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GAUHATI HIGH COURT
D. PATHAK AND K. N. SAIKIA, JJ.
Abdul Mazid -Appellant
Versus
Burhanuddin Ahmed and others -Respondent
First Appeal No. 53 of 1970
Decided On : 25-07-1979
SPECIFIC PERFORMANCE - PART PERFORMANCE - NOTICE - BONA FIDE PURCHASER - Where a person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continue in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
Fact of the Case:
The suit land with structures thereon belonged to late Nasiben Nesa who died in Sept., 1964, leaving the defendant No. 1 her only son and heir. During her lifetime the defendant No. 1 leased out the suit property the plaintiff on rent of Rs. 40/- per month from 23-6-59 till Aug., 1962. On expiry of the lease the plaintiff remained in possession without paying rent since July, 1963. After the death of Nasiben Nesa in Sept., 1964, on 30-12-64 the defendant No. 1 entered into an agreement in writing with the plaintiff to sell the suit property to the plaintiff for Rs. 9,000/-, received to Rs. 5,000/- as advance, and agreed to execute the sale deed within 3 months on receipt of the balance amount, and formally delivered possession of the property; and further agreed that no rent would be payable from January next. Pursuant to the said agreement, on 13-2-65 the plaintiff and the defendant No. 1 came to Court to execute the deed which was already prepared, but the defendant without executing the same left the place and never came back to execute the same. After repeated demands for execution in vain the plaintiff served a Lawyers notice on the defendant which was replied to and from the reply the plaintiff learnt that the defendant No. 1 meanwhile sold the suit property to the defendants, Nos. 2 and 3. The plaintiff states that the defendants Nos. 2 and 3 knew about the earlier agreement with him. Hence he instituted this suit for specific performance of the contract and for confirmation of possession.
Finding of the Court:
The trial Court decreed the suit against defendant No. 1 for Rupees 5,000/- with proportionate cost on contest but dismissed the suit against defendants Nos. 2 and 3. Hence this first appeal.
Issues: 1. Whether there is any cause of action for the suit ? 2. Whether the defendant No. 1 agreed to sell the property to the plaintiff for Rs. 9,000/- ? 3. Whether the defendant No. 1 received Rs. 5,000/- as advance and executed the document as alleged in the plaint ? 4. Whether the defendant No. 1. failed to fulfil his part of the contract ? 5. Whether the suit property is in possession of the plaintiff ? 6. Whether the plaintiff is entitled to a decree for specific performance of the contract by sale of the suit property to his name ? 7. Whether the defendants Nos. 2 and 3 are the bona fide purchasers for value without notice ? 8. Whether the defendants Nos. 2 and 3 are protected under S.41 of the T. P. Act ? 9. To what relief the parties are entitled ?
Ratio Decidendi: The plaintiff having no title in the suit property is not entitled to be noticed as a title holder. He will be entitled to defend his possession only. It is clear from the records, and admitted by the plaintiff, that on the date of sale i.e. 16-3-1965 the plaintiff was not a tenant. He claimed to have been in possession of the suit property not as a tenant but as a contractee. Rent was not to be paid since January last, and an advance of Rs. 5000/- was allegedly paid in part performance of the contract. He will, therefore, be entitled to protection of his rights attached to that status and not that of a tenant, even if the defendants Nos. 2 and 3 are found to be negligent in not making proper inquiry. It is an accepted principle that part performance can be argued in defence and not in attack. It can be used as a shield and not as a sword.
Final Decision: Appeal dismissed.
SAIKIA, J. :- This plaintiffs first appeal is from the judgement and decree dated 12-6-70 and 25-6-70 respectively, of the Assistant District Judge, Nowgong, in Title Suit No. 26 of 1967, partly decreeing the suit against respondent No. 1 and dismissing the suit against respondents Nos. 2 and 3. The facts of the case, in brief are as follows :
The suit land with structures thereon belonged to late Nasiben Nesa who died in Sept., 1964, leaving the defendant No. 1 her only son and heir. During her lifetime the defendant No. 1 leased out the suit property the plaintiff on rent of Rs. 40/- per month from 23-6-59 till Aug., 1962. On expiry of the lease the plaintiff remained in possession without paying rent since July, 1963. After the death of Nasiben Nesa in Sept., 1964, on 30-12-64 the defendant No. 1 entered into an agreement in writing with the plaintiff to sell the suit property to the plaintiff for Rs. 9,000/-, received to Rs. 5,000/- as advance, and agreed to execute the sale deed within 3 months on receipt of the balance amount, and formally delivered possession of the property; and further agreed that no rent would be payable from January next. Pursuant to the said agreement, on 13-2-65 the plaintiff and the defendant No. 1 came to Court to execute the deed which was already prepared, but the defendant without executing the same left the place and never came back to execute the same. After repeated demands for execution in vain the plaintiff served a Lawyers notice on the defendant which was replied to and from the reply the plaintiff learnt that the defendant No. 1 meanwhile sold the suit property to the defendants, Nos. 2 and 3. The plaintiff states that the defendants Nos. 2 and 3 knew about the earlier agreement with him. Hence he instituted this suit for specific performance of the contract and for confirmation of possession. The defendants contested the suit filing two written statements, one by the defendant No. 1 and another by defendants Nos. 2 and 3. Defendants Nos. 2 and 3 averred that they did not know anything about the earlier contract with the plaintiff, and that they purchased the property with information to the plaintiff who did not object, and that they were bona fide purchasers of the property for value without notice and as such their purchase could not be affected. The defendant No. 1 averred that he never made any agreement with the plaintiff to sell the property; he never delivered possession to the plaintiff pursuant to any agreement and never received any advance. He stated that he first agreed to sell the property to defendants Nos. 2 and a and on receipt of Rs. 2,500/- as advance executed and registered an agreement on 7-1-65 to that effect and thereafter executed his deed of sale on 16-3-65 on receipt of the balance amount and informed the plaintiff by a notice. He further stated that after the sale he delivered possession of the property to the defendants Nos. 2 and 3.
2. Thus while the plaintiff claims specific performance of an agreement dated 30-12-64 to sell the property to him, the defendants Nos. 2 and 8 claimed by a registered deed of purchase dated 16-3-65 pursuant to an agreement to sell dated 7-1-65.
3. On the pleading the following 9 issues were framed :
(1) Whether there is any cause of action for the suit ?
(2) Whether the defendant No. 1 agreed to sell the property to the plaintiff for Rs. 9,000/- ? (3) Whether the defendant No. 1 received Rs. 5,000/- as advance and executed the document as alleged in the plaint ?
Whether the defendant No. 1. failed to fulfil his part of the contract ?
(5) Whether the suit property is in possession of the plaintiff ?
(6) Whether the plaintiff is entitled to a decree for specific performance of the contract by sale of the suit property to his name ?
(7) Whether the defendants Nos. 2 and 3 are the bona fide purchasers for value without notice ?
(8) Whether the defendants Nos. 2 and 3 are protected under S.41 of the T. P. Act ?
(9) To what relief th
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