Statutory protection granted under section 53-A of the Transfer of Property Act to a transferee in possession to continue his possession under an unregistered contract or instrument of transfer is not lost by lapse of time to file the suit for specific performance of contract for acquiring title, if he satisfies the essential requirements of the said section 53-A of the Act, and it is not incumbent upon him to file such a suit within time to protect his possession after the lapse of time.

Per Desai A.A., J.:—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 v. Appa)1, reported in A.I.R 1957 Bom. 138, the Division Bench of this Court took a view that the vendee is entitled to resist doctrilien 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 v. Policeman Housing Society)2, reported in 1991 Mh.L.J. 256, took a view:

“The agreement could not be enforced in law since relief of specific performance is beyond the period of limitation. The agreement in question met with its legal death. As a result, the protection under section 53-A of the Act which flows from such agreement cannot survive beyond its life time which is the source of the protection.

8. The defendants were merely prospective purchasers and the title has not vested in them. Once the remedy for acquiring title through specific performance is lost to the vendee, equitable relief of protection to possession comes to end. Such protection is conterminous and does not survive beyond the span of the agreement. It is no doubt held that section 53-A is a shield for the vendee and not a sword. Limitation has also nothing to do with defence. However, the right asserted must subsist as per the limitation prescribed by law. Legally non-existent right cannot oust the claim of vendor to recover possession, which was delivered in part of performance of the contract. To allow the vendee to hold the possession even if the contract is not enforceable would lead to very anomalous, legal and factual situation. It would be paying dividends to vendee whose gesture suffers from laches and who lost the right to claim the transfer of title. It would be defeating the doctrine of equity which has been codified in section 53-A of the Act.”

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

“Whether once the remedy of acquiring title by a suit for specific performance is lost to the vendee by lapse of time, right to protect his possession upon satisfying the conditions contained in section 53-A of the Transfer of Property Act comes to an end?”

In other words, the question as posed is whether the transferee in possession, who does not avail the remedy of acquiring title by specific performance, can be regarded of having fulfilled the conditions envisaged by section 53-A of the Act, so as to sustain the possession?

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 fulfill 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 of immovable property. The reliance of the learned Counsel is, therefore, completely misplaced.

4. Shri Khapre urged that the view as taken in the case of Nanasaheb is the correct one. According to him, limitation prescribed by the statute can take away the remedy and not the right connected t

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