{1} IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.298 OF 1990 01- Kachru s/o Pandurang 02- Laxman s/o Pandurang 03- Harichandra s/o Pandurang All R/o Khirdi Tq. Khultabad Dist. Aurangabad. APPELLANTS. VERSUS 01- Maroti s/o Trimbak 02- Asaram s/o Maroti 03- Bhimrao s/o Maroti 04- Pandurang s/o Jayaji All R/o Khirdi Tq. Khultabad Dist. Aurangabad. RESPONDENTS. *** Shri S.S.Choudhari, advocate for appellants. Shri A.S.Bajaj, advocate for respondents. *** Coram : K.U.Chandiwal, J. Date: 23rd June 2009. {2} ORAL JUDGMENT: 01- Heard the learned counsel extensively. The plaintiffs being dissatisfied with the judgment and decree dated 11/03/1986 and the appellate decree dated 13/03/1990 are in Second Appeal. 02- On 25/09/1990 the appeal was admitted on following substantial questions of law. “Availability of defence of Sec.53-A of the Transfer of Property Act, is the substantial question of law.” 03- The parties are referred to their original status as plaintiffs and defendants. 04- The plaintiffs came with a case that they constitute a joint family with their father Pandurang defendant no.4. The agreement of sale of the suit property by said Pandurang in favour of defendant nos.1 to 3 is the controversy. The plaintiff claims there was no legal necessity for defendant no.4 for entering into sale transaction, it was effected when Pandurang was unable to understand the consequences, no consideration was paid. The transaction did not convey any title in favour of defendant nos.1 to 3. The defendants have dispossessed the plaintiffs on 26/01/1979 and {3} unauthorizedly have taken yield of the suit property. 05- The defendants came with a specific case, that it was Pandurang who, by virtue of the terms dated 15/05/1976 recorded in Isar Pavati, agreed to sell the suit land, one of the plaintiff was a signatory. Consequence thereupon, defendant nos.1 to 3 are in possession of the property. It is denied that Pandurang was addicted to any vices or that there was no need to sell the property. It was canvassed that the sale was certainly for meeting legal necessities for meeting marriage expenses of daughter of Pandurang and also one of the plaintiff. The defendant also asserted that out of the sale consideration received by Pandurang, he has purchased bullocks and also cleared debt of a cooperative bank. The defendants assert that their possession is protected by virtue of Sec.53-A of the Transfer of Property Act. They have completed their part of performance. Entire sale consideration is paid. It was the defendant no.4 who was dodging to perform his part of contract without their being any reason to do so. 06- The plaintiff did not adduce evidence to depict vices of Pandurang. The legal necessity has been high-lighted and proved by the defendants by examining the witness DW-2 who has sold bullocks to Pandurang for Rs.1,400/- and incidentally such purchase by Pandurang is accepted by the plaintiffs in their respective evidence. {4} 07- The plaintiff accepted that he and his sister was married after the sale agreement and there was no other income source for father to meet the marriage expenses. It is conscious that the parties are inter-se related and during the course of submissions, the learned counsel informed that even after the dismissal of the suit or the appeal the matter is worked out between the parties. However, I am not inclined to advert and ponder upon this position, as document is not part of the court proceeding. 08- It is more than clear and established that based on Isar Pavati dated 15/05/1976 entire price of Rs.16300/- was paid rather Rs.200/- more was paid. The possession of the property is handed over to the defendants nos.1 to 3 and they are enjoying it. There is no suit for specific performance filed by the plaintiff. There is no controversy that agreement of sale itself will not confer title to the vendee unless there is a transfer of sale by registered conveyance. 09- Now, about the possession of defendant nos.1 to 3, needs to be seen. The position of law has been enumerated in the matter of Shrimant Shamrao Suryavanshi & another Vs. Pralhad Bhairoba Suryavanshi, AIR 2002 SC 960. This appeal is dated 25/09/1990 and the judgment of the Apex Court is dated 22nd Jan., 2002. The Hon’ble Lordships of the Supreme Court {5} have observed; “A perusal of S.53-A shows that it does not forbid a defendant – transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant – transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, Court has to interpret the provisions of S.-53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of Sec.53-A of the Act”. 10- Their Lordships have categorised the situation, in which protection under Sec.53-A of the Transfer of Property Act is available as indicated in para no.13, 14 and 18 thereof. The observations of their Lordships in para 14 are as under; “But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under S.53-A of the Act. The necessary conditions are; 01) there must by a contract to transfer for consideration any immovable property; 02) the contract {6} must in writing, signed by the transferor, or by someone on his behalf; 03) in 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 perform his part of the contract. 11- The evidence for defendant no.1 to 3 in unequivocal terms illustrate that based on isar-pavati [agreement of sale] Ex.44, they have received possession. They have made payments from time to time. Such payments are established and for this, there is elaborate discussion by both the Courts. The ‘tagai’ receipt are produced at Ex.33/1 to Ex.33/6 which portray that a loan received by Pandurang defendant no.4, has been repaid by defendant no.3 by remittance of Rs.7115/- in the name of defendant no.4. In the year 1976-1977 an amount of Rs.2300/- was paid to the defendant no.4 at the time of marriage of his daughter. The contention that entire amount was not used for legal necessity could not be further coined in view of the evidence and its correct acceptance by the learned judges. 12- It was not expected of defendant no.1 or other defendants to verify as to whether the defendant no.4 has appropriated the sale {7} consideration to its logical end for the legal necessity. A rational enquiry and proper care in the matter as is expected by a purchaser has been done and proved by the defendant nos.1 to 3 in their respective evidence. No other steps from the defendants could be accelerated. It is pertinent that the agreement to sell was signed by plaintiff no.1 and still he has audacity that the sale transaction entered into by his father, was not for legal necessity or that his father was addicted to vices, it is apparent that he wanted to blow hot and cold at the same time and wanted to take advantage of the situation. 13- In the situation as projected, the appeals sans merit. The protection as carved out under Sec.53-A of the T.P. Act will be available as an umbrella / shield to the defendants. Consequently the defence being available, the substantial question of law formulated on 25/09/1990 is answered in favour of the defendants. The Second Appeals sans merit, is dismissed. [K.U.CHANDIWAL] JUDGE /mda/0609/sa298.90