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CASE NO.:

Appeal (civil) 4610 of 2000

PETITIONER:

Rambhau Namdeo Gajre

RESPONDENT:

Narayan Bapuji Dhotra (dead) through Lrs.

DATE OF JUDGMENT: 25/08/2004

BENCH:

Ashok Bhan & S.H. Kapadia

JUDGMENT:

J U D G M E N T

BHAN, J.

Defendant/appellant (hereinafter referred to as "the appellant")

has filed this appeal against the judgment of the High Court in

Second Appeal No. 205 of 1984 whereby the High Court reversing

the judgment and decree passed by the first Appellate Court has

restored the order passed by the Civil Court, Jalna in Suit No. 184 of

1974. The Trial Court had decreed the suit filed by the Narayan

Bapuji Dhotra, (deceased) now represented through his Legal

representatives (hereinafter referred to as "the respondent").

The property in dispute is agricultural land bearing Survey No.

94 admeasuring 18 acres and 23 gunthas situated at Village

Jambwadi, Taluka Jalna in the State of Maharashtra. Respondent

who was the owner of the suit land filed the Suit for possession of the

land with the averment that the appellant had wrongfully

dispossessed him of the suit land in April, 1965. According to him, he

was the owner of the suit land which was his self-acquired property.

It was averred that in the Special Civil Suit No. 20 of 1962 filed by his

brother for partition and possession of the ancestral property, the suit

land along with other lands was left to his share.

Appellant resisted the suit contending, inter alia, that under an

agreement of sale dated 16.6.1961 Narayan Bapuji Dhotra, original

plaintiff, and his brother Manohar agreed to sell the suit land to

Pishorrilal Punjabi who paid the entire amount of consideration and

was put in possession of the land in part performance of the

agreement of sale. That Pishorrilal executed an agreement of sale of

the suit land in favour of the appellant on 1.9.1961. That he paid the

entire amount of the consideration to Pishorrilal and was put in

possession of the suit land by Pishorrilal in part performance of the

agreement dated 1.9.1961. It was contended that since he was in

possession of the suit land in part performance of the agreement, he

was entitled to protect his possession in terms of Section 53-A of the

Transfer of Property Act (hereinafter referred to as "the Act").

Trial Court upon consideration of the evidence on record came

to the conclusion that a mere contract of sale is incapable of creating

any right or title in favour of the transferee. That no right or interest

was created in the suit land in favour of Pishorrilal by virtue of the

agreement of sale dated 16.6.1961. That the original agreement of

sale between Narayan Bapuji Dhotra and Pishorrilal was not placed

on the record and the certified copy produced as Exhibit 16/1D had

not been proved. That the appellant had failed to exercise due care

in ascertaining the title of Pishorrilal before entering into an

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agreement of sale with him. It was highly improbable that the

appellant had no knowledge about the pendency of the suit between

the plaintiff and his brother and Pishorrilal. It was also held that the

appellant could not defend his possession under Section 53-A of the

Act as against the plaintiff/respondent. In view of the findings

recorded the trial Court proceeded to pass the decree for possession

in favour of the respondent.

Aggrieved against the judgment and decree passed by the Trial

Court, the appellant filed an appeal. The first appellate Court taking a

different view set aside the judgement of the trial Court and dismissed

the suit filed by the plaintiff/respondent. The first Appellate Court

came to the conclusion that the appellant had acquired an equitable/

possessory title to the suit land on the basis of the agreement of sale

executed in his favour by Pishorrilal and was. therefore, entitled to

protect his possession under Section 53-A of the Act.

Original plaintiff/respondent died. His Legal representatives

(now the respondent) filed a second appeal in the High Court.

Although, a number of questions of law were framed at the time of

admission of the second appeal but at the time of final disposal the

only substantial question of law worth consideration was found to be:

"Whether the defendant, who is in possession

of the suit land on the basis of an agreement

of sale dated 1.9.1961 executed by Pishorrilal

Punjabi, who himself, in turn, had come in

possession of the suit land on the basis of a

similar agreement dated 16.6.1961 executed

by the plaintiff, can claim benefit of the

equitable doctrine of part performance as

stated in Section 53-A of the Transfer of

Property Act to protect his possession."

The above noted question was answered by the High Court in the

negative. It was held that the appellant was not entitled to protect his

possession claiming benefit of equitable doctrine of part performance

enshrined in Section 53-A of the Act. Title in the suit property had not

been conveyed in favour of Pishorrilal by executing a registered sale

deed. In the absence of title in the property Pishorrilal could neither

enter into an agreement of sale nor transfer possession of the

property to the appellant in part performance of the agreement under

Section 53-A of the Act. That the appellant failed to take due care

and pre-caution to ascertain the title of Pishorrilal to the suit land

before entering into transaction with him.

Section 53-A was enacted in 1929 by the Transfer of Property

(Amendment) Act, 1929, and imports into India in a modified form the

equity of part performance as it developed in England over the years.

Doctrine of part performance as stated in Section 53-A of the Act is

an equitable doctrine which creates a bar of estoppel in favour of the

transferee against the transferor.

It is seen that many a times a transferee takes possession of

the property in part performance of the contract and he is willing to

perform his part of the contract. However, the transferor some how

or the other does not complete the transaction by executing a

registered deed in favour of the transferee, which is required under

the law. At times, he tries to get back the possession of the

property. In equity the Courts in England held that it would be unfair

to allow the transferor to take advantage of his own fault and evict the

transferee from the property. The doctrine of part performance aims

at protecting the possession of such transferee provided certain

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conditions contemplated by Section 53-A are fulfilled. The essential

conditions which are required to be fulfilled if a transferee wants to

defend or protect his possession under Section 53-A of the Act have

been culled out of this Court in Shrimant Shamrao Suryavanshi &

Anr. Vs. Pralhad Bhairoba Suryavanshi, 2002 (3) SCC 676, are:

"(1) There must be a contract to transfer for

consideration of 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."

If these conditions are fulfilled then in a given case there is an

equity in favour of the proposed transferee who can protect his

possession against the proposed transferor even though a registered

deed conveying the title is not executed by the proposed transferor.

In such a situation equitable doctrine of part performance provided

under Section 53-A comes into play and provides that "the transferor

or any person claiming under him shall be debarred from enforcing

against the transferee and persons claming 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."

Protection provided under Section 53-A of the Act to the

proposed transferee is a shield only against the transferor. It

disentitles the transferor from disturbing the possession of the

proposed transferee who is put in possession in pursuance to such

an agreement. It has nothing to do with the ownership of the

proposed transferor who remains full owner of the property till it is

legally conveyed by executing a registered sale deed in favour of the

transferee. Such a right to protect possession against the proposed

vendor cannot be pressed in service against a third party.

The question which falls for our consideration is: "Whether the

doctrine of part performance could be availed of by the defendant

with whom the respondent had never entered into an agreement of

sale?" It is an admitted case of the parties that the

plaintiff/respondent had entered into an agreement of sale with

Pishorrilal on 16.6.1961 and who had taken possession of the suit

land in part performance thereof. Sale deed had not been executed

and registered in his favour. Pishorrilal did not take any steps for

getting the agreement of sale specifically enforced and obtain a

registered sale deed in respect of the suit land. Within a period of 2-

1/2 months Pishorrilal executed a similar agreement of sale dated

1.9.1961 in favour of the appellant and put him in possession of the

suit land. Pishorrilal did not have any right to enter into an agreement

of sale with the appellant as he was not the owner of the suit land.

The appellant did not care to ascertain the title of Pishorrilal to the

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suit land before entering into the transaction with him.

There was no agreement between the respondent and the

appellant in connection with the suit land. The doctrine of part

performance enshrined in Section 53-A of the Act could have been

availed of by Pishorrilal against the plaintiff/respondent subject to the

fulfillment of certain conditions but the same could not be availed of

by the appellant against the plaintiff/respondent with whom he has no

privity of contract. The doctrine of part performance as contemplated

by Section 53-A can be availed of by the transferee or any person

claiming under him. The appellant not being the transferee within the

meaning of Section 53-A of the Act could not invoke the equitable

doctrine of part performance to protect his possession as against the

plaintiff/respondent.

The agreement to sell does not create an interest of the

proposed vendee in the suit property. As per Section 54 of the Act,

the title in immovable property valued at more than Rs. 100/- can be

conveyed only by executing a registered sale deed. Section 54

specifically provides that a contract for sale of immovable property is

a contract evidencing the fact that the sale of such property shall take

place on the terms settled between the parties, but does not, of itself,

create any interest in or charge on such property. It is not disputed

before us that the suit land sought to be conveyed is of the value of

more than Rs. 100. Therefore, unless there was a registered

document of sale in favour of the Pishorrilal (proposed transferee) the

title of the suit land continued to vest in Narayan Bapuji Dhotra

(original plaintiff) and remain in his ownership. This point was

examined in detail by this Court in State of U.P. Vs. District Judge &

Ors., 1997 (1) SCC 496, and it was held thus:

"Having given our anxious consideration to the

rival contentions we find that the High Court

with respect had patently erred in taking the

view that because of Section 53-A of the

Transfer of Property Act the proposed

transferees of the land had acquired an

interest in the lands which would result in

exclusion of these lands from the computation

of the holding of the tenure-holder transferor

on the appointed day. It is obvious that an

agreement to sell creates no interest in land.

As per Section 54 of the Transfer of Property

Act, the property in the land gets conveyed

only by registered sale deed. It is not in

dispute that the lands sought to be covered

were having value of more than Rs. 100.

Therefore, unless there was a registered

document of sale in favour of the proposed

transferee agreement-holders, the title of the

land would not get divested from the vendor

and would remain in his ownership. There is

no dispute on this aspect. However, strong

reliance was placed by learned counsel for

Respondent 3 on Section 53-A of the Transfer

of Property Act. We fail to appreciate how

that section can at all be relevant against the

third party like the appellant-State. That

section provides for a shield of protection to

the proposed transferee to remain in

possession against the original owner who

has agreed to sell these lands to the

transferee if the proposed transferee satisfies

other conditions of Section 53-A. That

protection is available as a shield only against

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the transferor, the proposed vendor, and

would disentitle him from disturbing the

possession of the proposed transferees who

are put in possession pursuant to such an

agreement. But that has nothing to do with

the ownership of the proposed transferor who

remains full owner of the said lands till they

are legally conveyed by sale deed to the

proposed transferees. Such a right to protect

possession against the proposed vendor

cannot be pressed in service against a third

party like the appellant-State when it seeks to

enforce the provisions of the Act against the

tenure-holder, proposed transferor of these

lands."

[Emphasis supplied]

There was no agreement between the appellant and the respondent

in connection with the suit land. The doctrine of part performance

could have been availed of by Pishorrilal against his proposed vendor

subject, of course, to the fulfillment of the conditions mentioned

above. It could not be availed of by the appellant against the

respondent with whom he has no privity of contract. Appellant has

been put in possession of the suit land on the basis of an agreement

of sale not by the respondent but by Pishorrilal, therefore, the privity

of contract is between Pishorrilal and the appellant and not between

the appellant and the respondent. The doctrine of part performance

as contemplated in Section 53-A can be availed of by the proposed

transferee against his transferor or any person claiming under him

and not against a third person with whom he does not have a privity

of contract.

Doctrine of part performance is rooted in equity and provides a

shield of protection to the proposed transferee to remain in

possession against the original owner who has agreed to sell to the

transferee if the proposed transferee satisfies other conditions of

Section 53-A. It operates as an equitable estoppel against the

original owner to seek possession of the property which was given to

the proposed vendee in part performance of the contract. Appellant

being a third party and not a privy to the transaction on which the

estoppel rests can take no advantage of it.

Pishorrilal did not have a transferable interest which he could

convey to the appellant by entering into an agreement of sale with the

appellant. The appellant under the circumstances does not have the

equitable right to protect his possession as against the owner of the

land, i.e., the respondent. Appellant is not the transferee within the

meaning of Section 53-A. The appellant did not get the possessory

or equitable title to the suit land through Pishorrilal as Pishorrilal

himself did not have any right in the property. The only right

possessed by the Pishorrilal under Section 53-A was to protect his

possession as against his proposed vendee. He did not have

conveyable interest in the property which he could transfer to a third

party including the possession of the property.

For the reasons stated above, we do not find any merit in this

appeal and dismiss the same with costs.