1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.395 OF 1991 Pralhad Krishnaji Garud, died per Legal Representatives - 1) Rukhminibai w/o Pralhad Garud; 2) Prakash s/o Pralhad Garud; 3) Sulabha d/o Pralhad Garud; 4) Padma w/o Udaykumar Masker ..APPELLANTS (orig.Defendants) VERSUS Raghunath s/o Deorao Domle Died, per Legal Representatives - 1) Ramrao s/o Rangnath Domale; 2) Balchandra s/o Rangnath Domale; 3) Bhausaheb s/o Rangnath Domale; 4) Laxmibai w/o Rangnath Domale. ..RESPONDENTS (orig.Plaintiffs) --- Mr.MN Navandar, Advocate for the appellants. Mr.S.S.Bora, Advocate for Resp.Nos. 1 to 3. --- CORAM : K.U.CHANDIWAL, J. DATE : 26th June, 2009 *** ORAL JUDGMENT : 1) Heard Counsel extensively. 2) RCS No.144/1980 was dismissed by CJJD, Ambad, however, learned Additional District Judge in RCA No.148/1984 by Judgment dated 26th April, 1991, decreed the suit, set aside the dismissal 2 and consequently, the aggrieved defendant is in Second Appeal, assailing the findings of the learned Additional District Judge. 3) On 27th August, 1991, the appeal came to be admitted, issuing notice on grounds nos. 3, 4, 8 and 10 as substantial questions of law between the parties. The grounds are as under ; “(3) Whether the Plaintiff is entitled to relief of possession when his claim that he mortgaged the suit land in the year 1953 and had executed an Isarpawati instead of mortgage-deed has not been proved. (4) Whether it is necessary to plead willingness and readiness of performance of contract, when the Defendants have paid full consideration of the sale of the suit land. (8) Whether the fact of delivery of possession not mentioned in the agreement of sale, but admitted by the Plaintiff does not prove possession of the Defendants in pursuance of agreement of sale dated 26th December, 1952. (10) Whether the case reported in 1991 Maharashtra Law Journal page 256 is applicable to the present case and the same is the good law.” 4) The parties are referred with their original status as plaintiff and defendant. 5) The plaintiff and defendant, due to 3 their old ages are no more, and during pendency of the litigation, respective legal representatives of both sides are brought on record. 6) The plaintiff came with a case that Exhibit-41, impugned Isarpawati (agreement of sale) was executed by him in favour of the defendant in respect of half portion of Survey No.24/2 to the extent of 12 acres 15 gunthas. The plaintiff contended, indeed it was not a transaction of sale between the parties, but the latent contract was of a mortgage to redeem the property after 20 years. In plaint para 2, the plaintiff states as under - “2. That, the deceased plaintiff was in need of money, so he obtained Rs.3,000/- O.S. Fro the deceased defendant in the year 1953 and the suit land was mortgaged by the deceased plaintiff in favour of the deceased defendant and deceased defendant was put in possession of the suit land by the deceased plaintiff on that day. Since then the suit land is in possession of the defendant. On the same day, an Isarpawti was executed by the deceased plaintiff in favour of the deceased defendant which is written by the SK.Farid s/o Sk. Maheboob and was attested by Ramrao s/o Asaru Pandhare, both R/o of village Ramgavan Bk. Tq. Ambad.” 4 7) Reading this averment in the plaint, the contention based by Mr.Bora for the respondent/plaintiff, that no possession was given on the date of agreement of sale, is misplaced. It was the plaintiff himself, who in unequivocal terms accept, having parted with possession, but tried to put a camouflage to the language. 8) Then comes the contention that there was no readiness and willingness on the part of the plaintiff/seller to perform his part of contract and for that according to the counsel for the seller/plaintiff, the agreement, Exh. 41, inter alia, provide that the expenses for the document were to be contributed equally and since the purchaser/defendant did not adhere to such compliance, his readiness and willingness cannot be read in the eyes of law. 9) The document, at Exh. 41, in unequivocal terms illustrates of parting entire sale consideration of Rs.3,000/- in favour of the plaintiff/seller of the property. Indeed so far as this part of the contract is concerned, nothing was obligatory for the purchaser to comply with. The theory that equal contribution for sale-deed was paramount aspect, though is coined at this stage and rather also referred by 5 the learned Additional District Judge in paragraph 5 of his judgment, does not find place in pleadings. Skipping this aspect of lack of pleading, the fact remains whether the contribution of expenses by both the parties, referred in the document, will because of betrayal to the terms of agreement, Exh.41, will have consequence upon invalidating effect of Section 53-A of the Transfer of Property Act. I find, this observation of the learned District Judge that non-contributing or not suggesting to this effect by the purchaser, by itself will be fatal to him, is incorrect proposition of law. 10) The Counsel for the plaintiff/seller placed reliance to the Judgment of the Apex Court in the matter of A.Lewis & Anr. Etc. Vs. M.T.Ramamrthy & Ors. - 2008 AIR (SC) 494. In paragraph 6, the Hon’ble Lordships have observed - “ As rightly pointed out by the High Court, the existence of right to claim protection under Section 53-A of the Transfer of Property Act would not be available if the transferee just kept quite and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness.” 11) In that case, the Hon’ble Lordships 6 found that there was no intimation by defendant nos. 3 and 4 to preform their part of contract to claim protection under Section 53-A of the Transfer of Property Act and consequently, observed that Section 53-A will not be available as a shield. This is not the case in hand. The parties unequivocally accepted that the price referred in the document is parted by the purchaser on the date of agreement and it is a matter of record, the purchaser/appellant is in possession of the property. The mutation entries indicate that he has enjoyed the possession persistently since date of agreement. One of the mutation entries of 1978-79 even highlights that agriculture finance is availed by the defendant from the credit cooperative society. 12) The Counsel for the plaintiff/seller placed his reliance to the judgment of Lotan Ramchandra Shimpti and Ors. Vs. Shankar Ganpat Kayasth and Ors. - 1994 (4) Bom.C.R. 575. It was the matter concerning inhibition of sale transaction in view of bar created under Section 32G and 43 of Bombay Tenancy and Agricultural Lands Act, 1948. These aspects, will not be applicable to the present case, as the status of the purchaser (appellant) is shown in the plaint to be an agriculturist and while giving evidence, son of the deceased appellant has stated himself to be an agriculturist and they are in service. 7 He has also stated that since having crunch, he could not carry agricultural operations for persistent two years and the land was allowed to be barren. However, his cross-examination also reveals that the agricultural activities indeed were carried even after demise of the original purchaser by his legal representatives. The net effect is the bar of Section 47, to which learned Additional District Judge has given reference, will not be available to be coined and put into acceleration. 13) The position of law has been highlighted by the pronouncement of Apex Court in the matter of Shrimant Shamrao Suryawanshi and Anr. Vs. Pralhad Bhairoba Suryavanshi (Dead) By. L.Rs. And Ors. - (2002) 3 SCC 676. By the said judgment, the Hon’ble Lordships have approved the judgment of Full Bench of this Court reported in 1994 Mah.L.J. 1145 (FB) in the matter of Mahadeo Nathuji Patil Vs. Surjabai Khushalchand Lakkad. It is pertinent in the matter of Mahadeo Patil Full Bench has set aside the earlier judgment reported in 1991 Mah. L.J. 256 in the matter of Adinath Limbaji Navte and Ors. Vs. Policemen Housing Society, Beed and Ors. . This is so referred in this judgment because learned Additional District Judge in paragraph 6 of his judgment, based his reliance to the Judgment of Adinath Navte to negative the contention of 8 appellant herein. 14) To revert back to the position of benefit of Section 53-A, the Judgment in the matter of Shrimant referred above and particularly paragraph 16 thereof is essential, which is reproduced as under : “16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the 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; and (6) the transferee must have performed or be willing to 9 perform his part of the contract.” 15) Reading these details in consonance and in tune with the pleadings and evidence adduced by the parties, the effect is there was a contract between the plaintiff and defendant to transfer for consideration of the immovable property, reduced in writing, signed by both of them, the terms in the said agreement (Exh.41) was necessarily providing intention to transfer the property. The transferee, in part performance of the contract, has taken possession of the property. The transferee has, by making remittance of entire sale consideration, performed his part of the contract and by the very conduct, it should be construed that he was always willing and ready to performance his part of the contract. It was only a conveyance that was left to be executed, for which, the obligation was cast on the plaintiff and the defendant as well. It could not have been singled out at the shoulder of the purchaser. 16) The theory of mortgage, as propounded by the plaintiff in paragraph 3 of the plaint, is not established. The evidence is short to accept the same. The long drawn silence of the plaintiff since 1953 till filing of the suit in 1980 speaks volume against his conduct. Even if 10 one assumes that there was a lease of life for 20 years to be in possession of the property by the purchaser, the fact remains what positive steps the plaintiff, as a owner of the property, has taken. The record shows contrary. The possession of the defendant is allowed to be enjoyed quietly and peacefully including allowing him to create encumbrance on the property without any obstruction, he was allowed to develop the property. There is no whisper at least from 1973 till the suit as to what made the plaintiff not to object at any place. This conduct of the plaintiff in the matter of this nature, will not be entitling him to seek possession of the property. 17) The substantial questions of law, as formulated by this Court, are established against the plaintiff that he is not entitled to possession of the property as he has not established having entered into a mortgage transaction in the year 1953. The Isarpawati (Agreement of sale), being accepted to be executed, will be against the plaintiff. It was not imperative for the defendant to have pleaded in his written statement that he was always ready and willing to perform his part of contract as the very nature of the suit was for possession, it was not contemplating breach of any terms of agreement. On the other hand, the plaintiff came 11 with a case of mortgage and equally of parting possession on the date of agreement of sale. The fact of delivery of possession not mentioned in the agreement of sale by itself will not be fatal as on the date of agreement dated 6th December, 1952, as per paragraph 2 of the plaint, the plaintiff accepts he parted possession in favour of the purchaser. The judgment reported in 1991 Mah.L.J. 256 (cited supra) will not be applicable to the facts of this case. The substantial questions of law are answered in above terms. 18) The Second Appeal allowed. The Judgment and decree of the appellate court is set aside and suit of the plaintiff is dismissed. No costs. Sd/- ( K.U.CHANDIWAL) JUDGE bdv/sa395.91 Authentic copy (BD VADNERE,PS)