Bombay High Court
Kashiram S/O. Wadgu Mundale & ... vs Mansaram S/O. Tulshiram Mundale ... on 24 February, 2016
Bench: A.B. Chaudhari
sa.163.01
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 163/2001
1) Kashiram s/o Wadgu Mundale
Aged about 73 years, occu: Cultivator
2) Sitaram w/o Wadgu Mundale
Aged about 69 years, occu: Cultivator.
Both R/o Mauza Chapegadi
Tah. Kuhi, Dist. Nagpur. . ... APPELLANTs
v e r s u s
1) Mansaram s/o tulshiram Mundale
since Deceased : Through his LRs :
1A. Smt. Manjulabai wd/o Mansaram Mundale
Aged about 46 years, occu: Household.
1B. Ishwar s/o Mansaram Mundale
Aged about 26 years
1C. Dnyaneshwar s/o Mansaram Mundale
Aged about 24 years
1D. Ku.Rekha d/o Mansaram Mundale
Aged about 21 years
All R/o Mouza Chapegadi
Tah.Kuhi, Dist. Nagpur.
2) Gangadhar @ Gangaram s/o Tulshiram Mundale
Aged 51 years, occu: Cultivator.
3) Wasanta s/o Tulshiram Mundale
Aged about 46 years,m occu: Cultivator
::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 06:26:58 :::
sa.163.01
2
Nos. 2 asnd 3 R/o Mouza Chapegadi Tah.Kuhi
Dist. Nagpur. .... RESPONDENTS
...........................................................................................................................
Mr. A.C.Dharmadhikari, Advocate for the appellants
Though served, none present for Respondents
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 24th February, 2016
JUDGMENT:
1.
Being aggrieved by the judgment and decree dated 14th
March 2001 in Regular Civil Appeal No.30/2000 made by the learned
7th Additional District Judge, Nagpur, by which the lower Appellate Court
reversed the judgment and decree dated 29.11.1999 in Regular Civil Suit
No.32/1994 passed by the Civil Judge, Jr. Dn., Kuhi and decreed the suit
filed by the respondents/plaintiffs, the present Appeal was filed by the
original defendants.
2. Field Survey No.22(old) Gut No.11 admeasuring 6.44 acres
situated at Mouza Savangi, Tah.Kuhi, District: Nagpur was originally owned
by Mansaram, along with his father Tulshiram and uncle Bala. The appellants
agreed to purchase the said suit field vide an agreement of sale dated
17.9.1967 for a consideration of Rs. 4,000/- and the said agreement was
executed by all the owners - Mansaram, Tulshiram and Bala. The entire
amount of consideration, namely, Rs. 4000/- was paid and was received by
sa.163.01
the respondents and the possession was also handed over to the appellants.
Regular Civil Suit No. 93/1975 was filed by the appellants for specific
performance of contract of sale dated 17.9.1967 but the suit was dismissed;
so also the Appeal preferred before the lower Appellate Court. It is the case of
the respondents that after dismissal of their Suit for specific performance of
contract, they filed Suit for possession as the appellants refused to hand over
the possession and, therefore, the suit in question, namely, RCS No. 34/1994
was filed for possession and damages, on the ground that the appellants had
no right to retain the possession. The trial Court dismissed the Suit. The lower
Appellate Court, in Appeal preferred by the respondents, allowed the Appeal
and held that the appellants were not entitled to retain the possession after
having lost in the suit for specific performance of contract and, therefore, the
decree for possession in favour of respondents was required to be passed and
accordingly the suit was decreed. Hence this Second Appeal.
ARGUMENTS:
3. In support of the Appeal, Mr A.C.Dharmadhikari, learned counsel
for the appellants vehemently argued that though it is true that the
appellants took the plea of adverse possession as well as Section 53-A of the
Transfer of Property Act,1882 ( "T.P.Act" in short ) to remain in possession, by
way of shield, and though it is a fact that their suit for specific performance
was dismissed, the lower Appellate Court could not have decreed the suit for
possession as admittedly the entire amount was paid and there was nothing
sa.163.01
further to be done, except registration of the sale deed. The payment by the
appellants of entire amount of Rs. 4000/- towards total consideration and
voluntary acceptance thereof by respondent was a clear indication that the
appellants had already performed their part of the contract and that the
entire payment made by the appellants clearly answered the requirement of
Section 53A of the T.P.Act. He relied on the decision of the Hon'ble Supreme
Court in the case of Shrimant Shamrao Suryawanshi and another vs.
pralhad Suryawanshi : (2002) 3 SCC 676 and single Judge of this Court in
the case of Sakharam Dhale (Died) through LRs vs. Parasram Narayan
Shahagadkar in Second Appeal No. 317/1990 dated 21.08.2013. He
submitted that the decision of the Supreme Court in the case of
S.S.Suryawanshi (supra) came after the lower Appellate Court delivered its
judgment in the year 2001. Therefore, there was no occasion to cite the said
judgment before the lower Appellate Court.
4. None appears for the respondents though served.
5. The substantial questions of law, in my opinion, that arise for
consideration is as under :-
"(i) Whether the appellants by way of shield were entitled to
protect their possession u/s. 53-A of the T.P.Act, having paid the
entire amount of consideration of Rs. 4000/- and received the
possession of the suit property despite their failure in their
earlier suit for specific performance of the same contract? ..Yes
sa.163.01
(ii) Whether the appellants satisfy the
requirements/ingredients of Sec.53A of the T.P. Act to enable him
to claim the protection? ..Yes.
(iii) What order : The Second Appeal is allowed."
6. With the assistance of learned counsel for the appellants, I have
perused the reasons recorded by the lower Appellate Court. At the outset, I
agree with the learned lower Appellate Court that the plea of adverse
possession set up by appellant was rightly rejected and needs no further
consideration. However, insofar as the legal question as to the right to
remain in possession of the suit land in part performance of contract claimed
by the appellants, I find that there is no dispute about the fact that the
appellants were put in possession under the written agreement of sale
voluntarily by the respondents and they are in possession since the date of
agreement i.e.17.09.1967. It is further not in dispute that the total
consideration agreed was Rs. 4000/- and the entire amount was paid to the
respondents, which the respondents admitted to have received. It is thus clear
that nothing further except registration of sale deed remained to be done,
for the obvious reason that the entire amount of consideration was paid and
possession was given. The question of registration of sale deed would have
arisen had the respondents offered to execute the sale deed, since in that
case, the appellants having paid the entire amount of consideration of Rs.
4000/- nothing further was required to be paid, except the stamp duty and
sa.163.01
registration charges, which would have been paid to Government, had the
respondents offered to execute the sale deed. It is thus clear that the
appellants had performed the part of their contract, since they had paid the
entire amount of consideration which fact is not in dispute. In this
connection, the Apex Court, in the case of Maneklal Mansukhbai vs.
Hormusji Ginwala reported in AIR 1950 SC 1, held thus :
" The defendant and his predecessor in interest were willing to
perform their part of the contract. As a matter of fact, they have
performed the whole of it. All that remains to be done is the
execution of a lease deed by the lessor in favour of the lessee
and of getting it registered."
7.
The lower Appellate Court framed the following points for
determination in this context :
"(iv) Whether the respondents are entitled for protection
under Section 53A of the Specific Relief Act? ..No"
The lower Appellate Court decided the point by holding that
since the suit for specific performance of contract filed by the appellants was
dismissed and that decree had become final, it was liable to be presumed
that the appellants were not ready and willing to perform part of their
contract. It is not in dispute that the appellants have been admittedly in
sa.163.01
possession pursuant to agreement of sale in their favour inasmuch as they
have paid the entire amount of consideration.
Section 53-A of the T.P. Act reads thus:
" 53-A : Part performance - Where any 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, 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 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.)"
Section 16(c) of the Specific Relief Act, 1963 reads thus:
"16(c) : who fails to aver and prove that he has performed or
sa.163.01
has always been ready and willing to perform the essential
terms of the contract which are to be performed by him, other
than terms the performance of which has been prevented or
waived by the defendant.
Explanation : for the purposes of clause (c)-
(i) where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the defendant
or to deposit in Court any money except when so directed by
the Court;
(ii) the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction."
8. It is clear, in the instant case, as per Sec. 53-A of the T.P. Act
the transferee in part performance of contract took the possession of the suit
property and had done some act in furtherance of the contract and the
transferee also had performed his part of the contract by paying the entire
consideration of Rs.4,000/-. Thus, the language used in the context of the
facts of the present case, in Section 16(c) of the Special Relief Act and u/s
53-A of the T.P. Act differs. The requirement of Section 53-A is that the
transferee is required to do some act in furtherance of the contract and the
transferee has performed his part of the contract. Upon examining the legal
position in the light of the above and applying the same in the facts of the
present case, I find that the appellants admittedly are in possession of the
suit property pursuant to the contract and have done some act of cultivating
sa.163.01
the field in furtherance of the contract and fully performed their part of the
contract by paying the entire amount of Rs. 4,000/- i.e. total consideration
which the appellants admittedly received and it is only thereafter they were
put in possession. It is unfathomable as to what more required to be done by
the transferee in possession of the suit property since it was for the
respondents to thereafter formally execute the sale deed by registering the
same with the registering authority. But then admittedly, the respondents did
not register the sale deed. In this connection, I think the decision in the case
of Shrimant Suryawanshi ( supra ) would be apt and it will be useful to
reproduce the relevant paragraphs from the said judgment. In the facts of
that case, the suit for specific performance of contract and agreement was
barred by limitation, but the Apex Court protected the possession u/s 53-A of
the T.P. Act. I quote the following paragraphs :
12. In England, the provisions of the law of the Statute of Fraud
provided that no suit or action would be brought on agreement
relating to a property which was not in writing signed by the parties.
The aim and object of the statute was to protect a party against
fraud. However, certain difficulties were experienced when it was
found that under an oral agreement a party has performed his part of
the contract, yet he was unable to bring any action or suit against
other party viz., transferor for a specific performance of the
agreement which was not in writing in view of the provisions
contained in the Statute of Fraud. Under such situations, transferors
managed to play fraud on innocent buyers who entered into an oral
sa.163.01
agreement and performed their part of the contract. In view of such
prevailing circumstances in England, the Court of Equity intervened
on the ground of equity and took action to enforce specific
performance of a parole agreement. The view taken by the Court of
Equity was that the object behind the Law of Property of the Statute
of Fraud was to protect against a fraud, but the provisions of Law of
Property of Statute of Fraud were being used as an instrument to
help and protect fraud. Thus, the Court of Equity did not permit the
Statute of Fraud to be used as an instrument to cover the fraud by
the transferors where there was a part performance of a parole
agreement.
13. When the Transfer of Property Act was enacted, Section 53-A
did not find place in it. In the absence of Section 53-A, there arose
difference of opinion between various courts in India as regards the
application of English doctrine of part performance of contract as it
was then prevailing in England. Since there was a difference of
opinion on question of the application of English equitable doctrine
of part performance in various courts of India, the Govt. of India
resolved to set up a Special Committee for making recommendations
amongst others whether the British equitable doctrine of part
performance be extended in India also. The Special Committee was
of the view that an illiterate or ignorant buyer who had partly
performed his part of contract required statutory protection. The
Committee was of the further view that where a transferee in good
faith that lawful instrument i.e. a written contract would be executed
by the transferor takes possession over the property, the equity
demanded that the transferee should not be treated as trespasser by
the transferor and subsequently evict him through process of law in
the absence of lawful transfer instrument. The Special Committee
also considered the question whether protection under the proposed
sa.163.01
Section 53-A to a transferee would also be available even if the
period of limitation for bringing an action for specific performance of
an agreement to sell has expired. On the said question, the
Committee was of the view that even after expiry of period of
limitation, the relationship between the transferor and transferee
remains the same as it was within the period of limitation and,
therefore, the possession over the property taken in part performance
of an agreement is required to be protected even if the period of
limitation for bringing an action for specific performance has
expired.
14. The aforesaid recommendation of the Special Committee were
accepted by the Govt. of India as the same is well reflected in the
aims and objects of amending Act 1929 whereby Section 53-A was
inserted in the Act.
15. The Special Committee's report which is reflected in the aims
and objects of amending Act 1929 shows that one of the purposes of
enacting Section 53-A was to provide protection to a transferee who
in part performance of the contract had taken possession of the
property even if the limitation to bring a suit for specific performance
has expired. In that view of the matter, Section 53-A is required to be
interpreted in the light of the recommendation of Special
Committee's report and aims, objects contained in amending Act
1929 of the Act and specially when Section 53-A itself does not put
any restriction to plea taken in defence by a transferee to protect his
possession under Section 53-A even if the period of limitation to bring
a suit for specific performance has expired.
16. But there are certain conditions which are required to be
sa.163.01
fulfilled if a transferee wants to defend or protect his possession
under Section 53-A of the Act. The necessary conditions are
1) there must be a contract to transfer for consideration any
immovable property;
2) the contract must be in writing, signed by the transferor, or by
someone on his behalf;
3) the writing must be in such words from which the terms necessary
to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take
possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the
contract; and
6) the transferee must have performed or be willing to perform his
part of the contract.
17. We are, therefore, of the opinion that if the conditions
enumerated above are complied with, the law of limitation does not
come in the way of a defendant taking plea under Section 53-A of
the Act to protect his possession of the suit property even though a
suit for specific performance of a contract has barred by limitation.
18. The matter may be examined from another angle. The
established rule of limitation is that law of limitation is not
applicable to a plea taken in defence unless expressly a provision is
made in the statute. The law of limitation applies to the suits and
applications. The various articles of the Limitation Act
show that they
do not apply to a defence taken by a defendant in a suit. Thus, the
law of limitation bars only an action in a court of law. In fact, what
the Limitation Act does is, to take away the remedy of a plaintiff to
enforce his rights by bringing an action in a court of law, but it does
sa.163.01
not place any restriction to a defendant to put forward any defence
though such defence as a claim made by him may be barred by
limitation and cannot be enforced in a court of law. On the said
principle, a defendant in a suit can put forward any defence though
such defence may not be enforceable in a court of law, being barred
by limitation.
19. In M.K. Venkatachari & Ors. vs. I.A.R. Arunachalam Pillai &
Ors. AIR 1967 Madras, 410, it was held, thus:
"that defence to limitation is a creature of a positive law and,
therefore, cannot be extended to cases which do not strictly fall
within the enactment. It is an established canon of construction of
law of limitation not to enlarge the scope of statutory provisions of
limitation by analogy or logic".
20. It is, therefore, manifest that the Limitation
Act does not
extinguish a defence, but only bars the remedy. Since the period of
limitation bars a suit for specific performance of a contract, if
brought after the period of limitation, it is open to a defendant in a
suit for recovery of possession brought by a transferor to take a plea
in defence of part performance of the contract to protect his
possession, though he may not able to enforce that right through a
suit or action.
21. In the present case, it is not disputed that the transferee has
taken possession over the property in part performance of the
contract. It is also not disputed that the transferee has not brought
any suit for specific performance of the agreement to sell within the
period of limitation. It is also not disputed that the transferee was
always and still ready and willing to perform his part of the contract.
sa.163.01
Further, the view taken by the High Court in judgment under appeal
was overruled by the Full Bench of the Bombay High Court in the
case of Mahadeo Nathuji Patil vs. Surajbai Khushal Chand Lakkad &
Ors. - 1994 Maharashtra Law Journal, 1145, which, according to our
view, lay down the correct view of law. In that view of the matter
these appeals deserve to be allowed.
22. Since the High Court has allowed the appeals solely on the
ground that the remedy for bringing a suit for specific performance is
lost, therefore, the defendant is not entitle to protect his possession
under Section 53-A of the Act, we, after setting aside the judgment
under challenge, send the matters back to the High Court to decide
any other question of law, if arises in these appeals."
In my opinion, the suit for specific performance being time-
barred, as in the facts of Shrimant Suryawanshi ( supra), and the suit for
specific performance having been dismissed in the case at hand for want of
readiness and willingness (for not paying Rs. One thousand extra over and
above the agreed price), would stand on the same footing. Hence, the said
Apex Court decision will have application this case.
9. In the light of the above decision, I think both the substantial
questions of law will have to be answered in the affirmative, in favour of the
appellants. At any rate, the respondents received the entire amount of
consideration way back in the year 1967 and thereafter appellants were put in
sa.163.01
possession and the appellants have obviously developed the property by
putting their efforts and by investing for so many years. They are therefore
entitled to protect their possession by way of shield as held by the Apex Court,
supra. In the result,the Appeal must succeed. Hence, I make the following
order:
ORDER
1) Second Appeal No. 163/2001 is allowed.
2)
The impugned judgment and decree dated 14th March l,2001 in Regular
Civil Appeal No. 30/2000 made by the learned 7th Additional District Judge,
Nagpur, is set aside.
3) The judgment of decree dated 29.11.1999 in Regular Civil Suit No.
32/1994 made by the learned Civil Judge, Junior Division, Kuhi, is restored.
4) No order as to costs.
JUDGE
sahare
