IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.11.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.1049/2003 1.Pappammal (Died) 2.N.Sivasubramanian (Died) 3.N.Gurusamy 4.S.Maheswari 5.Minor S.Saravana Kumar 6.Minor S.BharaniSuriya Appellants/Plaintiffs (rep.by its Mother S.Maheswari Appellants 4 to 6 brought on record as LRs of the deceased appellants 1 & 2 vide order of Court dated 12.2.2010 made in CMP.No./204/10) Vs 1.Sarojini 2.N.G.R.Industrial Workers Cooperative Housing Society Ltd by its Special Officer K-1704, Vardharajapuram Coimbatore 641015 Respondents/Defendants Prayer:- This Second Appeal is filed under Section 100 of C.P.C. against the Judgement and Decree dated 6.2.2003 passed in AS.No.67/2001 by the learned III Additional Sub Judge, Coimbatore, confirming the Judgement and Decree dated 20.4.2001 passed in OS.No.2327/1996 by the learned II Additional District Munsif, Coimbatore. For Appellant : Mr.S.Chinnasamy, SC for M/s.S.T.S.M.Murthy For Respondent : Mr.T.M.Hariharan-R1 No Appearance-R2 JUDGEMENT The 1st respondent herein/plaintiff has filed the suit in OS.No.2327/1996 to pass a judgement and decree against the appellants 1 to 3 herein/the defendants 1 to 3, (a) declaring that the defendants 1 to 3 have no right in the suit property, (b) for delivery of possession of the suit property to the plaintiff, (c) directing the defendants 1 to 3 to pay past damages of Rs.9600/-, (d) directing the defendants 1 to 3 to pay future damages at the https://hcservices.ecourts.gov.in/hcservices/ rate of Rs.400/- p.m. from the date of the suit till the date of delivery of possession and (e) for costs. 2. The case of the Plaintiff as set out in the plaint is as follows:- a. The suit property and the other properties belonged to the 4th defendant, namely, N.G.R.Industrial Workers Cooperative Housing Society Limited and only the bona fide members of the Society are eligible to be allotted a property. The father of the plaintiff Chinnaswamy Naidu was the member of the 4th defendant Society and he was allotted the property at Door No.19, in site No.55 in S.Nos.450, 451 and 452/1A Singanallur and he was in possession and enjoyment of the same as an allottee. The father of the plaintiff died on 10.8.1981 leaving behind his widow, Rajamanickam and the plaintiff as his heirs. The mother of the plaintiff has given a consent letter to the 4th defendant Society for transferring the property to the plaintiff and the 4th defendant Society recognised the plaintiff as the lawful owner of the property as per deed of conveyance dated 7.5.1990. The plaintiff has been paying the taxes and other charges to the Coimbatore Corporation. b. The alleged agreement dated 19.11.1978, said to have been entered into between late Chinnaswamy Naidu and one Nachimuthu gounder, who is the husband of the 1st defendant and the father of the defendants 2 and 3 agreeing to sell the suit property to Nachimuthu gounder, is not a true and valid document. Even if the said agreement is true, it will not bind the plaintiff. The alleged agreement of sale is in contravention of the by-laws of the Society, which prohibits any member from assigning, subletting or parting with the possession of the property without prior permission of the Board of Directors of the 4th defendant Society. But, no such permission was obtained by the father of the plaintiff. Therefore, the alleged agreement and the entire transaction are illegal and not enforceable in law and hence, the defendants 1 to 3 are the trespassers and they are liable to pay damages to the plaintiff at the rate of Rs.400/- per month and to pay Rs.9600/- towards past damages and to pay future damages from the date of the suit till the date of delivery of possession at the rate of Rs.400/- p.m. The plaintiff sent a notice dated 14.10.1992 to Nachimuthu Gounder and to the 4th defendant Society. On return of the postal cover, the plaintiff came to know that the said Nachimuthu Gounder died and the 4th defendant Society refused to receive the notice. Thereafter, another notice dated 15.11.1992 was also sent to the defendants 1 to 3. In such circumstances, the suit has been filed. 3. In the Written Statement filed by the Defendants 1 to 3, it is averred as follows:- a. The plaintiff filed the suit with false pleadings in order to deceive and defraud the defendants 1 to 3. The plaintiff https://hcservices.ecourts.gov.in/hcservices/ and her mother suppressed the notice dated 28.4.1990. The father of the plaintiff entered into an agreement with Late Nachimuthu Gounder for the sale of the suit property and the same was attested by the mother of the plaintiff and three others. Late Nachimuthu Gounder was put in vacant possession of the suit property on 19.11.1978 and he paid amounts as per the terms of the agreement and made improvements in the suit property by spending huge amounts. The defendants 1 to 3 are complying with the terms of the agreement. The father of the plaintiff died intestate leaving behind the plaintiff and her mother and they agreed to execute the sale deed, but took time till the 4th defendant Society executes the conveyance deed. In 1990, the defendants 1 to 3 came to know from the 4th defendant Society that the Society was ready to convey the property. Late Nachimuthu Gounder informed the same to the plaintiff and her mother, but they evaded to get the conveyance deed in the name of the late Nachimuthu Gounder. b. Late Nachimuthu Gounder issued a legal notice dated 28.4.1990 to the plaintiff, but there was no reply. The plaintiff and her mother waited from 19.11.1978 till this date and created some documents and receipts after the said notice dated 28.4.1990 and filed the suit and hence, the suit is barred by limitation. The defendants 1 to 3 are enjoying the property from 19.11.1978 to 14.10.1992. The plaintiff and her mother are aware of the agreement executed by Late Chinnasamy Naidu. In order to defeat and defraud the defendants 1 to 3, the plaintiff's mother obtained the conveyance deed from the 4th defendant Society in the name of the plaintiff. Hence, the suit is liable to be dismissed. 4. In the Written Statement filed by the 4th Defendant Society, it is averred as follows:- The Society was not informed about the agreement dated 19.11.1978 entered into between the father of the plaintiff and the husband of the 1st defendant. The said agreement is not maintainable in law, as the same was not executed as per the by- laws of the Society. The Society was not aware of the death of the father of the plaintiff and the Nachimuthu Gounder. There is no cause of action as against the 4th defendant Society. On 7.5.1990, the 4th defendant Society conveyed the suit property in favour of the plaintiff. There is no claim against the 4th defendant. 5. Before the Trial Court, on the side of the Plaintiff, Exs.A1 to A8 were marked and the Plaintiff examined himself as PW.1. On behalf of the Defendants, Exs.B1 to B25 were marked and Dws.1 to 3 were examined. 6. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit in respect of the prayer for past damages and decreed the suit in respect of the other prayers without costs and the appeal filed as against the same by the defendants 1 to 3 was dismissed by the lower appellate court, confirming the Judgement and Decree of the Trial Court. As against which, this Second Appeal has been filed. https://hcservices.ecourts.gov.in/hcservices/ 7. This Second Appeal has been entertained on the following substantial questions of law:- (a) Whether the courts below are right in holding that the appellants are not entitled to the benefit under Section 53A of the Transfer of Property Act? (b)Whether the courts below not right in holding that the non-joinder of mother of the plaintiff is fatal to their case? 8. This court heard the submissions of the learned counsel on either side and also perused the judgements of the court below and the materials on record. 9. The case of the 1st respondent herein/plaintiff is that Nachimuthu Gounder was in possession of the suit property under the specific permission given in Ex.B2, the agreement of sale dated 19.11.1978 entered into between Nachimuthu Gounder, the husband of the 1st appellant/1st defendant and the father of the defendants 2 and 3 on the one hand and the father of the plaintiff on the other hand and the said possession remain unaltered even subsequently. The defendants 1 to 3 were never ready and willing to get the sale executed in their favour and there has been no response to Ex.A7 notice dated 15.11.1992 issued to the defendants 1 to 3 or to the earlier notice Ex.A6 addressed to Nachimuthu Gounder which was returned unserved with an endorsement “dead”. It is the case of the plaintiff that Ex.B2 agreement is illegal as opposed to the by- laws of the 4th respondent Society and unenforceable in law and therefore, the defendants 1 to 3 are deemed to be trespassers in law and they cannot claim any title or possession against the plaintiff. On the above said pleadings, the plaintiff has prayed for the relief of declaration that the defendants 1 to 3 have no right in the property and for delivery of possession with past and future damages. 10. The appellants 1 to 3/the defendants 1 to 3 resisted the suit by contending that Nachimuthu Gounder was put in possession of the suit property on 19.11.1978 pursuant to Ex.B2 agreement and he has made improvements in the suit property, as he was permitted to make improvements even under the specific clause in the agreement. The defendants 1 to 3 were complying with the terms of the agreement and even as per the terms of the agreement as and when the 4th defendant Society comes forward to execute the sale in favour of the agreement vendor, the defendants 1 to 3 should pay the balance of the sale consideration and take the sale. Further when the defendants 1 to 3 came to know that the 4th defendant Society was ready to convey the property, Nachimuthu Gounder informed the same to the plaintiff and her mother by issuing Ex.B21 notice dated 28.4.1990. But, the plaintiff has taken Ex.A1 sale thereafter. It is the case of the appellants 1 to 3/the defendants 1 to 3 that they are in possession without any intrusions or any claim whatsoever from the plaintiff and her https://hcservices.ecourts.gov.in/hcservices/ mother and they have perfected title by ouster and adverse possession. 11. The courts below on appreciation of evidence held that the defendants 1 to 3 were never ready and willing to fulfill their part of the contract and having traced possession pursuant to Ex.B2 agreement of sale, they are not entitled to plead adverse possession. Though in the written statement the defendants 1 to 3 did not raise a plea claiming benefit under Section 53A of the Transfer of Property Act, but on hearing the arguments advanced on both sides the courts below have dealt with the said issue and held that as the defendants were never ready and willing to perform their part of the contract, they are not entitled to the benefit of Section 53A of the Transfer of Property Act (herein after referred to as the Act). It further held that Ex.B2 is illegal, as it is against the specific by-laws of the 4th defendant Society that prohibited such transaction for a stipulated period. Accordingly, the courts below granted a decree for declaration and recovery of possession and also granted a decree for future profits at the rate of Rs.400/- per month, but declined to grant a decree for past profits on the ground that the defendants 1 to 3 have paid the dues to the 4th defendant Society. 12. Mr.S.Chinnasamy, the learned Senior Counsel for the appellants assailed the findings of the courts below and contended that the courts below failed to see that the defendants 1 to 3 are entitled to the benefits of Section 53A of the Transfer of Property Act, as their possession is referable to Ex.B2 and they have spent huge amount to improve the property. The learned Senior Counsel would contend that the defendants 1 to 3 are entitled to the benefits of Section 53A of the Act and the mere fact that their claim for specific performance is barred by limitation will not disentitle them to the benefit of Section 53A of the Act. The learned Senior Counsel would contend that even if the remedy to file the suit for specific performance is barred, even then the right to protect his possession is available to the appellants, as it is settled law that the limitation do not apply to a defence taken by a defendant in order to protect his possession. 13. The learned Senior Counsel for the appellants placed reliance on the decision of this court reported in 2001-3-MLJ-257 [P.S.Sugumaran Vs. Ragini @ Usha and another] in support of his contention that notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law the contract remains valid and operative enabling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53A of the Act by way of defence in a suit brought against him for recovery of possession. 14. On the other hand, Mr.T.M.Hariharan the learned counsel for the 1st respondent would submit that there is no plea in the written statement claiming the benefits under Section 53A of the https://hcservices.ecourts.gov.in/hcservices/ Transfer of Property Act, whereas on the contrary, the plea projected in the written statement is that the defendants 1 to 3 have perfected title by adverse possession and by ouster. The benefit of Section 53A of the Act was canvassed only at the argument stage before the courts below and the courts below have dealt with the said issue and negatived the said plea on the finding that the defendants 1 to 3 were never ready and willing to perform their part of the contract. 15. The learned counsel for the 1st respondent would contend that the defendants 1 to 3, who claimed to be in possession of the suit property pursuant to the agreement of sale under Section 53A of the Act, cannot claim adverse possession. The learned counsel would place reliance on the decisions of the Honourable Supreme Court reported in 1990-4-SCC-706 [Achal Reddy Vs. Ramakrishna Reddiar and others] and 2000-3-SCC-708 [Roop Singh (Dead) by LRs Vs Ram singh (dead) by LRs]. 16. In 1990-4-SCC-706 cited supra, the Honourable Supreme Court has held as under:- “9. .... The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. 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 divestiture of all the rights of the transferor in the property and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel 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.” 17. In 2000-3-SCC-708 cited supra, reiterating the same view, the Honourable Supreme Court held that the pleas of adverse possession and retaining the possession by operation of Section 53A of the Transfer of Property Act are inconsistent with each other and once it is admitted by implication that the party came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the said party. 18. A learned single judge of this court placing reliance on the decision of the Honourable Supreme Court in the case of M.Subbiah Vs. T.Subbiah (died) and 13 others [2009-1-CTC-366] has https://hcservices.ecourts.gov.in/hcservices/ held that the party obtaining possession of the property in pursuance to sale agreement is not entitled to claim adverse possession and in such cases, the possession of the transferee until registration is permissive or derivative possession and further held that even if the sale agreement is invalid, the person who is in possession of property in pursuance to sale agreement is not entitled to claim adverse possession. 19. It is well settled that a person, who claims to be in possession of the suit property pursuant to agreement of sale under Section 53A of the Transfer of Property Act cannot claim adverse possession. In the instant case, the defendants 1 to 3 admittedly entered into possession pursuant to the agreement of sale Ex.B2 and it is rightly held by the courts below that the defendants 1 to 3 cannot claim adverse possession and rejected the said plea. 20. Admittedly, no specific plea was raised in the written statement that the defendants 1 to 3 are entitled to the benefits under Section 53A of the Transfer of Property Act. The said plea was raised at the argument stage and no doubt, both the courts have dealt with this issue, but, however, rejected their contention on the finding that the defendants 1 to 3 were never ready and willing to perform their part of the contract. It is well settled that in order to sustain a claim of protection under Section 53A of the Transfer of Property Act, the agreement vendees must prove their readiness and willingness, as stipulated under Section 16 of the Specific Relief Act and must be ready and willing right from the date of the agreement to the date of the suit. 21. It is no doubt true that Section 53A of the Transfer of Property Act gives a protective umbrella to the buyer of a property who enters into possession pursuant to an agreement to sell and has performed acts in furtherance of the agreement and if it is shown that he is willing and ready to perform his obligations under the agreement. But, a transferee, who wants to defend or protect his possession under Section 53A of the Act, has to plead and prove various facts which are necessary before which it could be urged that Section 53A of the Act applies. It is also settled law that limitation is not applicable to a plea taken in defence, unless an express provision is made in the Statute. Various Articles of the Limitation Act, 1963 show that they do not apply to a defence taken by the defendant in a suit and law of limitation bars only institution of an action in a court of law. The remedy of a plaintiff to enforce his right is distinct from the right of a defendant to put forward any defence to non suit the plaintiff. But the circumstances, under which the possession of the person invoking Section 53A of the Act should be protected, shall be established by pleading and it must be proved by acceptable evidence. It is not possible to come to the conclusion that the appellants were ready and willing to perform their part of the contract when there is no clear evidence to that effect. 22. In the instant case, in fact, no plea has been taken in the written statement with regard to the willingness and https://hcservices.ecourts.gov.in/hcservices/ readiness to pay the balance of the sale consideration. There is also no plea as regards the appellant discharging her part of the performance pursuant to the agreement of sale. Ex.B2 sale agreement stipulates that the agreement vendee has to take the sale, when the 4th defendant Society comes forward to execute the sale. The sale deed Ex.A1 has been executed by the 4th defendant Society in favour of the plaintiff on 7.5.1990. The cause of action has arisen in favour of the defendants 1 to 3 to seek for specific performance on the date of execution of sale by the 4th defendant Society in favour of the plaintiff. The notice issued by the plaintiff on 14.10.1992 in this regard has been returned unserved with the endorsement “dead” as is seen from Ex.A6 returned cover. Ex.A7 is the notice issued by the plaintiff to the defendants 1 to 3 dated 15.11.1992. The period of limitation i.e. three years period for the defendants 1 to 3 to seek specific performance ends as on 6.5.1993. The present suit has been filed by the plaintiff on 18.2.1993. The defendants have not filed any suit for specific performance or filed any counter claim in the present suit. Thus, it is evident that even after specific repudiation of the rights of the defendants 1 to 3 by the plaintiff, the defendants 1 to 3 have not came forward to enforce their rights under Ex.B2. 23. It is relevant to point out that the Honourable Supreme Court in 2002-3-SCC-676 [Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others] while holding that Section 53A of the Transfer of Property Act does not put any restriction to a plea taken in defence by a transferee to protect his possession under Section 53A of the Act even if the period of limitation to bring a suit for specific performance has expired, however, enumerated certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Transfer of Property Act. The necessary conditions are:- 1. There must be a contract to transfer for consideration of any immovable property. 2. The contract must be in writing, signed by the transferor, or by someone on his behalf. 3. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. 4. The transferee must in part performance of the contract take possession of the property or of any part thereof. 5. The transferee must have done some act in furtherance of the contract 6. The transferee must have performed or be willing to perform his part of the contract.” https://hcservices.ecourts.gov.in/hcservices/ 24. It is emphasized that if the above conditions are complied with, the law of limitation does not come in the way of a defendant taking a plea under Section 53A of the Act to protect his possession of the suit property, even though a suit for specific performance of a contract is barred by limitation. 25. One of such conditions enumerated by the Honourable Supreme Court in the decision cited supra is that the transferee must have performed or willing to perform his part of the contract. In the present case, it is not disputed that the defendants 1 to 3 have taken possession of the suit property in part performance of the contract. They have not brought any suit for specific performance of the agreement to sell within the period of limitation. There is no plea in the written statement that they were ready and willing to perform their part of the contract. 26. In Ex.B2 agreement, there is a clause that in case the agreement vendor commits default, the agreement vendee will be entitled to refund of advance and a quantified liquidated damages. Nothing prevented the defendants 1 to 3 to file a suit for specific performance contending that the damages will not be an adequate remedy. But, having failed to take any such action, they cannot, in seeking the benefit of the equitable relief under Section 53A of the Transfer of Property Act, attempt to re-write the contract and contend that they can retain possession dehors