Case: SHIVAJI YALLAPPA PATIL Vs. RANAJEET APPASAHEB PATIL

not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 11. The possibility of injury to the interest of third party does not, by itself, disentitle the plaintiff from specific performance but it depends upon the facts and circumstances of each case which will be considered by the court in the exercise of its discretion. The court may properly exercise discretion to decree specific performance, in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 12. In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act). Section 53 A which was added in 1929 and imports into India a modified form of the equity of part performance as developed in England in Elizabeth Maddison vs. John Alderson (1883) 8 App Cases 467. The following postulates are sine qua non for basing a claim on Section 53 A of the TP act, 1882: There must be a contract to transfer for consideration any immovable property. The contract must be in writing signed by the transferor, or by someone on his behalf. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. The transferee must be in part performance of the contract take possession of the property, or of any part thereof. The transferee must have done some act in furtherance of the contract. The transferee must have performed or be willing to perform his part of the contract.13. It is well settled law that Section 53A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract. 14. In the present case, during the course of hearing, it is brought to our knowledge that both the trial court as well as the lower appellate court had proceeded to arrive at the conclusion that there was no delivery of possession in favour of the Respondent Nos. 1 and 2 herein as per the agreement to sell dated 28.05.1981 on the ground that there was no mention of delivery of possession. It is submitted that the said courts below had failed to appreciate the said judgment and decree dated 24.09.1987 of the learned Additional Munsiff, Hukkeri in O.S. No. 129 of 1984 in proper prospective which clearly shows that the said court having found the possession of Respondent Nos. 1 and 2 herein in respect of the said entire property including suit property had granted injunction in the matter and restrained the third party to interfere with the possession of Respondent Nos. 1 and 2 herein. Henceforth, Respondent Nos. 1 and 2 have been in possession of suit land against all other persons and can claim right of possession even against the subsequent purchaser. 15. In the present case, the whole case revolves around the one question whether Respondent Nos. 1 and 2 got the possession of entire suit land. It is undisputed fact that deceased husband of Respondent No.3, along with other owners in Survey No. 77, entered into an agreement with the Respondent Nos. 1 and 2 but later on Respondent No. 3 refused to execute the said agreement. In pursuance of the same, it is alleged that the possession of the entire land got transferred to Respondent Nos. 1 and 2. However, Respondent No. 3 herein denied this fact and alleged that possession of her share never transferred to the original plaintiffs. After perusal of the factual matrix of the entire case and peculiar facts, we are of the considered view that on the basis of the finding in OS No. 129 of 1984, it is well established that the present Respondent Nos. 1 and 2 were put into the possession of entire land. The decree passes by the Munsiff in the year 1987 regarding possession in an independent suit filed in the year 1984 is indicative of the fact that the plaintiffs/respondent Nos. 1 and 2 were in possession. Conclusion:- 16. In view of the foregoing discussion, we do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today.

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

Explanation:
0[ds]In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act)In view of the foregoing discussion, we do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today.