. Anuradha Rustogi, Advocates.
Held : Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. The question which falls for our consideration is: "Whether the doctrine of part performance could be availed of by the defendant with whom the respondent had never entered into an agreement of sale?" It is an admitted case of the parties that the plaintiff/respondent had entered into an agreement of sale with Pishorrilal on 16.6.1961 and who had taken possession of the suit land in part performance thereof. Sale deed had not been executed and registered in his favour. Pishorrilal did not take any steps for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. Within a period of 2-1/2 months Pishorrilal executed a similar agreement of sale dated 1.9.1961 in favour of the appellant and put him in possession of the suit land. Pishorrilal did not have any right to enter into an agreement of sale with the appellant as he was not the owner of the suit land. The appellant did not care to ascertain the title of Pishorrilal to the suit land before entering into the transaction with him. There was no agreement between the respondent and the appellant in connection with the suit land. The doctrine of part performance enshrined in Section 53-A of the Act could have been availed of by Pishorrilal against the plaintiff/respondent subject to the fulfillment of certain conditions but the same could not be availed of by the appellant against the plaintiff/respondent with whom he has no privity of contract. The doctrine of part performance as contemplated by Section 53-A can be availed of by the transferee or any person claiming under him. The appellant not being the transferee within the meaning of Section 53-A of the Act could not invoke the equitable doctrine of part performance to protect his possession as against the plaintiff/respondent. (Paras 10 to 12)
Doctrine of part performance is rooted in equity and provides a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee if the proposed transferee satisfies other conditions of Section 53-A. It operates as an equitable estoppel against the original owner to seek possession of the property which was given to the proposed vendee in part performance of the contract. Appellant being a third party and not a privy to the transaction on which the estoppel rests can take no advantage of it. Pishorrilal did not have a transferable interest which he could convey to the appellant by entering into an agreement of sale with the appellant. The appellant under the circumstances does not have the equitable right to protect his possession as against the owner of the land, i.e., the respondent. Appellant is not the transferee within the meaning of Section 53-A. The appellant did not get the possessory or equitable title to the suit land through Pishorrilal as Pishorrilal himself did not have any right in the property. The only right possessed by the Pishorrilal under Section 53-A was to protect his possession as against his proposed vendee. He did not have conveyable interest in the property which he could transfer to a third party including the possession of the property. (Paras 14 and 15)
Key Points: - The doctrine of part performance under Section 53-A provides a shield of protection to the proposed transferee against the transferor, not against third parties. (!) - Protection under Section 53-A requires meeting specific conditions: (1) a contract to transfer immovable property for consideration; (2) the contract must be in writing and signed; (3) the writing contains ascertainable terms; (4) the transferee must take possession in part performance; (5) the transferee must have done some act in furtherance of the contract; (6) the transferee must have performed or be willing to perform his part. (!) (!) (!) (!) (!) (!) - The doctrine can be invoked by the transferee or any person claiming under him, but a third party with no privity of contract cannot invoke it against the plaintiff/ respondent. (!) (!) - An agreement to sell does not create an interest in the land; title transfers only by a registered deed when value exceeds Rs.100, and the presence of a registered sale deed is required to divest title from the vendor. (!) - In the cited case, the appellant, being a third party, could not avail of the doctrine to protect possession against the plaintiff/respondent. (!) (!) (!) - The High Court erred in treating Section 53-A as conferring ownership rights on proposed transferees against third parties; Section 53-A only provides a shield against the transferor. (!) - The appeal was dismissed; no merit found in extending Section 53-A rights to third parties. (!)
JUDGMENT
Bhan, J.-Defendant/appellant (hereinafter referred to as "the appellant") has filed this appeal against the judgment of the High Court in Second Appeal No. 205 of 1984 whereby the High Court reversing the judgment and decree passed by the first Appellate Court has restored the order passed by the Civil Court, Jalna in Suit No. 184 of 1974. The Trial Court had decreed the suit filed by the Narayan Bapuji Dhotra, (deceased) now represented through his Legal representatives (hereinafter referred to as "the respondent").
2. The property in dispute is agricultural land bearing Survey No. 94 admeasuring 18 acres and 23 gunthas situated at Village Jambwadi, Taluka Jalna in the State of Maharashtra. Respondent who was the owner of the suit land filed the Suit for possession of the land with the averment that the appellant had wrongfully dispossessed him of the suit land in April, 1965. According to him, he was the owner of the suit land which was his self acquired property. It was averred that in the Special Civil Suit No. 20 of 1962 filed by his brother for partition and possession of the ancestral property, the suit land along with other lands was left to his share.
3. Appellant resisted the suit contending, inter alia, that under an agreement of sale dated 16.6.1961 Narayan Bapuji Dhotra, original plaintiff, and his brother Manohar agreed to sell the suit land to Pishorrilal Punjabi who paid the entire amount of consideration and was put in possession of the land in part performance of the agreement of sale. That Pishorrilal executed an agreement of sale of the suit land in favour of the appellant on 1.9.1961. That he paid the entire amount of the consideration to Pishorrilal and was put in possession of the suit land by Pishorrilal in part performance of the agreement dated 1.9.1961. It was contended that since he was in possession of the suit land in part performance of the agreement, he was entitled to protect his possession in terms of Section 53-A of the Transfer of Property Act (hereinafter referred to as "the Act").
4. Trial Court upon consideration of the evidence on record came to the conclusion that a mere contract of sale is incapable of creating any right or title in favour of the transferee. That no right or interest was created in the suit land in favour of Pishorrilal by virtue of the agreement of sale dated 16.6.1961. That the original agreement of sale between Narayan Bapuji Dhotra and Pishorrilal was not placed on the record and the certified copy produced as Exhibit 16/1D has not been proved. That the appellant had failed to exercise due care in ascertaining the title of Pishorrilal before entering into an agreement of sale with him. It was highly improbable that the appellant had no knowledge about the pendency of the suit between the plaintiff and his brother and Pishorrilal. It was also held that the appellant could not defend his possession under Section 53-A of the Act as against the plaintiff/respondent. In view of the findings recorded the trial Court proceeded to pass the decree for possession in favour of the respondent.
5. Aggrieved against the judgment and decree passed by the Trial Court, the appellant filed an appeal. The first appellate Court taking a different view set aside the judgment of the trial Court and dismissed the suit filed by the plaintiff/respondent. The first Appellate Court came to the conclusion that the appellant had acquired an equitable/possessory title to the suit land on the basis of the agreement of sale executed in his favour by Pishorrilal and was therefore, entitled to protect his possession under Section 53-A of the Act.
6. Original plaintiff/respondent died. His Legal representatives (now the respondent) filed a second appeal in the High Court. Although, a number of questions of law were framed at the time of admission of the second appeal but at the time of final disposal the only substantial question of law worth consideration was found to be:
"Whether the defendant,
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