Anantha Pillai vs Rathnasabapathy Mudaliar and Others

M.M. Ismail, J.—One Chockalinga Mudaliar had no sons but had two daughters by names Janaki Ammal, wife of the first defendant,

whose son is the 2nd defendant, and Kuppammal, the 3rd defendant, whose husband is the 4th defendant. This Chockalinga Mudaliar on 15th

May, 1933, executed a will bequeathing all his properties to his two daughters who were minors on that date, though Janaki Ammal was married.

Under the terms of the will be authorised the 1st defendant, the husband of Janaki Ammal, to manage the properties and put Kuppammal in

possession of her share of the properties on her attaining majority. On 20th December, 1933, the suit properties were purchased under Exhibit B-l

in the name of Janaki Ammal and Kuppammal. On 30th June, 1937, Janaki Ammal executed a power-of-attorney in favour of her husband, the

first defendant (Exhibit A -18). On 24th June, 1947 the first defendant executed an agreement, Exhibit A-l, in favour of the 5th defendant, who is

the brother of the plaintiff, for selling the properties in the villages of Ozhundiampattu and Raya Oddai belonging to Janaki Ammal and Kuppammal

for a consideration of Rs. 7,500 and received an advance of Rs. 2,000. On 6th September, 1947, the first defendant received a further sum of Rs.

1,000, and on 8th March, 1948 he received another sum of Rs. 1,000 making a total of Rs. 4,000 as advance pursuant to the agreement, dated

24th June, 1947. Kuppammal instituted O.S. No. 42 of 1954 on the file of the District Court, Cuddalore, which was transferred to and disposed

of as O.S. No. 53 of 1956 on the file of the Court of the Subordinate Judge of Cuddalore, for partition of her one-half share in the suit properties

as well as the other properties belonging to both the sisters. In that suit the plaintiff herein and the 5th defendant were impleaded as defendants 9

and 8 and they filed a written statement which has been marked as Exhibit A-16 in the present case. That suit for partition was decreed and in that

decree items 14 to 24 of the suit properties were allotted to the share of Kuppammal. Subsequent to the decree in that suit on 1st January, 1957 in

E.P. R. No. 135 of 1956 in O.S. No. 53 of 1956 delivery of items 14 to 24 in favour of Kuppammal was recorded. Further an unregistered lease

deed, dated 4th February, 1957 was also executed by the plaintiff in favour of Kuppammnl. Subsequently on the ground that the plaintiff had

committed default in payment of rents C.R.P. No. 11 of 1959 was filed on the file of the Revenue Divisional Officer, and O.S. No. 474 of 1959

on the file of the District Munsifs Court, Tindivanam, was instituted for the recovery of arrears of rent. It must be pointed out that in 1955 Janaki

Ammal died, and at that time O.S. No. 52 of 1954 was pending. After the death of Tanaki Ammal the first defendant and 2nd defendant were

recognised as the legal representatives of Janaki Ammal and Were brought on record as parties to that suit. It is under these circumstances O.S.

No. 112 of 1961 was instituted on the file of the Court of the Subordinate Judge of Cuddalore by the plaintiff for declaration of his title in respect

of the suit properties, which constitute 24 items and for permanent injunction restraining defendants 1 to 4 from interfering with his possession and

for declaration that the decree in O.S. No. 53 of 1956 on the file of the Court of the Subordinate Judge of Cuddalore was not binding on the

plaintiff and for setting aside the decree. The plaintiff impleaded his father as the 6th defendant in the suit by putting forward the contention that,

though Exhibit A-1 was executed in favour of the brother of the plaintiff, namely, the 5th defendant, it was really for the benefit of the joint family

consisting of the 6th defendant, the father, and the plaintiff and the 5th defendant, the two sons, and therefore it was their right to the suit properties

that was sought to be declared in the suit.

In the plaint, the plaintiff put forward the contention that the first defendant Was the executor of the will of Chockalingam Mudaliar and he was

also the guardian of Kuppammal, and Exhibit A-1 was executed by the first defendant in his capacity as the executor of the will of Chockalingam

Mudaliar and as the power-of-attorney agent of Janaki Ammal and therefore that agreement was binding on both Janaki Ammal and Kuppammal.

His further case was that ever since the date of Exhibit A-1, namely, 24th June, 1947 the plaintiff and the 5th defendant had been in possession of

the suit properties and therefore they have perfected their title to the suit properties by adverse possession and consequently they are entitled to a

declaration of their title to the suit properties. The further case of the plaintiff Was that his title has become perfect u/s 53-A of the Transfer of

Property Act, since they have paid a sum of Rs. 4,000 pursuant to Exhibit A-1 and also have been put in possession of the suit properties pursuant

to the said agreement. The plaintiff stated that he Was not aware of the decree in O.S. No. 53 of 1956, that during the pendency of the suit the

first defendant approached the plaintiff and the 5th defendant and obtained their signatures on blank papers and assured them that he would look

after their interest in the suit and if necessary he would file written statements on their behalf and have their rights defended. It is only subsequently

when the suit for the recovery of arrears of rent was filed they came to know that the first defendant fraudulently connived at passing of a decree

for partition in favour of Kuppammal and therefore the decree in O.S. No. 53 of 1956 was not binding on the plaintiff or the 5th defendant. It may

be noticed that the plaintiff claimed title to items 1 to 24 of the suit properties notwithstanding the fact that items 14 to 24 were allotted to the share

of Kuppammal in the partition decree in O.S. No. 53 of 1956 and the plaintiff had surrendered possession of those items to Kuppammal on 1st

January, 1957 and executed a lease chit in her favour of 4th February, 1957.

The first defendant filed a Written statement resisting the claim of the plaintiff. He stated that he did not execute Exhibit A-1 either as executor

under the will of Chockalinga Mudaliar or as power-of-attorney of Janaki Ammal. Though he admitted the execution of Exhibit A-l and the receipt

of a sum of Rs. 4,000 he contended that the rights of the 5th defendant under Exhibit A-l was contingent upon the 1st defendant obtaining the

sanction of the District Court for selling the properties of Kuppammal, who was a minor and whose Court guardian the first defendant was, and as

soon as the Court refused to grant the sanction, the entire agreement fell through. He also denied the allegation of the plaintiff that in O.S. No. 53

of 1956, he obtained the signatures of the 5th defendant and the plaintiff on blank papers and used them for filing the written statements on their

behalf. The first defendant''s case was that the plaintiff and the 5th defendant filed their own written statements in O.S. No. 53 of 1956, but

remained ex parte, and allowed the decree for partition to be passed in the said suit. However, the first defendant died during the pendency of the

suit.

The 2nd defendant filed his own written statement. Admittedly the 2nd defendant was a minor on the date of the decree in O.S. No. 53 of

1956. He denied the execution of the agreement by the first defendant; the receipt of a sum of Rs. 4,000 by the first defendant; and he also

contended that there was no valid power-of-attorney in favour of the first defendant and that the power-of-attorney executed by Janaki Ammal in

favour of the first defendant was not acted upon and was really abandoned within a short time after its execution.

The 3rd defendant also filed her written statement and she contended that in view of the proceedings in O.S. No. 53 of 1956 the plaintiff could

not have any claim against her and in respect of items 14 to 24 of suit properties. In other respects also she resisted the claim of the plaintiff.

The learned Subordinate Judge framed the necessary issues and by his judgment and decree, dated 15th April, 1963, came to the conclusion

that the power-of-attorney executed by Janaki Ammal in favour of the first defendant did not clothe the first defendant with the power to enter into

the agreement of sale, dated 24th June, 1947. Consequently, the learned Subordinate Judge came to the conclusion that the agreement was not

binding on Janaki Ammal and therefore was not binding on the 2nd defendant. The learned Subordinate Judge also came to the conclusion that the

plaintiff and the 5th defendant were fully aware of the proceedings in O.S. No. 53 of 1956 and they themselves have filed their written statements

and that their allegation that the first defendant obtained their signatures on blank papers was not true. The learned Subordinate Judge also came to

the conclusion that the plaintiff and the 5th defendant were fully aware of the proceedings in O.S. No. 53 of 1956 and they themselves have filed

their written statements and that their allegation that the first defendant obtained their signatures on blank papers was not true. The learned

Subordinate Judge, with reference to the contention of the plaintiff that his title became perfect u/s 53-A of the Transfer of Property Act, pointed

out that the plaintiff never alleged in the plaint that he was willing to perform his part of the contract by paying the balance amount of Rs. 3,500 and

further Section 53-A did not enable a person like the plaintiff to take the "" sword, "" and ask for and obtain a decree declaring his title. With regard

to the claim of the plaintiff that the plaintiff and the 5th defendant had perfected title to the properties by adverse possession the learned

Subordinate Judge rejected the same relying on certain decisions of the Courts referred to before him. He also came to the conclusion that Exhibit

A-l was entered into between the first defendant and the 5th defendant and therefore the plaintiff cannot take advantage of that agreement and

maintain the present suit, with the result by his judgment and decree, dated 15th April, 1963 he dismissed the suit of the plaintiff.

The plaintiff thereafter preferred A.S. No. 374 of 1963 on the file of the Court of the District Judge of South Arcot, Cuddalore. Before the

learned District Judge the claim of the plaintiff against Kuppammal in respect of items 14 to 24 of the suit properties was not pressed, and the

appeal was argued only against Janaki Ammal and her heirs and in respect of items 1 to 13 of the suit properties. He substantially agreed with the

conclusion of the learned Subordinate Judge and dismissed the appeal by his judgment and decree, dated 22nd October, l964. In one respect he

disagreed with the learned Subordinate Judge, namely, that he held that when the 5th defendant and 6th defendant came forward with the case that

Exhibit A-1 was entered into for the benefit of the family itself, there was nothing to prevent the plaintiff maintaining the suit on the strength of the

agreement. It is against these judgments and decrees the present Second Appeal has been filed.

Mr. S. Rajagopala Iyer, learned Counsel for the appellant, at the very outset stated that the appeal is confined only to items 1 to 13 of the suit

properties which were allotted to Janaki Animal under the partition decree in O.S. No. 53 of 1956 and the appellant no longer presses for the

relief of setting aside the decree in that suit. The learned Counsel for the appellant put forward the following three contentions. Firstly, the

agreement, namely, Exhibit A-1, executed by the first defendant on 24th June, 1946 was as the power-of-attorney agent of his wife Janaki Ammal

and therefore it was binding on Janaki Ammal and his heir, the 2nd defendant. The contention of the learned Counsel is that the power-of-attorney,

dated 13th June, 1937 authorised the first defendant to execute such an agreement. Secondly by virtue of the provisions contained in Section 53-A

of the Transfer of Property Act and because of the fact that the plaintiff had paid Rs. 4,000 to the first defendant towards the consideration of the

proposed sale and was put in possession of the suit properties, he had acquired title to the suit properties and therefore he is entitled to the

declaration prayed for. Thirdly, in any event the plaintiff and the 5th defendant had perfected their title to the suit properties by adverse possession

because of their continuous possession of the suit properties ever since 24th June, 1947.

I shall deal with these contentions of the learned Counsel in that order. Exhibit A-l is in the following terms:

Certain features can be noticed in the above document. There is no recital in that agreement that the first defendant was executing that

agreement either in his capacity as the power-of-attorney agent of Janaki Ammal or as the guardian of Kuppammal. The second feature is that the

agreement expressly refers to the fact that to the extent to which Kuppammal was concerned, the sanction of the District Court of South Arcot,

Cuddalore, has to be obtained for execution of the conveyance and therefore the conveyance will be executed after obtaining such sanction. The

third feature is that a sum of Rs. 2,000 was received by the first defendant as advance on the understanding that the balance of the consideration

would be paid at the time of the execution of the conveyance. The fourth feature is that the properties of Janaki Ammal and Kuppammal proposed

to be sold were not described in detail except to state that all the properties in the two villages mentioned therein were proposed to be sold. The

fifth feature is that a consolidated sum of Rs. 7,500 was fixed as consideration for the properties proposed to be sold, which admittedly belonged

jointly to Janaki Ammal and Kuppammal. The question that arises with reference to this agreement is whether it was binding on Janaki Ammal. The

first point that may be noticed is that the first defendant did not purport to execute it as agent of Janaki Ammal. That itself will be sufficient to show

that the said document may not be binding on Janaki Animal. However, I do not propose to rest my conclusion solely on this point. In my opinion,

even the power-of-attorney relied on by the learned Counsel for the appellant did not clothe the first defendant with the authority to enter into such

an agreement. The power-of-attorney is a long and detailed one. Major portion of that power-of-attorney has been extracted by the learned

Subordinate Judge in paragraph 19 of his judgment. That power-of-attorney recites that it was being executed because of the inability of Janaki

Ammal being a woman to manage her properties personally. The various acts to be done by the first defendant are mentioned, viz., to collect the

outstandings, to discharge debts if there were to be any due by the executant, to execute documents to others and to obtain documents from

others. What can be seen immediately is that admittedly the document does not confer any specific or express power on the first defendant to sell,

mortgage or otherwise alienate the properties of the executant. However, there was one passage on which reliance was placed by the learned

Counsel as conferring the power to enter into an agreement to sell or even to execute a sale deed. The relevant portion is as follows:

The contention of the learned Counsel is that the power to. execute documents on behalf of Janaki Ammal will include the power to execute an

agreement to sell and also to execute a sale deed. In this connection the learned Counsel strongly relied on a sale deed executed by Janaki Ammal

in favour of one Kuppuswami Naidu on 2nd June, 1953 as supporting his contention that the power-of-attorney executed by Janaki Ammal in

favour of the first defendant contained the authority to enter into an agreement to sell. That sale deed, dated 2nd June, 1953 expressly refers to the

fact that earlier to that her husband as power-of-attorney agent of herself had entered into an agreement to sell and she was completing the

transaction by executing the sale deed itself. That it was found necessary for Janaki Ammal personally to execute the sale deed, will be a sufficient

indication to show that the parties themselves were aware of the fact that the first defendant did not have such a power. Apart from that fact, that in

one instance Janaki Ammal ratified the agreement to sell entered into by the first defendant and completed the sale by executing the deed of

conveyance, does not establish that the power-of-attorney itself conferred such a power on the first defendant. The general principles regarding the

construction of a power-of-attorney are well-settled. Powers -of-attorney must be strictly construed as giving only such authority as they confer

expressly or by necessary implication. Where an act purporting to be done under the power-of-attorney is challenged as being in excess of the

power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of

the instrument either by express terms or by necessary implication. Some of the principles governing the construction of a power-of-attorney are :

(1) the operative part of the deed is controlled by the recitals; (2) where an authority is given to do particular acts, followed by general words, the

general words are restricted to what is necessary for the performance of the particular acts; (3) the general words do not confer general powers

but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for that

purpose; (4) a power-of-attorney is construed so as to include all medium powers necessary for its effective execution. Bearing these general

principles in mind the question for consideration is whether the power-of-attorney in this case authorised the first defendant to enter into an

agreement to sell or authorised him to execute a sale deed. In my opinion the power granted to the first defendant to execute every type of

document on behalf of Janaki Ammal will have to be understood with reference to particular acts specified in the documents itself, for which the

power was granted. It must be remembered that the power was granted by a wife to a husband for managing her properties and not for liquidating

the same. The apparent necessity for executing such a power was that being a woman she was not able to attend to the day-to-day requirements

involved in the management of the properties and it is not as if she was not in a position to negotiate the terms of a sale or to execute a sale deed,

which is not an every day occurrence. Mr. Rajagopala Iyer relied on the decision of this Court in Venkataramana Iyer v. Narasinga Rao (1915) 24

M.L.J. 180 : ILR (1915) 38 Mad. 134, and contended that the power-of-attorney in this particular case was a general power-of-attorney. For the

same purpose the learned Counsel relied on the decision of this Court in Krishna Phoopathi Deo v. Raja of Vizianagaram ILR (1915)38 Mad. 832

: (1915) 26 M.L.J. 185. I must point out that there is no magic in the nomenclature of a power-of-attorney being a general power-of-attorney. The

scope of the power has to be gathered from the language of the document. As was pointed out by this Court in the latter case relied on by the

learned Counsel himself "" Every document must be construed with reference to its particular terms, and differently worded documents afford but

little assistance for correctly construing the document concerned in this case "". Therefore, even on the basis that the power-of-attorney executed by

Janaki Ammal on 30th June, 1937, is a general power-of-attorney, still the question remains whether it authorised the first defendant to execute a

document like Exhibit A-l. Learned Counsel relied on a decision of the Calcutta High Court in Narendra Nath v. Bimala Sundari 42 C.W.N. 718,

for the position that the agent''s power is not limited to the physical act of signing documents relating to transactions entered into by the principals

but he has also the power to enter into contracts himself on behalf of the principals and to make the necessary documents. In my opinion the

question is whether any such power can be gathered from the terms of the document in question. I am clearly of the view that no such power can

be gathered from the document in question. One feature I have already indicated is that the document does not confer expressly on the first

defendant any power to alienate the properties either by way of sale, mortgage or otherwise. Secondly, the document is a detailed one referring to

several acts to be done by the first defendant. Therefore, in the context of the detailed enumeration of the powers conferred on the first defendant

to perform acts, the general words will have to be understood as enabling him to do such things as are necessary for the purpose of effectively

performing those functions enumerated and conferred on the first defendant. Thirdly, the occasion for executing the power-of-attorney was that

Janaki Ammal being a woman was not in a position to look after the management of her properties and affairs personally, and certainly that does

not indicate any inability or disability on her part to negotiate a sale or enter into an agreement for that purpose. In this context a decision of the

Patna High Court in Province of Bihar Vs. Thakkan Manjhi, is instructive. In that case a pardanashin lady executed a power-of-attorney in favour

of her husband for the purpose of looking after her affairs and managing her properties. The power-of-attorney in that case began by reciting that

the executant being a pardanashin lady it was difficult and impossible for her to look after and take care of the whole and entire village and Court

affairs and cases and to execute every kind of deed personally. It went on to appoint the husband as the general power-of-attorney with full

powers and then specified in detail the powers in relation to village and Court affairs and to instruments affecting moveable and immovable

properties. As to the latter powers, the language used after enumerating different kinds of deeds such as deeds of sale, mortgage and lease, etc.

was ""the said general attorney shall either as (or through) attorney on his own behalf or personally on my behalf by his pen sign and acknowledge

and get attested (these instruments) and present them before the Registrar and admit execution and get them registered."" That is to say, the

attorney had power to sign and consent to a deed of sale and get it attested and registered. Notwithstanding this language, the Patna High Court

pointed out that the husband had no power to enter into an agreement for sale in respect of the wife''s property. The learned Judges pointed out (at

page 186):

If the lady had intended that her attorney Should have power to sell, mortgage and lease, nothing would have been simpler than to say so; but this

is not said.

The learned Judges further pointed out:

If there had been a power to sell, then by necessary implication there would have been the power to settle the terms of sale. But there is no power

to sell.

If that was the decision of the Patna High Court in relation to a power-of-attorney where expressly the power was conferred on the husband to

execute deeds of sale, mortgage, lease, etc. on behalf of the grantor of the power the position is a fortiori here, where there is no enumeration of

any power to execute all types of documents on her behalf, which necessarily has to be understood in the context of the specified and enumerated

powers conferred on the first defendant by Janaki Ammal. For these reasons, I am of the view that the power-of-attorney executed by Janaki

Ammal in favour of the first defendant on 30th June, 1937 did not authorise the first defendant to execute Exhibit A-1 on behalf of Janaki Ammal

and therefore the said document is not binding either on Janaki Ammal or the 2nd defendant.

With reference to the second point urged by the learned Counsel, Mr. Rajagopala Iyer referred to several decisions for contending that the

Courts below are wrong in holding the view that the benefit of Section 53-A of the Transfer of Property Act will be available only to a defendant

and not to a plaintiff. In this context he drew my attention to the decision in Ewaz Ali v. Firdaus Jehan Musammal ILR (1944) Luck 565, and the

decisions in Achayya v. Venkata Subba Rao (1956) 1 A W.R. 830 : AIR 1957 A.P. 859, Akram Mea v. Municipal Corporation, Secunderabad

(1957) 1 A.W.R, 135 : AIR 1957 A.P. In Achayya v. Venkata Subba Rao (1956) 1 A W.R. 830 : AIR 1957 A.P. 859, it was observed:

The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be

invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee only

rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the

transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense it is a statutory

recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his

rights against the property.

Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor''s claim against the property. Conversely,

whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the

section or the rights conferred thereunder should not be made to depend on the manoeuvcring for position in a Court of law; otherwise a powerful

transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as

plaintiff.

However, it is needless for me to pursue this line of authority for the reason that in my view Section 53-A of the Transfer of Property Act

cannot be relied on by the plaintiff for the purpose of obtaining the relief which he has prayed for in the present suit. For one thing, for the

application of Section 53-A the following conditions must be cumulatively satisfied; (i) there must be a contract to transfer immovable property for

consideration; (ii) the contract must have been signed by or on behalf of the transferer; (iii) the terms can be ascertained with reasonable certainty

from the document; (iv) the transferee has to be in possession or, if he has been already in possession, continues in possession; (if) he has done

some act in furtherance of the contract; and (vi) the transferee has performed or is willing to perform his part of the contract. As far as the present

case is concerned, the last condition has not been satisfied. Admittedly the plaint in this case does not contain any averment that the plaintiff is

willing and prepared to pay the balance of consideration of Rs. 3,500. Mr. Rajagopala Iyer, the learned Counsel for the appellant contended that it

was not necessary that such an averment should be contained in the plaint itself. For this purpose he relied on a decision of this Court in T.S.

Karthikeya Mudaliar Vs. Singaram Pillai and Another, , and drew my attention to the following passage occurring in the judgment (at page. 517):

Section 53-A, however, does not provide that there must be a plea in a suit for possession, where the defendant seeks the aid of Section 53-A,

that he is ready and willing to perform his part of the contract.

However, the very next sentence is against the appellant in this case. That sentence is;

The readiness and willingness to perform his part of the contract must no doubt be established by evidence and that readiness and willingness must

be shown to have existed ever since the time of the agreement and not necessarily when the suit is filed.

It is further observed:

It may be that such a pleading may be absolutely necessary in a suit for specific performance on the part of the plaintiff. But the absence of an

averment in the Written statement in a suit for possession where the defendant raises plea u/s 53-A does not appear to me to be fatal as Section

53-A does not in terms provide for any such requirement.

Admittedly, in this case, the plaintiff has not let in evidence to show that he was ready and willing to perform his part of the contract. Therefore,

condition No. (VI) enumerated already is not satisfied in this case and for this reason the plaintiff cannot have any reliance on Section 53-A.

For another reason as well the appellant cannot rely on Section 53-A of the Act. The Privy Council in Probodh Kumar Das v. Dantmara Tea

Company Ltd L.R. (1939) 66 IndAp 293 : (1940)1 M.L.J. 854., had observed as follows (at page 297):

In their Lordships'' opinion, the amendment of the law effected by the enactment of Section 53-A concerned no right of action on a transferee in

possession under an Unregistered contract of sale. Their Lordships agree with the view expressed by Mitter, J,, in the High Court that '' the right

conferred by Section 53-A is a right available only to the defendant to protect his possession.'' They note that this was also the view of their late

distinguished colleague, Sir Dinshah Mulla, as stated in the second edition of his treatise on the Transfer of Property Act, at page 262. The section

is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a

serious inroad on the whole scheme of the Transfer of Property Act.

In the judgment of the Andhra Pradesh High Court already referred to, namely, Yengu Achayya v. Venkata Subba Rao (1956) A.W.R. 830 :

AIR 195 7 A.P., the learned Judges observed:

It is settled law that u/s 53-A of the Transfer of Property Act, no title passes to a transferee. He cannot file a suit for a declaration of his title to the

property or seek to recover possession of the same on the basis of any title conferred on him. But if the conditions laid down in the section are

complied with, it enables the transferee to defend his possession if the transferor seeks to enforce his rights against the property. This statutory right

he can avail himself both as a plaintiff and as a defendant provided he is using his right as a shield and not as a sword. Or, to put it in other words,

he cannot seek to enforce his title but he can resist the attack made by a transferor.

I may point out here that in view of the provisions contained in Section 54 of the Transfer of Property Act, the position cannot be different,

because under that section, where immovable property of the value of rupees hundred and upwards is sought to be sold, the sale has to be

effected only by means of an instrument executed, attested and registered as required by law. The same section clearly and categorically provides

that a contract for sale of immovable property by itself does not create any interest in or charge on such property. Therefore, to hold that a person

who has been put in possession of a property pursuant to an agreement to sell, in whose favour no conveyance has been executed, can establish

his title on the basis of that agreement to sell itself, is to fly in the face of the provisions contained in Section 54 of the Act and is to render the same

clearly nugatory. Hence, it is clear that the appellant cannot pray for a declaration of his title based upon Section 53-A of the Transfer of Property

Act. In this context it is important to note the following observations of the Supreme Court in Ram Gopal Reddy Vs. Additional Custodian

Evacuee Property, Hyderabad, ;

It may be that if Abdul Aziz Khan had tried to get back the property, Section 53-A of the Transfer of Property Act would come to the aid of the

appellant in defence. But the present suit has been filed to establish the right of the appellant as owner of the property and in such a suit the

appellant cannot take the benefit of Section 53-A of the Transfer of Property Act.

That leaves me with the third point, namely, the claim of the appellant that he had perfected his title to the property by adverse possession. In

this context it is desirable to refer to the fact that the learned Subordinate Judge has come to the conclusion that subsequent to 24th June, 1947, it

was the plaintiff and the fifth defendant who were in possession of the property and neither the first defendant nor the second defendant was in

possession of the property. On the other hand, the learned District Judge did not appear to agree with this conclusion. In this view the evidence

adduced on behalf of the appellant did not establish a continuous possession, but established only sporadic acts which would not tantamount to

being in adverse possession for over twelve years. For the purpose of the argument of the learned Counsel for the appellant, I am prepared to

assume that the appellant and the fifth defendant had been continuously in possession of the property ever since 24th June, 1947. The question is

whether such possession can be said to be adverse to Janaki Ammal and, therefore, to the second defendant. In my opinion such possession

cannot be said to be adverse. The concept of adverse possession contemplates a hostile possession; i.e., a possession which is expressly or

impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other''s

rights, but denies them. In AIR 1935 53 (Privy Council) the Judicial Committee observed (at page 56):

The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that

his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial

factor. If that be the case, can it be said that the possession of the plaintiff and the fifth defendant which started with the agreement of sale dated

24th June, 1947, was adverse to Janaki Ammal. As I pointed out already, the document, namely, Exhibit A-l itself contemplated the execution of a

subsequent conveyance and the execution of the conveyance had to be postponed because with reference to the interest of Kuppamma the

sanction of the District Court had to be obtained. Therefore, when the plaintiff and the fifth defendant were in possession of the suit property ever

since 24th June,. 1947, they were in derivative or permissive possession in anticipation and expectation of obtaining a deed of conveyance from

the real owners. The fundamental postulate of that possession is that they acknowledged and recognised the title of Janaki Ammal to the suit

property and it is only on that basis that they expected and. Hoped to get a conveyance from her. Mr. Rajagopal a Iyer, the learned Counsel for

the appellant, in this connection, relied on the decision of this Court in M.K. Sheik Dawood Saheb Vs. Moideen Batcha Saheb and Others, . In

that case the defendant''s father had obtained a usufructuary mortgage of the suit property and four or five years after the mortgage, the mortgagor

told the mortgagee to take the suit property in lieu of the whole debt of Rs. 75 and therefore he enclosed it by a wall. The question that came up

for consideration was whether the mortgagee had become the owner of the property. In view of the fact that the consideration was only Rs. 75, by

virtue of the provisions contained in Section 54 of the Transfer of Property Act, the mortgagee could have become the owner of the property by

obtaining delivery of the property itself. The mortgagee was already in possession of the property and the delivery in such a case could not have

been physical delivery, but only a symbolic or constructive delivery or the change in the character of possession and where such change in the

character of possession was established, the mortgagee would have obtained title to the property under the provisions of Section 54 of the Act

itself. In that context an argument was advanced that the mortgagee was in possession of the property only pursuant to an agreement of sale and

therefore he could not claim title to the property by adverse possession and reliance for this purpose was placed on The Vizagapatam Sugar

Development Company Limited and Another Vs. T. Muthuramareddi and Others, . Dealing with the argument, the learned Judge of this Court

observed:

Apart from this anomaly, the facts of this case are different from The Vizagapatam Sugar Development Company Limited and Another Vs. T.

Muthuramareddi and Others, , where the delivery was in part-performance of an agreement to sell. Here there was an attempt at a sale and the

change in the character of possession was in pursuance of such an attempt. Even if there was no difference between the two cases we do not see

any reason why the possession obtained in part performance of an agreement to sell or the possession in its changed character which was the result

of an attempted but infructuous sale should not be adverse to the vendor.

It is on this passage that the learned Counsel for the appellant placed reliance. In : my opinion, this decision is not of assistance to the contention of

the learned Counsel. In the first place, the learned Judges who constituted the Bench recognised the decision of the Full Bench in The Vizagapatam

Sugar Development Company Limited and Another Vs. T. Muthuramareddi and Others, , as laying down the proposition that where the delivery

was in part performance of an agreement to sell there could not be adverse possession, and I arc not entitled to assume that the learned Judges

who constituted the Division Bench were ignoring or differing from the decision of the Full Bench. Secondly, the said observation was merely

obiter. The reason is that, if there had been delivery of possession to the mortgagee, there was no need for him to rely on adverse possession at all;

for, since the consideration was only Rs. 75, the very delivery conferred title on the mortgagee under the provisions of Section 54 of the Transfer

of Property Act. Therefore, I am not able to hold that this decision lays down the proposition that the possession of a person who enters into

possession of a property pursuant to an agreement to sell, but in whose favour no conveyance has been executed , is adverse to the true owner.

On the other hand, a recent decision of a Bench of this Court clearly and categorically laid down that such possession cannot be adverse. After

elaborately dealing with the question of adverse possession with reference to an invalid transaction of sale or infructuous document of sale, the

Bench pointed out in Annamalai v. Muthiak ILR (1965) 1 Mad. 254;

In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and

where the parties contemplate the execution of a regular registered sale deed the position is different. The purchaser who gets possession in such

cases is in possession in a derivative character and in clear recognition of and in acknowledgment of the title of the vendor. The animus of the

purchaser throughout is that he is in possession of the property belonging to the vendor and that the former''s title has to be perfected by a duly

executed registered deed of sale under which the vendor has to pass on and convey his title.

...In the instant case the possession of the respondent was in pursuance of and under the agreement of sale, right from the inception, and, therefore,

clearly permissive in character, besides being in recognition and acknowledgment of the title of the owner....We are of the clear opinion that in the

conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property

by an outright transfer, both parties stipulating for a total divestitute of all the rights of the transferor in the property, and a case in which there is a

mere executory agreement of transfer, both parties contemplating a deed of transfer to be executed at later point of time. In the later case the

principle of estoppel which applies between mortgagor and mortgagee or a lessor and lessee clearly applies, estopping the transferee from

contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse

possession implies that it commenced in wrong and is maintained against right-When the commencement and continuance of possession is legal and

proper,, referable to a contract, it cannot be adverse.

This decision of the Bench of this Court clearly applies to the facts of the present case. Therefore, I am of the definite opinion that the plea of

adverse possession taken up by the appellant cannot prevail in this case. The Courts below have also considered the question whether the decree

in O.S. No. 53 of 1956 interrupted the adverse-possession, if any, commenced by the appellant on 24th June, 1947. In view of my conclusion that

the possession of the appellant and the fifth defendant was never adverse to Janaki Ammal and subsequently to the first defendant, it is not

necessary for me to consider what the effect of the decree in O.S. No. 53 of 1956 was with reference to the adverse possession, if any, on the

part of the appellant and the fifth defendant.

No other point was urged before me. Under these circumstances, the Second Appeal fails and is dismissed with the costs of the second

defendant.

No leave.