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2010 Supreme(Mad) 5081
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
Pappammal (Died) & Others
Versus
Sarojini & Another
SA.No.1049 of 2003
Decided On : 29-11-2010
For the Petitioners: S. Chinnasamy, SC.
For the Respondent:T.M. Hariharan, Advocate.
To claim protection under Section 53A of the Transfer of Property Act, the transferee must demonstrate continuous readiness and willingness to perform their part of the contract from the date of the agreement to the date of the suit.
Headnote:
Trespass - Property Dispute - Transfer of Property Act - Section 53A
Fact of the Case:
The plaintiff filed a suit seeking declaration of no right in the property and delivery of possession, alleging that the defendants were trespassers and liable to pay damages. The defendants claimed possession under an agreement of sale, contending that they were ready and willing to perform their part of the contract.
Finding of the Court:
The courts held that the defendants were never ready and willing to fulfill their part of the contract, and thus, not entitled to the benefit of Section 53A of the Transfer of Property Act. The courts also rejected the defendants' claim of adverse possession.
Issues: The main issues were whether the defendants were entitled to the benefit under Section 53A of the Transfer of Property Act and whether the non-joinder of the plaintiff's mother was fatal to their case.
Ratio Decidendi: The court emphasized that to claim protection under Section 53A, the transferee must prove readiness and willingness to perform their part of the contract from the date of the agreement to the date of the suit. The court also clarified that the existence of the right to claim protection under Section 53A would not be available if the transferee remained passive without taking effective steps.
Final Decision: The Second Appeal was dismissed, affirming the lower courts' findings that the defendants were not entitled to the benefit under Section 53A of the Transfer of Property Act. The defendants were also not entitled to claim adverse possession. No costs were awarded.
The 1st respondent herein/plaintiff has filed the suit in OS.No.2327/1996 to pass a judgement and decree against the appellants 1 to 3 herein/the defendants 1 to 3, (a) declaring that the defendants 1 to 3 have no right in the suit property, (b) for delivery of possession of the suit property to the plaintiff, (c) directing the defendants 1 to 3 to pay past damages of Rs.9600/-, (d) directing the defendants 1 to 3 to pay future damages at the rate of Rs.400/- p.m. from the date of the suit till the date of delivery of possession and (e) for costs.
2. The case of the Plaintiff as set out in the plaint is as follows:- a. The suit property and the other properties belonged to the 4th defendant, namely, N.G.R.Industrial Workers Cooperative Housing Society Limited and only the bona fide members of the Society are eligible to be allotted a property. The father of the plaintiff Chinnaswamy Naidu was the member of the 4th defendant Society and he was allotted the property at Door No.19, in site No.55 in S.Nos.450, 451 and 452/1A Singanallur and he was in possession and enjoyment of the same as an allottee. The father of the plaintiff died on 10.8.1981 leaving behind his widow, Rajamanickam and the plaintiff as his heirs. The mother of the plaintiff has given a consent letter to the 4th defendant Society for transferring the property to the plaintiff and the 4th defendant Society recognised the plaintiff as the lawful owner of the property as per deed of conveyance dated 7.5.1990. The plaintiff has been paying the taxes and other charges to the Coimbatore Corporation. b. The alleged agreement dated 19.11.1978, said to have been entered into between late Chinnaswamy Naidu and one Nachimuthu gounder, who is the husband of the 1st defendant and the father of the defendants 2 and 3 agreeing to sell the suit property to Nachimuthu gounder, is not a true and valid document. Even if the said agreement is true, it will not bind the plaintiff. The alleged agreement of sale is in contravention of the by-laws of the Society, which prohibits any member from assigning, subletting or parting with the possession of the property without prior permission of the Board of Directors of the 4th defendant Society. But, no such permission was obtained by the father of the plaintiff. Therefore, the alleged agreement and the entire transaction are illegal and not enforceable in law and hence, the defendants 1 to 3 are the trespassers and they are liable to pay damages to the plaintiff at the rate of Rs.400/-per month and to pay Rs.9600/- towards past damages and to pay future damages from the date of the suit till the date of delivery of possession at the rate of Rs.400/- p.m. The plaintiff sent a notice dated 14.10.1992 to Nachimuthu Gounder and to the 4th defendant Society. On return of the postal cover, the plaintiff came to know that the said Nachimuthu Gounder died and the 4th defendant Society refused to receive the notice. Thereafter, another notice dated 15.11.1992 was also sent to the defendants 1 to 3. In such circumstances, the suit has been filed.
3. In the Written Statement filed by the Defendants 1 to 3, it is averred as follows:-a. The plaintiff filed the suit with false pleadings in order to deceive and defraud the defendants 1 to 3. The plaintiff and her mother suppressed the notice dated 28.4.1990. The father of the plaintiff entered into an agreement with Late Nachimuthu Gounder for the sale of the suit property and the same was attested by the mother of the plaintiff and three others. Late Nachimuthu Gounder was put in vacant possession of the suit property on 19.11.1978 and he paid amounts as per the terms of the agreement and made improvements in the suit property by spending huge amounts. The defendants 1 to 3 are complying with the terms of the agreement. The father of the plaintiff died intestate leaving behind the plaintiff and her mother and they agreed to execute the sale deed, but took time till the 4th defendant Society
