Back
2011 Supreme(HP) 2246
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Deepak Gupta, Judge.
Smt. Hardei ..Appellant
Versus
Sh.Amin Chand and others ....Respondents
RSA No.52 of 2000.
Decided on: 23.6.2011.
For the Appellant(s):Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate.
For the Respondent(s): Mr.N.S. Chandel, counsel for R-1.
The central legal point established in the judgment is that for a transferee to claim protection under Section 53-A of the Transfer of Property Act, they must have taken possession of the property in part performance of the contract and proved that they have performed or are willing to perform their part of the contract, regardless of the expiry of the limitation period for filing a suit for specific performance.
Headnote:
Section 53-A - Transfer of Property - 53A - Summary of Acts and Sections: Section 53-A of the Transfer of Property Act - The court discussed the provisions of Section 53-A of the Transfer of Property Act, which provides protection to the transferee in possession of the property in part performance of a contract. The court highlighted the requirement for the transferee to have taken possession and performed or be willing to perform their part of the contract to avail the protection under this section. The judgment also referenced key legal interpretations from Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi and Mahadeva and others vs. Tanabai, emphasizing that the expiry of the limitation period for filing a suit for specific performance does not negate the plea raised under Section 53-A. The court also referred to the judgment of the Full Bench of the Bombay High Court in Sadashiv Chander Bhamgare vs. Eknath Pandharinath Nangude, which clarified the maintainability of a suit for injunction seeking protection under Section 53-A of the Transfer of Property Act.
Fact of the Case:
The suit land was originally owned by Pala Ram, who entered into an agreement to sell the property to the defendant. The defendant claimed protection under Section 53-A of the Transfer of Property Act, asserting their right to protect possession despite the expiry of the period for filing a suit for specific performance.
Finding of the Court:
The court found that the defendant failed to prove that they had performed or were willing to perform their part of the contract as required under Section 53-A. The court also dismissed the argument that the plaintiff's failure to mention the agreement to sell in the plaint disentitled them to claim possession.
Issues: The main issue revolved around the defendant's entitlement to protection under Section 53-A of the Transfer of Property Act despite the expiry of the limitation period for filing a suit for specific performance.
Ratio Decidendi: The court emphasized that for a transferee to avail protection under Section 53-A, they must have taken possession of the property in part performance of the contract and proved that they have performed or are willing to perform their part of the contract. The court also highlighted that the expiry of the limitation period for filing a suit for specific performance does not negate the plea raised under Section 53-A.
Final Decision: The appeal was dismissed, and no costs were awarded.
Question 1?
What is the scope of protection under Section 53-A of the Transfer of Property Act for a transferee in possession in part performance?
Question 2?
What must a transferee prove to obtain protection under Section 53-A when facing a suit for possession by the true owner?
Question 3?
Does expiry of the limitation period for filing a suit for specific performance affect the applicability of Section 53-A protections?
Deepak Gupta, J.
1. This Appeal by the defendant is directed against the judgment and decree dated 25th August, 1999 passed by the learned District Judge, Bilaspur whereby he dismissed the appeal of the defendant and upheld the judgment and decree dated 12.12.1989 decreeing the suit of the plaintiff.
2. The undisputed facts are that the suit land was originally owned by Pala Ram . It is also not disputed that Pala Ram entered into an agreement to sell the suit property to Sh.Tulsi Ram, original defendant No.1 for a sum of Rs.400/-. From the facts proved on record it is apparent that out of this amount of Rs.400/-, Rs.290/- was paid at the time when the agreement was entered into between the parties. The proposed vendee was also put in possession of the suit land, though some dispute has been raised as to whether it was Tulsi or Sunder who was in possession. Be that as it may, there is no manner of doubt that the plaintiff has not been found to be in possession of the suit land.
3. The main defence set up by the defendant was that they are in possession of the suit property pursuant to an agreement and therefore in terms of Section 53-A of the Transfer of Property Act they are entitled to protect their possession even though the period for filing a suit for specific performance of the sale deed may have expired and their remedy to file suit for specific performance may have been lost.
4. There can be no dispute with the contention raised by Sh.G.D. Verma, learned senior counsel appearing for the defendant/appellant that a defendant can resist a suit for possession filed by the true owner in case he shows that he has been put in possession by an agreement contemplated under the provisions of Section 53-A of the Transfer of property Act. As held in number of cases, this is a right of defence and not of offence. It is oft said that it can be used as a shield but not as a sword.
5. Section 53-A of the Transfer of Property Act reads thus:
“
53A. Part performance.
Where any person contracts to transfer for consideration any immoveable 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, continues 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.”
6. A bare perusal of this Section shows that when the transferee has, in part performance of the contract, taken possession of the property or continues to be in possession of the property then notwithstanding that the contract was required to be registered but has not been registered, the vendee can continue and protect his possession.
7. The Apex Court in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others, AIR 2002 SC 960, held as follows:
“6. A perusal of Section 53A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part
