Deputy Lal vs Suba Singh and Others

Sukhdev Singh Kang, J.—This Regular Second Appeal by Deputy Lal is directed against the judgment and decree, dated January 20, 1978 of the learned Additional District Judge, Gurdaspur, whereby he set aside the judgment and decree, dated September 30, 1977 passed by the Subordinate Judge III Class Gurdaspur, decreeing the suit of the Plaintiff-Appellant for possession of the suit land.

First the factual matrix:

Deputy Lal was the mortgagee in possession of the land in dispute. He entered into an agreement with Defendant-Respondents to mortgage his rights in this land with them for a consideration of Rs. 1,800/. The agreement to this effect was executed on August 3, 1969. The Defendants paid Rs. 1,000/- to Deputy Lal-as part performance of the contract

and were put in possession of the land. However, the balance amount of Rs. 800/- was not paid by the mortgagees and Mortgage Deed was not executed within the stipulated period. The Defendants continued to be in possession of the land. Consequently, Deputy Lal filed the present suit for possession. The suit was contested by the Defendants. They inter alia pleaded that they had entered into an agreement to mortgage ''Deputy Lal''s mortgagee rights in the land in dispute for Rs. 1,800/. They had been put in possession as part of performance of the agreement ; that they had several times asked the Plaintiff to execute the Mortgage Deed in their favour, but he failed to do so. Various other objections were taken in the written statement. The learned trial Judge framed the following issues:

Whether the Plaintiff was in possession of the suit land at the time of execution of agreement dated 3.8.69 and delivered possession of the same to the Defendant ?

Whether the Defendant paid the entire mortgage money viz. Rs. 1800/- to the Plaintiff ? ...

Whether the Defendants failed to perform their part of contract and are in illegal possession of the suit land ? ...

Later on, two additional issues were framed:

Whether the suit is not maintainable in the present form ?

2, Whether the suit of the Plaintiff is barred by the time of limitation ?

The learned trial Judge decided Issue No. 1 and Additional Issue No. 2 in favour of the Plaintiff. Under Issue No, 2, he held that the Defendants had paid Rs. 1,000/- to the Plaintiff. Issue No. 3 was decided against the Defendants and it was held that they were in illegal possession of the suit land and could not use the shield of Section 53-A of the Transfer of Property Act. Consequently, he decreed the suit for possession.

Dissatisfied, the Defendants went up in appeal which was allowed by the learned Additional District Judge. He upset the material findings of the trial Court He came to the conclusion that parties had entered into an agreement and executed a writing from which the terms can be ascertained with reasonable certainty. The Defendants had in part performance of the contract taken possession of the suit land. The transferees had done something in furtherance of the contract and that the transferees had performed or were willing to perform their part of the contract. The two factors which had weighed with the trial Court, namely, the conduct of the Defendants in not replying to the noticed issued by the Plaintiff and the non-payment of the balance amount of Rs. 800/- were considered to be of no consequence by the learned lower Appellate Court He recorded the firm finding that all the four requirements of Section 53A of the Transfer of Property Act were satisfied by the Defendants. They had entered into an agreement for the transfer of the mortgagee rights and had entered into possession as part performance of this contract and had taken steps in furtherance of this contract by paying Rs. 1,000/- to the Plaintiff and they had been and were ever ready to perform their part of the contract. After recording these findings, he allowed the appeal, set aside the judgment and decree of the learned trial Judge. Aggrieved, the Plaintiff has come up in second appeal.

Mr R. C. Dogra, learned Counsel for the Appellant has argued that the mandatory requirements of Section 53-A of the Transfer of Property Act (hereinafter referred to as ''the Act'') had not been satisfied in the present case. The Defendant-Respondents had failed to perform their part of the contract. They had not paid the balance of Rs. 800/- to the Plaintiff and had taken no steps whatsoever to get the Mortgage Deed executed. It was their duty to complete the contract after making the payment of the balance amount. The Mortgage Deed had to be got registered within two months of the execution of the agreement. This could be done only by the Defendants by making the payment in time. Not only that, the Defendants never cared even to reply to the notice served on them by the Plaintiff. After the execution of the agreement of mortgage, the Defendants had taken no steps in furtherance of the agreement. They had never been willing to perform their part of the agreement For that reason, they never asked the Plaintiff to fulfil his part of the contract executing the Mortgage Deed. The Plaintiff had always been ready and willing to perform his part of the agreement.

Mr. R. L. Sarin, learned Counsel for the Defendant-Respondents has controverted the submissions made by Mr. Dogra. He has contended that the Defendants had fulfilled all the requirements prescribed by Section 53-A of the Act to defend their possession.

It will be useful to read the provisions of Section 53-A of the Act at the threshold:

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 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 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 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.

The final Court had occasion to define the scope of Section 53-A of the Transfer of Property Act in Nathulal Vs. Phoolchand, :

The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:

(1) 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;

(2) 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;

(3) that the transferee has done some act in furtherance of the contract; and

(4) that the transferee has performed or is willing to perform his part of the contract.

If these conditions are fulfilled 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 therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee 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.

There is in this case a contract to transfer for consideration, immoveable property by writing signed by Nathulal from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty . ......

It is the admitted case of both the parties that the first two conditions in the case had been satisfied by the parties. The main dispute is on Conditions Nos. 3 and 4. It is elaborated by Mr. Dogra that after the execution of the agreement, the Defendants had taken no steps for the completion of the agreement for mortgage. They had not paid the balance amount of Rs. 800/- and had never approached and demanded of the Plaintiff to execute the Mortgage Deed in their favour. He also contended that Condition No 3 could be fulfiled by some overt act done or steps taken by the Defendants independent of the execution of the agreement for mortgage. This submission cannot be accepted. The very precise argument had been raised in Nathulal''s case (supra). It was observed as follows ;

----In part performance of the contract. Phoolchand has taken possession of the property and he had in pursuance thereof paid an amonnt of Rs. 22,011(sic) P. The argument raised by counsel for Nathulal that the act done in pursuance of the contract must be independent of the terms of the contract cannot be accepted. The first three conditions, for the defence of part performance to be effectively set up by Phoolchand exist Mr. Shroff for Nathulal hovever contends that Phoolchand was not willing to perform his part of the contract. (Emphasis supplied)

Mr. Sarin has stated that by paying Rs. 1,000/- and entering into possession, the Defendant-Respondents satisfied Condition No. 3. This plea is fully supported by the observations of their Lordships, reproduced above

Mr. Dogra challenged the findings of the learned lower Appellate Court on Condition No 4. The learned Additional District Judge relying on the statement of Suba Singh Defendant-Respondent has recorded a finding of fact that the Defendants had been ever willing to perform their part of the contract. He had preferred to accept the statement of Suba Singh to the one made by Deputy Lal Plaintiff and for good reason. The Plaintiff nowhere stated that the Defendants were not willing to perform their part of the contract, whereas there is a positive assertion on the part of Suba Singh to this effect. It is true that the Plaintiff had given a notice to the Defendants and that they failed to send any reply to the same, but the contents of the notice are not helpful to the Plaintiff. By this notice, the Plaintiff had intimated that he had cancelled the agreement for mortgage and that the Defendants were liable to pay for the use and occupation of the land in dispute. By this notice, the Plaintiff had not informed the Defendants that he was willing to perform his part of the contract and had not demanded of them to perform their part of the contract. Similarly, the mere fact that the Defendants had not persisted in making the payment of Rs. 800/- to the Plaintiff will not defeat their defence of possession. The statement of Suba Singh that he was willing to perform his part of the contract having been accepted, the case of the Plaintiff falls to the ground.

12 For the foregoing reasons, I find no merit in this appeal. The same is dismissed. There will, however, be no order as to costs.