Royappa Chetti vs Andalammal

Ramachandra Iyer, C.J.—We agree with Ramaswami, J. that the judgment and decree of the learned District Judge in the present case cannot be supported but for a reason different from what the learned Judge has stated. The facts which have led up to this appeal are these. The appellant was originally the owner of the property which forms the subject-matter of this litigation. He became indebted to a certain person ; there was a suit for the realisation of the debt, which ultimately resulted in a Court-sale of the properly. The property was purchased by Andalammal, the decree holder, and the same was duly delivered to the purchaser. At the time of the delivery, certain mediators, who were evidently interested in the appellant, interceded. An agreement was entered into on that date, under which it was stipulated that, on the appellant paying Andalammal a sum of Rs. 500 the property which formed the subject matter of the purchase in Court auction were to be transferred by her to the appellant. It was also stipulated that a sum of Rs. 100 be paid forthwith and the balance of Rs. 400 should be paid within two months from that date. Possession of the property was immediately delivered over to the appellant and it can be taken that such possession was delivered to him under the agreement aforesaid. The appellant did not, however, pay the sum of Rs. 400 within the time agreed to or at any later time. The decree-holder-purchaser thereupon sold the property to the respondent herein, who instituted the suit out of which this appeal arises, for recovery of possession of the same from the appellant. The appellant pleaded that he had actually paid the sum of Rs. 400 and that he was therefore protected by the principle of part-performance recognised in S. 53A of the Transfer of Property Act. The learned District Munsif found that the plea of payment of Rs. 400 was false, a finding which was accepted by the learned Judge on appeal and he decreed the suit. The appellant filed an appeal against that judgment to the District Court, Chingleput. The learned District Judge, while affirming the finding that the appellant had not paid the balance of the purchase money some how came to the conclusion that the principle of part performance would apply to the case and he dismissed the suit by allowing the appeal. We are, however, unable to understand how it can be so held to be consistent with the finding arrived at by the lower Court that there was no payment of the balance of purchase money by the appellant. In upholding the appellant''s claim, the learned District Judge stated : Part-performance no longer being an equity, it follows that it could cot be negatived merely on the ground that the entire consideration for the agreement had not been paid, as the lower Court has pointed out.

In making these observations the learned District Judge had failed to consider the the terms of S. 53A. That section states inter alia that the transferee should have either performed or be willing to perform his part of the contract. As stated earlier he himself had found that the transferee did not perform his part of the contract, viz., that of paying Rs. 400, the balance of the purchase money. The question then is, was he willing to perform his part of the contract ? There was no indication at any stage of the proceedings that the appellant was ever ready to perform his part of the obligation. There is no averment in the pleadings that he was at ail ready to pay this sum of Rs. 400, if his plea as to payment were to be held not proved. There was not even an offer before the lower Court to pay the amount. The very fact that the appellant falsely alleged that he made the payment would seem to indicate that he was not ready to make the payment and thus perform his part of the contract. The result of his erroneous view taken by the learned District Judge was that the appellant''s appeal was allowed. Ramaswami, J., has set aside that judgment. The learned Judge considered that the contract of sale was one where time was the essence and that, as the appellant had not paid the money within the time stipulated, he could not be allowed to enforce the contract. But it must be noticed that this is not a case for specific performance by the appellant. The appellant was in possession of the property. He sought to protect that possession by invoking the doctrine of part performance. What he has got to prove was that, in pursuance of the contract, he was let into possession of the property, and he, on his part, had either performed or was willing to perform his part of the contract. There is no doubt that the first of the two requirements has been satisfied in that the possession of the property was given to the appellant in pursuance of the contract. As regards the second, the appellant having failed to substantiate his plea that he had paid the sum, it has to be held that he was not ready to perform his part of the contract. We are of opinion that the appellant on the facts stated above will not be entitled to rely on S. 53-A, and thus defeat the title acquired by the respondent.

Mr. C. S. Rajappa, appearing for the appellant, took the stand that the mere fact that the appellant did not aver in his written statement that he was ready to perform his part of the contract would not disentitle him to rely on the doctrine of part performance. Learned Counsel relied in this connection on the decision of T.S. Karthikeya Mudaliar Vs. Singaram Pillai and Another, . It was observed in that case that, so long as there was proof that the party relying on S. 53A, of the Transfer of Property Act was ready and willing to perform his part of the contract, since the time of the agreement, no specific pleading to that effect as in the case of suits for specific performance would be necessary. But the defect in the appellant''s case is not merely the lack of a proper plea in the written statement; actually, there have not been any readiness and willingness on the part of the appellant, to perform his part of the contract. This is shown by the fact that, all along, he had been contending that he had paid the balance of the purchase money, while, in fact, he had not done so. Reliance is then placed on the decision of Balakrishna Aiyar, J, in Gopal v. Kannan (1953) 1 M.L.J. 813, for the proposition that payment of money would not be an act in furtherance of the contract. We do not see how that decision can at all help the appellant. The learned Judge has distinctly held that, in certain circumstances, payment of money also be sufficient to constitute part performance and would be sufficient compliance with the requirements of S. 53A. The question now is not so much as whether or not money has been paid, but whether the appellant, who wants to rely on the doctrine of part performance, was ready to perform his part of the contract. The part of his contract which he was bound to perform was payment of the balance of the purchase money. That, he was not ready or willing to pay. The decision in Mastram v. Ma Ohn 1934 Rang. 284, is not of much relevance to the present case, as in fact, there was a payment of money before the matter came up before the Court. We are, therefore, of opinion that the learned District Judge was in error when he held that it was open to the appellant to rely on the doctrine of part performance even after repudiating his obligation to pay the balance of the purchase money to the respondent''s predecessor-in-title. The appeal fails and is dismissed with costs.