Case: Vasanthi Vs. Venugopal (D) Thr. Lrs

others sought to rely on the testimony of DW1 to the effect that he had always been ready and willing to perform the contract and also in the reply to the notice sent by the vendors of the appellant/plaintiff conveying the cancellation of the agreement, he reiterated his readiness and willingness to get the sale deed, on the basis of the agreement for sale, executed.24. The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the appellant/plaintiff and the original defendant and that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the appellant/plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.25. The fact that at the first instance, the appellant/plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.26. This Court in Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi by Lrs. and others 2002(1) R.C.R.(Rent) 302 : (2002) 3 SCC 676 , while tracing the incorporation of Section 53A in the TP Act, vide Act of 1929, acting on the recommendations of the Special Committee on the issue, had ruled that mere expiration of the period of limitation for bringing a suit for specific performance would not debar a person in possession of an immovable property by way of part performance from setting up a plea, as contemplated therein in defence to protect his possession of the property involved. It was however underlined that if the conditions precedent, as enumerated, in Section 53A of the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part performance of a contract for transfer thereof for consideration to assert the shield of Section 53A of T.P. Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential pre-requisites therefor would have to be obligatorily complied with.27. In A. Lewis and another v. M.T. Ramamurthy and others 2008(1) R.C.R.(Civil) 77 : (2007) 14 SCC 87 , it was propounded that the right to claim protection under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect.28. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, 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 unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.31. Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.32. On an overall view of the matter, we are of the opinion that the conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. As the contextual facts in these decisions are inessential, having regard to the hyaline legal postulations as above, elaboration thereof is avoided. The dismissal of the LPA of the appellant/plaintiff, in the face of the above judicially adumbrated explication of Section 100-A of CPC by this Court, cannot thus be faulted with.17. Reverting to the availability of the protection of Section 53A of TP Act to the original defendant and on his death, to the present respondents, to reiterate, the evidence on record does proclaim that the agreement for sale dated 20.5.1975 had indeed been executed between the predecessors-in-interest of the vendors of the appellant/plaintiff and the respondents herein, pursuant whereto, an amount of Rs. 26,000/- in all had been paid by the proposed purchaser and the possession of the suit property had been handed over to him in consideration thereof. As a matter of fact, at the time of execution of said agreement, the suit property was in occupation of a tenant of the proposed seller i.e. the predecessor-in-interest of the vendors of the appellant/plaintiff and that following a compromise, the tenant delivered possession of the suit property to the predecessor-in-interest of the present respondents and since thereafter, they are in occupation thereof. The evidence on record, however, does not in very clear terms establish that the appellant/plaintiff had conscious notice or knowledge of this agreement for sale at the time of her purchase. Admittedly as well, neither the predecessor-in-interest of the respondents nor they had taken recourse to law for specific performance of the agreement. This assumes importance in view of the averment made in the written statement that even prior to the demise of the predecessor-in-interest of the vendors of the appellant/plaintiff, he did not comply with the requests of the original defendant to get the sale deed executed and his legal heirs, after his demise, also adopted the same non-cooperative stance.In terms of this provision, if the above pre-conditions 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.The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the appellant/plaintiff and the original defendant and that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the appellant/plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.25. The fact that at the first instance, the appellant/plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, 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 unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.31. Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.32. On an overall view of the matter, we are of the opinion that the conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.