JUDGMENT - Mohta V.A., J.:—Can a transferee file a suit for injunction against the transferor to protect the former's possession over the land given to him as per the terms of agreement of sale?

2. The above question of law falls for determination in this Second Appeal filed by the plaintiff-transferee whose suit for permanent injunction against the defendant-transferor restraining him from disturbing the lawful possession has been dismissed by the Courts below on the grounds of maintainability as well as on merits.

3. First, the question of maintainability. The lower Courts have taken a view that the doctrine of part performance incorporated in section 53-A of the Transfer of Property Act can be pressed into service only as a defence and unless and until a decree for specific performance of agreement of contract is passed in favour of the transferee, he cannot file a suit against the transferor in respect of the suit property for any purpose. I find it extremely difficult to sustain this view for the reasons that follow.

4. Scrutiny of section 53-A would indicate that the necessary conditions for application of the provisions are: (1) There is a written contract signed by or on behalf of the transferor to transfer the immovable property for consideration. (2) The terms of the contract pertaining to transfer are clearly discernible. (3) Transferee in part performance of the contract is either put in possession or is continued in possession and has done some act in furtherance of the contract. (4) Transferee has performed or is willing to perform his part of the contract. Wherever the above conditions are fulfilled the transferor or any person claiming under him is debarred from enforcing against the transferee or any person claiming under him any right in respect of the property in question even though the contract though required to be registered is not registered or where there is instrument of transfer, the transfer is not legally complete.

5. The section recognizes in a modified form English doctrine of equity of part performance, which is designed to relieve the rigour of law and provides a remedy when a transfer or an agreement to transfer falls short of legal requirements. It is meant to protect transferees who for appropriate consideration take possession, spend money and/or put in labour in improvements relying on the terms of the contract which for want of registration or any other legal requirement cannot be proved or cannot confer title on them. Thus the crux of the provisions seems to be that mutual covenants are operative though title is not transferred as a result the transferee though cannot seek to enforce his title can resist the attack on his rights under the contract, which would include right to retain possession. Often it is said that the right cannot be used as a sword and can be used only as a shield. If this right as a shield is available to him as a defendant, I do not see any justification for a view that it would be denied to him even if by force of circumstances he as a law abiding citizen is compelled to approach the Court as a plaintiff to use that shield. The transferee is entitled to resist any attempt on the part of the transferor to disturb transferee's lawful possession under the contract of sale and his position — either as a plaintiff or as a defendant — should make no difference. Contrary interpretation viz. the transferee can use the shield only as a defendant and not as a plaintiff, would defeat the very spirit of section 53-A, for it will be possible for an over powering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the Court as a plaintiff. As far as letter of law is concerned, there is nothing which militates against the above object oriented interpretation.

6. The Courts below have relied upon the following two decisions in support of their view. (1) (Jiwan Dass Rawal v. Narain Dass others)1, A.I.R. 1981 Delhi 291. (

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