Back
1994 Supreme(Bom) 128
Bombay High Court
M.F.SALDANHA
Kamalabai Laxman Pathak - Appellant
Versus
Onkar Parsharam Patil - Respondent
Decided On : 03/16/1994
N.B. Shah, for Appellants; A.S. Rao, for R.M. Agrawal, for Respondents.
To qualify for the protection of the doctrine of part-performance under Section 53A of the Transfer of Property Act, a party must satisfy all the requirements of the section, including the existence of a written agreement, ascertainability of the terms of the contract with reasonable certainty, possession of the property by the transferee, and willingness of the transferee to perform their part of the contract.
Headnote:
PART PERFORMANCE - TRANSFER OF PROPERTY ACT, 1882 - SECTION 53A - REQUIREMENTS AND APPLICABILITY - DOCTRINE OF PART PERFORMANCE AS A VALID DEFENCE.
Fact of the Case:
Plaintiffs filed a suit for possession of lands and mesne profits, alleging that the deceased Laxman was the owner of the lands and had executed a "Sauda Pavti" or an agreement to sell the lands to defendant No.1 for a period of five years, after which the lands were to be returned. Defendant No.1 claimed protection under Section 53A of the Transfer of Property Act, arguing that he had taken possession of the lands and performed his part of the contract.
Finding of the Court:
The court held that the defendants failed to satisfy all the requirements of Section 53A of the Transfer of Property Act and were not entitled to the protection of the doctrine of part performance. The court found that there was no primary or secondary evidence of the written agreement, the terms of the contract were not ascertainable with reasonable certainty, and the defendants were not willing to perform their part of the contract by paying the balance consideration.
Issues: 1. Whether the defendants were entitled to the protection of Section 53A of the Transfer of Property Act and the doctrine of part performance? 2. Whether the defendants had satisfied all the requirements of Section 53A of the Transfer of Property Act?
Ratio Decidendi: The court held that Section 53A of the Transfer of Property Act confers protection on a party who has entered into possession of immovable property pursuant to an agreement in writing and who has fulfilled certain conditions, even though that party has not acquired a lawful title to the property. However, the court emphasized that all the requisite ingredients of Section 53A must be satisfied for the protection to be available. In this case, the court found that the defendants failed to provide primary or secondary evidence of the written agreement, the terms of the contract were not ascertainable with reasonable certainty, and the defendants were not willing to perform their part of the contract by paying the balance consideration. Therefore, the court held that the defendants were not entitled to the protection of Section 53A and the doctrine of part performance.
Final Decision: The appeal was allowed, the judgment of the lower court was set aside, and the suit was decreed. The defendants were directed to hand over possession of the lands to the plaintiffs, and the plaintiffs were directed to refund the sum of Rs. 4,200/- to the defendants.
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/- 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/- 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.
4. Against this judgment, the plaintiffs filed Civil Appeal No.162 of 1980 before the District Court at Dhule. The learned appellate Judge upheld the contention that the defendants are entitl
