1988 Supreme(MP) 656

IN THE HIGH COURT OF MADHYA PRADESH
FAIZAN UDDIN, J.
Mangilal –Appellant
Vs.
Gendalal – Respondent
S.A. No. 335 of 1975 (I)
Decided on : 09-02-1988

Headnote:(1) Transfer of Property Act, 1882 – S. 53 – A – protection of doctrine of part performance – not available against the person not signing the agreement.

       (2) Transfer of Property Act, 1882 – S. 51 – Evidence Act, 1872 – S.115 – principles of estoppel under both the provisions – scope of S.115 is wider.

       (3) Evidence Act, 1872 – S.115 – House built in mistaken belief by defendants – plaintiffs despite in knowledge not raising objection – principle of estoppel applies.

        Short Note

       1. The Lower appellate Court held that the deceased – plaintiff No.1 Gendalal alone had entered into a contract for sale of his half share in the Khandhar land to the defendants but the deceased – plaintiff No.2 Keshrimal had not sold his half share. The Lower appellate Court, therefore, passed a decree for possession of entire Khandhar land in favour of Keshrimal and directed the defendants – appellants to file a suit for partition for half share which gave rise to this appeal by the defendants.

       2. Held: Learned counsel for the defendants – appellants first contended that the agreement dated 1 – 2 – 64 (Ex. P.4) is a contract for sale of the land to the defendants executed by deceased – plaintiff No.1 Gendalal, the elder brother of deceased – plaintiff No.2 Keshrimal, on behalf of both the plaintiffs and therefore, the same was binding on both the deceased – plaintiffs. He, therefore urged that the defendants – appellants were entitled to protect their possession by virtue of the provisions contained in section 53 – A of the Transfer of property Act. I find myself unable to accept this contention because admittedly in order to defend the possession by invoking the doctrine of part performance contained in section 53 – A of the Transfer of Property Act, it is the first requisite that there should be an agreement in writing signed by the vendor himself or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and vendee in part performance of that contract has taken possession of the property or in part thereof, and further vendee has either performed or wiling to perform his part of the contract. In the present ease admittedly the deceased – plaintiff No.2 Keshrimal had not signed the agreement dated 1 – 2 – 1964 (Ex. p.4); but it is signed by his elder brother Gendalal alone. The signature of Gendalal on the agreement (Ex. p.4) cannot be regarded on behalf of Keshrimal. Consequently the doctrine of part performance envisaged in section 53 – A of the Transfer of Property Act cannot be pressed into service against the deceased – plaintiff No.2 Keshrimal to defend the possession of the defendants. It is available only against deceased plaintiff No.1 Gendalal who had entered into the contract for sale of his share in the land by agreement dated 1 – 2 – 1964 as well as by subsequent agreement dated 4 – 2 – 1964 (Ex. p. 5) as held by the learned lower appellate Court.

       3. Learned counsel for the defendants – appellants next urged that in any case, the defendants – appellants had built their house on the plot in suit which was completed as far back as 1965 to the knowledge of the both the deceased – plaintiffs and the deceased – plaintiffs including Keshrimal having allowed the defendants – appellants to build their house without protest, they are estopped from claiming possession by virtue of doctrine of 'standing by' or equitable doctrine of estoppel by acquiescence. Having heard the learned counsel for the parties on this point. I find considerable force in the submission made by the learned counsel for the appellants.

       4. Before going into the question whether the defendants raised the construction of their house to the knowledge of the deceased – plaintiffs and yet they stood by and did not object, it would be useful to first examine the principles of doctrine of standing by or in other words the equitable doctrine of estoppel by acquiescence. It may be pointed out that equitable estoppel by acquiescence may be applied and is referable to section 51 of the Transfer of Property Act, as well as section 115 of the Evidence Act. Section 51 of the Transfer of Property Act relates to the payment of the value of the improvement made in the immoveable property or sale of the interest at the prevailing market price in case of improvements made by bona fide holders of the immoveable property under the defective title, whereas section 115 of the Evidence Act deals with the principle of estoppel when one person, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true or to act upon such belief. Thus, the scope of principle of estoppel under section 115 of the Evidence Act is much wider than the one contemplated in section 51 of the Transfer of Property Act which is an extension of equitable doctrine of estoppel by acquiescence. Estoppel by acquiescence occurs when the person having a better title knows facts which are unknown to other person acting in violation of the right which those facts give and does not inform them about it but stands by and permits such other person to run into a trap.

       5. In order to raise and substantiate the plea of estoppel by acquiescence against the plaintiff, the following conditions must be fulfilled :

       (i) the defendant must have made a mistake about his rights:

       (ii) the plaintiff who has the better title must know of the existence of his own right which is inconsistent with that claimed by the defendant;

       (iii) the plaintiff must know that the defendant has made a mistake as to his right;

       (iv) the defendant must have expended money or done some act on the faith of his mistaken belief;

       (v) the plaintiff must have encouraged the defendant to spend the money or do the act either directly, or by abstaining from asserting his right.

       6. Now having dealt with the question regarding the facts and circumstances in which the principle of equitable estoppel may be pressed into service, I shall now examine whether the said principle is attracted to the facts of the present case or not. A perusal of the statement of the deceased – plaintiff No.1 Gendalal would go to show that he admitted that he had executed both the agreements dated 1 – 2 – 64 (Ex. P.4) as well as Ex. P.5 dated 4 – 2 – 64 and had received Rs. 600/ – as his part of the consideration of the Khandhar in suit. A perusal of the agreement dated 1 – 2 – 64 (Ex. P. 4) would go to show that its tenor indicates that it was executed on behalf of both the deceased – plaintiffs, namely, Gendalal and Keshrimal but it was signed by Gendalal alone. Further, a perusal of the second agreement dated 4 – 2 – 1964 would go to show that in the last but one paragraph, it recites that Gendalal had received a sum of Rs.200/ – from the defendants for payment to his younger brother Keshrimal towards his half share in the Khandhar in dispute which was agreed to be sold to the defendant. In the agreement (Ex. P.5) executed by Gendalal the recitation of the fact that he had received Rs. 200/ – for payment to Keshrimal towards his half share in the Khandhar was sufficient to give rise to the belief. apart from the question of actual payment of Rs. 200/ – to Keshrimal, that Keshrimal had also agreed for transfer of his part of the Khandhar land and that defendants had contracted for purchase of the entire Khandhar with both the brothers which fulfills one of the conditions necessary for the application of estoppel by acquiescence.

       7. This apart Gendalal as P.W.1, admitted in his deposition that after the death of his father he has visited his village Kesur 5 – 6 times, Plaintiff No.2 Keshrimal as P.W. 2 also deposed that his brother Gendalal used to visit village kesur to recover rent. He also admitted in paragraph 3 of his deposition that he had also gone to the village 4 – 5 times after the death of his father and that he had learnt in the year 1966 that the defendant – appellant Mangilal was constructing a house on their Khandhar land. As against this Sidhnath (D.W.1) a witness of the same village Kesur, deposed that the defendant – appellants had built their house before 8 years back which had taken about a year for its completion. That means the construction had already completed before 1966. Similar is the statement of another witness Shankerlal (D.W. 2) residents of the same village Kcsur and 'Narsingh (D.W. 3) besides the statement of defendant Mangilal himself as (D.W. 4), from this evidence, it is definite that the construction of the house had completed some time before the year 1966.

       8. It is also an admitted fact that both the deceased – plaintiffs had, gone to a counsel and instructed for issuance of a notice to the defendants – appellants and that Ex. P. 6 is a copy of that notice. A perusal of the statement of the plaintiffs as P.W.1 and P.W. 2 and the contents of the notice Ex.P.6 will go to show that the plaintiffs did not come to the Court with clean hands. According to the contents of the paragraph 3 of the said notice (Ex. P. 6) given on the instructions of keshrimal the defendants had commenced the construction at the time when the notice was given in November, 1970 which is patently false on the face of it, as Keshrimal (P.W. 2) in paragraph 3 of his deposition clearly admitted that he had already learnt in 1966 that the defendants were constructing a house over the Khandhar land while in fact the house was, in any case, completed in 1966.

       9. It is also worthy of note that though the plaintiffs had issued a notice (Ex. P – 6) on 20th November, 1970. Yet no suit was instituted by the plaintiffs immediately, but it was instituted on 16 – 3 – 1971. Thus from the evidence discussed above, it is clear that the defendants while constructing the house had acted under mistaken belief about their right that they had purchased from both the plaintiffs and proceeded with the construction over the Khandhar to the knowledge of the plaintiffs and the plaintiffs knowing that the defendants were making the construction of their house, did not raise any objection during the progress of the construction but issued the notice years after the house was already built. In these circumstances, the doctrine of equitable estoppel of acquiescence applied on all fours and, therefore, no decree for possession after demolition of the hour, could be passed in favour of the plaintiffs. AIR 1972 PC 108, AIR 1937 All 512 & AIR 1980 Gauhati 70 relied on. AIR 1970 SC 426 and 1982 MPWN 356 distinguished.

       Appeal allowed.