Panchi Devi vs Omwati
2011 Latest Caselaw 3247 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 11.07.2011

+           CS(OS) No.1445/2010

PANCHI DEVI                                      .....Plaintiff

                            - versus -

OMWATI                                           .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr. Sacchin Puri
For the Defendant:      Mr. Akhilesh

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                          No.

2. To be referred to the Reporter or not?                   No.

3. Whether the judgment should be reported
   in Digest?                                               No.

V.K. JAIN, J. (ORAL)

IA 3237/2011 (O.8 R.1 & 10 CPC)

1. This is a suit for recovery of possession, arrears of

rent and damages for use and occupation.

2. The case of the plaintiff is that she is the owner of

the third floor (Left Side) of property No.4/22, WEA, Karol

Bagh, New Delhi, which she let out to the defendant in

June, 2002. It is also alleged that the last rent paid by the

defendant was Rs.13,000/- per month. The tenancy of the

defendant is alleged to have been terminated vide legal

notice dated 03.06.2010. The plaintiff has now claimed

possession of the premises which was let-out to the

defendant, along with arrears of rent amounting to

Rs.8,780/- for the period from 01.06.2010 to 22.06.2010

and damages for use and occupation with effect from

21.06.2010 at the rate of Rs.1 lakh per month.

3. It has been alleged in the written statement that in

June, 2002, the plaintiff and her son Naval Kishore

Khandelwal requested the husband of the defendant,

namely, Shri Parmanand, to purchase and occupy the third

floor (Left Side) of property No.4/22, WEA, Karol Bagh, New

Delhi, which they had illegally constructed, for a total

consideration of Rs.20 lakhs. They also agreed that the

husband of the defendant could purchase the property in

the name of the defendant and the sale consideration could

be paid in instalments. According to the defendant, the

amount of sale consideration was thereafter paid partly in

instalments though the receipts issued by the plaintiffs

indicated that the amount paid to her was rent. It is also

alleged that a sum of Rs.50,000/- was taken by the plaintiff

and her son from the defendant, through her husband for

the purpose of meeting expenses of MCD. It is further

alleged that the defendant gave jewellery worth

Rs.13,50,000/- to Mr. Manoj, brother of the plaintiff and

she has always been ready to adjust the price of that

jewellery against the sale consideration. Thus, according to

the defendant, the entire sale consideration stands paid in

the form of (i) jewellery for Rs.13,50,000/-; (ii) a sum of

Rs.50,000/- paid for MCD purpose and (iii) the balance

amount paid in instalment. The defendant has thus set up

an oral Agreement to Sell in her favour. The defendant has

also filed a counter-claim seeking specific performance of

the oral agreements alleged to have been executed by the

plaintiff in her, favour for sale of the aforesaid premises to

her for consideration of Rs.20 lakhs.

4. The plaintiff has filed IA 3237/2011 for passing a

decree on the basis of the admission made by the defendant

in the written statement. The application has been opposed

by the defendant.

5. The notice dated 03.06.2011 was sent by the

plaintiff to the defendant, through her counsel. Vide this

notice, the tenancy of the defendant was terminated with

effect from 15th day of the receipt of the notice and she was

asked to hand over the physical possession of the premises.

This notice was followed by a reminder notice dated

23.06.2010. The notice was replied by the defendant,

through counsel, on 26.06.2010. It is thus an admitted

case that the legal notice dated 03.06.2010 stands duly

served on the defendant.

6. In view of the provisions contained in Section

106(1) of Transfer of Property Act, the tenancy, being for

residential purpose and being a tenancy from month to

month, was terminable, on the part of either lessor or

lessee, by giving 15 days' notice. Sub-Section (2) of Section

106 of the Act provides that the period mentioned in sub-

Section (1) shall commence from the date of the receipt of

the notice. Sub-Section 3 provides that the notice shall not

be deemed to be invalid merely because the period

mentioned therein falls short of the period specified under

sub-section (1), provided the suit or proceeding is filed after

the expiry of the period mentioned in sub-section (1). Since

the suit has been filed on 13.07.2010, more than 15 days

after the notice dated 03.06.2010 was replied by the

defendant, the termination of the tenancy is legal and in

accordance with the provisions contained in Section 106 of

Transfer of Property Act.

7. As regards the oral Agreement to Sell, pleaded by

the defendant, the law does not protect the possession of a

person who claims to have obtained it under an oral

Agreement to Sell in his favour. Section 53A of Transfer of

Property Act reads as under:-

"53A. 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 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]."

It would be seen that the possession of a person is

protected under Section 53A of the Act only if he claims it

under a written contract to transfer the property to him for

consideration. Unless a written agreement is set up, the

provisions of Section 53A of the Act do not come into play

and consequently, the person claiming possession under the

oral agreement is not entitled to defend his possession.

8. In Nathulal v. Phool Chand 1970 2SCR 854,

Supreme Court while interpreting Section 53-A culled out

the following conditions to be fulfilled for making out the

defence of part performance to an action in ejectment by the

owner, as under:-

(i) that the transferor has contracted 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;

(ii) that 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;

(iii) that the transferee has done some act in

furtherance of the contract; and

(iv) that the transferee has performed or is willing to

perform his part of the contract.

In Sardar Govindrao Mahadik v. Devi Sahai 1982

2SCR 186, it was reiterated that to qualify for the protection

of the doctrine of part performance it must be shown that

there is an agreement to transfer of immovable property for

consideration and the contract is evidenced by a writing

signed by the person sought to be bound by it and from

which the terms necessary to constitute the transfer can be

ascertained with reasonable certainty.

Supreme Court in Rambahu Namdeo Gajre v.

Narayan Bapuji (2004) 8 SCC 614, held that the doctrine of

part performance aims at protecting the possession of such

transferee provided certain conditions contemplated by

Section 53-A are fulfilled. These conditions are:

(i) there must be a contract for transfer for

consideration of any immovable property,

(ii) the contract must be in writing, signed by the

transferor or someone on his behalf,

(iii) the writing must be in such words from which

the terms necessary to construe the transfer may be

ascertained,

(iv) the transferee must in part performance of the

contract take possession of the property, or of any

part thereof,

(v) the transferee must have done some act in

furtherance of the contract, and

(vi) the transferee must have performed or be willing

to perform his part of the contract.

9. Thus, if the plea taken by the plaintiff is accepted,

the possession of the defendant is unauthorized, her

tenancy have been terminated. If the plea set up by the

defendant is accepted, her possession is still unauthorized

since she is not claiming a written agreement in her favour

and the possession under an oral agreement is not

protected by Section 53A of the Act.

10. For the reasons given in the preceding paragraphs,

the decree for recovery of possession of third floor (Left Side)

of property No.4/22, WEA, Karol Bagh, New Delhi, is hereby

passed in favour of the plaintiff and against the defendant.

11. The suit of the plaintiff to the extent it relates to

arrears of rent and damages for use and occupation as well

as the counter-claim of the defendant for specific

performance of the oral agreement pleaded by her will

however continue.

The application stands disposed of.

CS(OS) No.1445/2010

The matter be listed before the Joint Registrar for

admission/denial of documents on 29th August, 2011 and,

thereafter before the Court on 22nd December, 2011 for

framing of issues.

(V.K. JAIN) JUDGE

JULY 11, 2011 'sn'/Ag