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2024 SCC OnLine SC 3849
In the Supreme Court of India
(BEFORE J.B. PARDIWALA AND R. MAHADEVAN, JJ.)
Giriyappa and Another … Petitioner(s);
Versus
Kamalamma and Others … Respondent(s).
Special Leave Petition (Civil) No. 30804 of 2024 [Diary No(s).
56304/2024]
Decided on December 20, 2024
Advocates who appeared in this case:
For Petitioner(s) Mr. Anand Sanjay M. Nuli, Sr. Adv.
Mr. Akash Kukreja, Adv.
Mrs. Samina S., Adv.
Mr. Abhishekh Singh, Adv.
For M/s. Nuli & Nuli, AOR
For Respondent(s)
ORDER
1. Delay condoned.
2. This petition arises from the order passed by the High Court of
Karnataka at Bengaluru dated 23-8-2024 in Regular Second Appeal No.
1740/2008, by which the appeal filed by the petitioners - herein
(original defendants) came to be dismissed, thereby affirming the
judgment and order passed by the First Appellate Court and also the
judgment and decree passed by the Trial Court.
3. We have heard Mr. Anand Sanjay M. Nuli, the learned Senior
counsel appearing for the petitioners.
4. It appears from the materials on record that the respondents -
herein (original plaintiffs) instituted Original Suit No. 364/1988 for
declaration of title and recovery of possession.
5. The suit came to be decreed in favour of the respondents (original
plaintiffs). The Regular First Appeal filed by the petitioners - herein
came to be dismissed and so also the Second Appeal by the High Court.
6. In the Second Appeal, the High Court formulated the following
substantial questions of law:—
“(1) Whether the Courts below were justified in decreeing the suit
of the plaintiff, despite the defendant seeking the protection under
Section 53A of the Transfer of Property Act and also erred in not
construing the law on this point as has been laid down by the Apex
Court in the case reported in (2002) 3 SCC 676?”
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7. It is the case of the petitioners - herein that the respondents
(original plaintiffs) may be the lawful owners of the suit scheduled
property but they executed a sale agreement dated 25-11-1968 in their
favour agreeing to sale 2 guntas of land out of survey No. 24/9 for total
consideration of Rs. 850/- and since then the petitioners - herein came
to be in possession and enjoyment of the same.
8. The High Court while dismissing the Second Appeal observed in
Paras 18 and 19 as under:—
“18. Perusal of the Judgment of the trial Court in as much as the
first Appellate Court indicate that on detailed examination of the oral
and documentary evidence placed on record, they have come to a
conclusion that the defendant has failed to prove that plaintiff has
executed the Sale Agreement dated 25.11.1968 and put the
defendant in possession and enjoyment of the same. On the other
hand, the plaintiff has proved that the shed in the suit scheduled
property which is measuring one gunta was constructed by him
during 1982-1983 and during 1983-1984, defendant illegally
occupied the same. Before that he has also approached the Land
Tribunal, Tumakuru in G LRM-67/83-84 claiming occupancy rights
and it came to be dismissed on 15.05.1987 and it has attained
finality. The findings returned by the trial Court as well as the first
Appellate Court are consistent with the oral and documentary
evidence placed on record and as such, this Court finds no perversity
in the same.
19. When the defendant has failed to prove that plaintiff has
executed the Sale Agreement dated 25.11.1968 agreeing to sell 2
gunta out of survey No. 24/9 and he came in possession and
occupation of suit schedule property by virtue of the same, question
of providing protection under Section 53A of the T.P. Act does not
arise. Consequently, the ratio in the decision of the Hon'ble Supreme
Court in the case of Shrimant Shamrao Suryavanshi v. Pralhad
Bhairoba Suryavanshi (dead) by Lrs2 is not applicable to the case on
hand and accordingly, the substantial question of law is answered in
the negative.”
9. We are of the view that no error not to speak of any error of law
could be said to have been committed by the High Court in passing the
impugned judgment and order.
10. Section 53-A of the TP Act and Section 16 of the Specific Relief
Act, 1964 (for short, hereinafter to be referred to as “the 1963 Act”),
being of significant relevance are extracted hereunder:
“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
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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, 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 a 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.”
(emphasis supplied)
“16. Personal bars to relief.—Specific performance of a contract
cannot be enforced in favour of a person—
(a) who would not be entitled to recover compensation for its
breach; or
(b) who has become incapable of performing, or violates any
essential term of, the contract that on his part remains to be
performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be
established by the contract; or
(c) who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms of
the contract which are to be performed by him, other than
terms the performance of which has been prevented or waived
by the defendant.
Explanation.—For the purposes of clause (c)—
(i) where a contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or
to deposit in court any money except when so directed by the
court;
(ii) the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction.”
(emphasis supplied)
11. From the aforesaid, it is evident that the protection of a
prospective purchaser/transferee of his possession of the property
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involved, is available subject to the following prerequisites:
(a) There is a contract in writing by the transferor for transfer for
consideration of any immovable property signed by him or on his
behalf, from which the terms necessary to constitute the transfer
can be ascertained with reasonable certainty;
(b) 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;
(c) The transferee has done some act in furtherance of the contract
and has performed or is willing to perform his part of the contract.
12. In terms of this provision, if the above preconditions stand
complied with, the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and person(s) claiming
under him, any right in respect of the property of which the transferee
has taken or continue in possession, other than a right expressly
provided by the terms of the contract, notwithstanding the fact, that
the transfer, as contemplated, had not been completed in the manner
prescribed therefor by the law for the time being in force. Noticeably,
an exception to this restraint is carved out qua a transferee for
consideration, who has no notice of the contract or of the part-
performance thereof.
13. Section 53-A of the Transfer of Property Act was inserted partly
to set at rest the conflict of views in this country, but principally for the
protection of ignorant transferees who take possession or spend money
in improvements relying on documents which are ineffective as
transfers or on contracts which cannot be proved for want of
registration. The effect of this section, is to relax the strict provisions of
the Transfer of Property Act and the Registration Act in favour of
transferees in order to allow the defence of part performance to be
established.
14. Section 53-A is an exception to the provisions which require a
contract to be in writing and registered and which bar proof of such
contract by any other evidence. Consequently, the exception must be
strictly construed.
15. In view of the aforesaid, this Special Leave Petition fails and is
hereby dismissed.
16. Pending applications, if any, also stand disposed of.
———
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