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1993 Supreme(Ker) 14
Kerala High Court
T.L.VISWANATHA IYER
P.C.Thomas - Appellant
Versus
Laila Beevi - Respondent
Decided On : 01/12/1993
S. Vinkitasubramonia Ayyar Giri V. for Appellants; R. Harikrishnan, for Respondent.
The defendant must unequivocally demonstrate possession in part performance of the contract and willingness to perform obligations under S. 53A of the TP Act.
Headnote:
mortgage redemption - Transfer of Property Act - S. 53A
Fact of the Case:
Plaintiffs sought redemption of a mortgage, but the defendant resisted claiming protection under S. 53A of the Transfer of Property Act, 1882 (TP Act). The trial court rejected the claim, but the appellate court held in favor of the defendant. Plaintiffs appealed.
Finding of the Court:
The defendant was not entitled to the protection of S. 53A as the possession after the execution of the agreement was not in part performance thereof. The defendant was not willing to perform his obligations under the contract.
Issues: Whether the defendant was entitled to the benefit of S. 53A of the TP Act.
Ratio Decidendi: The possession after the execution of the agreement was not in part performance thereof. The defendant was not willing to perform his obligations under the contract.
Final Decision: The second appeal was allowed, and the judgment and decree of the lower appellate court were set aside, restoring those of the trial court. The defendant was ordered to pay the costs of the appellants in this Court and in the lower appellate Court.
This second appeal is by plaintiffs 2 and 3 in a suit for redemption of a mortgage Ext. A1 dated February 10, 1967. A preliminary decree for redemption was passed by the trial court, but it was set aside, and the suit dismissed, on appeal by the defendant. The facts in brief are as follows.
2. The first plaintiff executed a mortgage Ext. A1 on February 10, 1967 to the defendant over the plaint schedule property. The mortgage amount was Rs. 5,000/- repayable within a period of five years. The mortgage was put in possession of the property and he was to appropriate the yield towards the interest on the mortgage. He was to keep possession till the amount advanced was repaid.
3. The first plaintiff later entered into an agreement Ext. B1 dated January 8, 1971 with the defendant for sale of the property to him for a consideration of Rs. 21,000/-. An amount of Rs. 2,000/- was received by the first plaintiff as advance on that day for deposit in O.S. No. 45 of 1956 on the file of the sub Court, Alapusha. After referring to Ext. A1, and the possession of the defendant thereunder, the agreement stipulated that on the defendant paying an amount of Rs. 14,000/- as the balance consideration, after adjusting the mortgage amount of Rs. 5,000/- and the advance of Rs. 2,000/- before the expiry of the term of the mortgage, the first plaintiff will execute the deed of sale to be got prepared by the defendant, either in his name or in the name of any nominee of his. If the first plaintiff committed default in executing the sale, the defendant was at liberty to take proceedings for getting the deed of sale executed (the expenses of which will be reimbursed to him by the first plaintiff out of the balance amount of Rs. 14,000/- due to him). The defendant was thereafter to continue in possession as owner in continuation of his present possession. If, on the other hand, the defendant defaulted in making payment of the balance consideration and getting the deed of sale executed within the time stipulated, the agreement will automatically cease to have effect. In that event, the defendant will have no right to get assignment of the property, and the amount of Rupees 2,000/- paid as advance will be appropriated towards the damages sustained by the first plaintiff.
4. Subsequent to the agreement, the defendant paid an amount of Rs. 1,100/- on June 11, 1971 and another amount of Rupees 1,250/- about the date of which there is dispute whether it was on January 13, 1972 or February 13, 1972. But the fact remains that this amount was paid. The balance consideration was not however paid nor the sale completed pursuant to Ext. B1. The first plaintiff issued notice Ext. A2 on September 15, 1980, expressing his readiness to pay the amount due under the mortgage, and calling upon the defendant to appear in the Sub-Registry Office for executing the deed of release on October 4, 1980. The defendant replied by Ext.A3 dated September 23, 1980 in which he made reference to the agreement Ext.B1 and offered to have the deed of sale executed. But the defendant did not pursue his offer, nor did he comply with the demand made by the first plaintiff in Ext.A2. The suit was therefore filed on October 13, 1980 for redemption of the mortgage and for recovery of possession. Notice of the suit was served on the defendant on December 6, 1980, after which a further reply Ext.A4 dated January 4, 1981 was sent by him to the notice Ext. A2 of the first plaintiff. I may mention here that the original reply Ext. A3 did not refer the possession of the defendant after the date of Ext.B1 to the agreement to sell. But by the reply Ext. A4, the defendant purported to make "amendments" to his reply Ext. A3 by inserting certain statements here and there to the effect that his possession of the mortgaged property after the date of Ext. B1 was referable to the agreement to sell Ext. B1 and not to the mortgage. In the written statement which the defendant filed thereafter, he cl
