Annamalai Goundan vs Venkatasami Naidu and Others

Ganapatia Pillai, J.—This civil revision petition raises an interesting question of law, namely, whether it is open to a person, against whom

proceedings have been instituted for eviction under the Madras Cultivating Tenants Protection Act, to raise a plea based upon Section 53-A of the

Transfer of Property Act, for resisting the application.

The first respondent herein is the owner of the lands which were let to the petitioner by a lease deed dated 19-11-1952. The term in the lease

deed was for a period of two years and it expired on 18-11-1954. The annual rent agreed upon was a sum of Rs. 166. The Assistant Collector,

Hosur, against whose order this revision petition is filed, entertained an application for eviction at the instance of the first. respondent on 2-7-1957.

The allegation made in the petition by the landlord-first respondent was that the petitioner had fallen into arrears in the matter of payment of rent

since November, 1954. Some amounts had been admittedly paid unto 25-9-1956; but it was not disputed that on the date of the application for

eviction there were arrears of rent payable by the petitioner.

The defence set up by the tenant first petitioner was that some time after the expiry of the lease period, that is to say, in May 1965 (the date 24-

5-1958 given by the Assistant Collector in his order being incorrect), a registered agreement was entered into between the parties, namely, the first

respondent to the application for eviction and the landlord the petitioner therein, whereby the landlord agreed to sell leased properties to the

petitioner herein for a sum of Rs. 800 to be paid within an agreed date.

It is not disputed that consideration passed for this agreement and the landlord did not dispute the execution of this agreement. It is further admitted

that, within the date fixed for execution of the sale deed, the petitioner, in whose favour the agreement of sale was executed, had tendered the

balance of price due to the landlord, who improperly refused to accept the amount and execute the sale deed. It is also common ground that the

period of limitation for enforcing the contract by specific performance had not expired either on the date when the application for eviction was

preferred or on the date when it was ordered.

The contention put forward before the Assistant Collector was that, after the execution of the registered agreement for conveyance of the

property, the petitioner no longer remained in possession as tenant and therefore the application for eviction was not maintainable. The Assistant

Collector rejected this argument on the ground that the registered agreement for conveyance did not create an interest in the lands which entitled

the petitioner to remain in possession. He further held that he continued to be tenant of the property, even though the term of the lease had expired

and it was not competent for him to resist the application for eviction on the ground that he had acquired a now right for possession of the property

under the agreement for conveyance.

It may be mentioned that the lands which are the subject of dispute originally belonged to the petitioner, who had sold them to the landlord

sometime before, or almost contemporaneously with, the date when the lease deed in favour of the petitioners was executed. Shortly after the

order for eviction was passed by the Assistant Collector a suit for specific performance had been instituted by the first petitioner for getting a

conveyance of the suit lands from the first respondent.

Mr. T.V. Balkrishnan, learned counsel for the petitioner, raised two points. First, he argued that Section 53-A of the Transfer of Property Act

would apply to the facts of this case and would clothe the petitioner with the right to remain in possession and to resist the application for eviction

brought at the instance of the landlord. According to him, if a civil suit for eviction had been brought against the petitioner and he could resist such a

suit relying upon Section 53-A of the Transfer of Property Act, a fortiori such a plea must be open to a tenant in a proceeding for eviction instituted

under the Madras Cultivating Tenants Protection Act. The second point was that the application for eviction under the Madras Cultivating Tenants

Protection. Act was misconceived, because, after the date of the agreement for sale, the capacity in which the petitioner occupied the land was not

that of a tenant, but of an owner under an inchoate title.

The first question for determination is whether the conditions laid down in Section 53-A of the Transfer of Property Act have been fulfilled to

enable the petitioner to rely upon the doctrine of part performance. It is true that before Section 53-A was introduced by the Transfer of Property

Amendment Act of 1929, the law in this country did not enable the defendant in an action for ejectment to resist the action merely on the ground

that he had obtained a contract for sale or the property.

The decision of the Privy Council in AIR 1931 79 (Privy Council) which laid down this, proposition, has been reaffirmed by the Privy Council in

AIR 1934 235 (Privy Council) But both these decisions dealt with the law as it stood before the Amendment of 1929. After the amendment of the

Transfer of Property Act in 1929, which introduced Section 53-A, a defendant in a suit for ejectment is entitled to rely upon his contract for

transfer, provided the conditions mentioned in that section ate fulfilled. A point was raised by the learned counsel for the first respondent whether

Section 53-A would apply to a case where the instrument in question relied upon by the defendant was only an agreement or contract to transfer

and not an inchoate deed of transfer. Section 53-A so far as it is relevant reads as follows:

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 the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that

the transfer has not been completed in the manner prescribed therefore 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;

Learned counsel for the first respondent contended that a mere contract to transfer Immovable property and even a decree for specific

performance of such a contract would not create any right or title in the property and he referred to Section 54 of the Transfer of Property Act,

and to the decision in Hakim Enayat Ullah Vs. Khalil Ullah Khan and Another, , as authorities for this contention. The point for decision is not

whether the agreement to sell obtained by the petitioner in this case creates an interest in the Immovable property, but whether it creates a right in

him to possession of the property for resisting the claim for ejectment made by the landlord first respondent. If the conditions stipulated in Section

53-A of the Transfer of Property Act are fulfilled, it cannot he denied that the landlord would be helpless in a civil court if he resorted to that court

for evicting the petitioners. There is no dispute that the contract for sale had been performed In part in this case and that it is supported by

consideration. The other requirement whether the petitioner was allowed to continue in possession of the property, in part-performance of the

contract is not also in doubt, because, at the time when the contract of sale was entered into, the term of tho lease has expired and the landlord

was free to enforce his claim for possession, subject of course to the provisions of the Madras Cultivating Tenants Protection Act. It is obvious

that, till the contract of sale was entered into, the petitioner only occupied the position of lessee. But, after the date of the contract and after it was

performed in part by consideration being paid for the contract and the landlord allowing the tenant to remain in possession by reason of the new

status created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the petitioner was

referable to the contract of lease. There can be no doubt in this case that the conditions laid down in Section 53-A of the Transfer of Pro-party

Act are fulfilled even though a contract to sell alone was obtained. No authority was cited for the contention that a deed of transfer should have

been obtained by petitioners, before they could invoke Section 53-A. Indeed the very language of the section is against such a contention. The

question whether this defence would he open in a proceeding for eviction under the Madras Cultivating Tenants Protection Act is really beside the

point, because, the moment possession is taken or continued under the contract of sale, the original relationship of landlord and tenant ceases to

exist and the landlord cannot take advantage of the provisions of the Madras Cultivating Tenants Protection Act to file an application for eviction.

The Assistant Collector was therefore wrong when he held that the petitioner was a tenant of the first respondent liable to be evicted under the

Madras Cultivating Tenants Protection Act. It is manifest that, before any proceeding for eviction could be taken under the Madras Cultivating

Tenants Protection Act, the relationship of landlord and tenant must subsist both on the date when the cause of action arose and when the

application was made. On the plea raised by the petitioner in this case, I hold that the relationship of landlord and tenant ceased to exist when the

contract of sale was entered into and was performed in part.

The order of the Assistant Collector Hosur, is therefore set aside, and the application for eviction filed by the first respondent is dismissed. The

petitioner will get his costs from the first respondent.

Petition allowed.