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

4. As the rival assertions are integrated in the pleadings, a brief reference thereto, is indispensable. The appellant/plaintiff instituted O.S. No.172 of 1987 against the predecessor-in-interest of the present respondents i.e. Venugopal (deceased) praying for a declaration of her title in the suit property and also for recovery of possession thereof. She claimed to have purchased the same vide registered sale deed dated 26.6.1982 for the consideration price of Rs. 35,000/- from the sons of Ramnathan Chettiar, the original owner, whereupon she was registered in the municipal records as the title-holder thereof. She averred that at the time of sale, the original defendant Venugopal was in possession of the property as a tenant of her vendors on payment rent of L 100 per month. As the defendant-Venugopal did neither accept her as his landlord nor agreed to pay the enhanced rent of Rs. 150/-, as demanded, after causing a notice to be served on him, the appellant/plaintiff filed an application before the Rent Controller, Cuddalore being R.C. O.P. No. 29 of 1986 for his eviction from the suit property.5. In the said proceeding, the original defendant-Venugopal denied the title of appellant/plaintiff in the suit property and claimed to be in occupation thereof on the strength of an agreement of sale executed between him and the original owner Ramnathan Chettair. At this, the appellant/plaintiff instituted a suit claiming the reliefs, as aforementioned, by pleading that neither she was aware of any such agreement at the time of her purchase nor of any part performance thereof as claimed and that even if any such agreement did exist, the respondent/defendant was not entitled to remain in possession of the suit property without enforcing the same, as contemplated in law. She contended that she was a bona fide purchaser for value without notice of such agreement and maintained that the defendant was not entitled to avail the protection under Section 53A of the Transfer of Property Act, 1882 (for short, hereinafter to be referred to as "T.P. Act").6. The original defendant-Venugopal in his written statement, while reiterating that Ramnathan Chettiar was the owner of the suit property, stoutly denied the transaction of sale by his sons in favour of the plaintiff vide registered sale deed dated 26.6.1982. He also asserted that the vendors of the appellant/plaintiff had no subsisting title in the suit property to convey to her. He denied that his possession of the suit property at the time of purported sale in favour of appellant/plaintiff was that of a tenant under her vendors and reiterated that pursuant to an agreement of sale dated 20.5.1975 with the original owner Ramnathan Chettiar, he had by installments, in all paid Rs. 26,000/- by 12.4.1976 which formed a major part of the consideration price. He stated further that at the time of execution of the agreement of sale dated 20.5.1975, one Purushothaman was in occupation of the suit property as a tenant under the original owner, who following the compromise between him (tenant) and the landlord vacated the suit premises, whereafter possession thereof was delivered by the original owner to him on 1.7.1976 and that since then, he paid as well the property tax therefor. However, though agreed upon and inspite of repeated insistences, the original owner did not execute the sale deed and after his death, his sons also avoided to do so. He claimed protection of his possession in terms of Section 53A of T.P. Act and also alleged that the plaintiff was not a bona fide purchaser without notice of the agreement for sale between him and the original owner. He pleaded as well that his right, secured under Section 53A of the T.P. Act, did not stand effaced by any period of limitation, as time was not the essence of contract for enforcing the specific performance thereof. The parties though did exchange additional pleadings, it is inessential to dilate thereon.7. The Trial Court, on the basis of the pleadings, framed issues and by its verdict dated 28.4.1989 dismissed the suit holding inter alia that the possession of the original defendant of the suit property was protected under Section 53A of the TP Act, as the ingredients thereof stood complied with by him and that the appellant/plaintiff was not entitled to the relief of declaration or possession, as sought for.8. Being aggrieved, the appellant/plaintiff preferred appeal being A.S. No.124 of 1990 before the High Court of Judicature at Madras and as hereinbefore mentioned, the same also met the same fate. Her Letters Patent Appeal being L.P.A. SR No.16958 of 2007 was dismissed as not maintainable being in the teeth of Section 100-A of C.P.C..

Reasoning: 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.