RANCHHODDAS CHHAGANLAL

DEVAJI SUPADU DORIK AND ORS.

lanuary 17, 1977

[A. N. RAY, C.J., M. R BEG AND JASWANT SINGH, JJ.]

Transfer of Property Act, 1882_:Sec. 53A-Doctrine of part performance- Whether transferee should be ready and willing to perform-Indian Penal Code-Finding without issue-Not sustainable-Cross objection-If judgment can be challenged by respondent without filing cross objection.

Article 133 of Constitution-Practice and procedure-Objection about validity of grant of certificate-To be raised at what stage .

. ,1 The appellant agreed to sell certain land to the respondents by an agreement for sale entered into between t):ie parties for Rs. 17,000/-. The respondent was put in possession pursuant to the said agreement after Rs. 12,000/- were paid.

He failed to pay the balance of Rs. 5,000/- in spite of demand by the appellant The appellant filed a suit for possession of the land and, in the alternative, for a decree for Rs. 5,000/- with interest.

The respondent contended that the agreed price was Rs. 12,000/- which wa~ already paid and that, therefore, Rs. 5,000 /- were not payable. The resoondent contended that if the court came to the conclusion that Rs. 17,000/- was the agreed price then the Court should take into account certain amount which was already paid by the respondent.

The Trial Court _decreed the appellant's suit for possession and came to th1 conclusion that the agreed price was Rs. 17,000/-. The High Court in an E appeal confirmed the finding of the Trial Court that the agreed price wai Rs. 17,000/-. The High Court, however, granted the decree of Rs. 5,000 /- with interest but refused the prayer for possession.

Allowing the appeal,

HELD : ( 1) The respondent was. never ready and willing to perform the aireement as alleged by the appellant: One of the ingredients of part performance under s. 53A of the Transfer of Property Act is tliat the transferee has F taken possession in part performance of the contract. In the present case, there was ncr performance in part by the respondent of the contract between the parties.

The doctrine of part performance is a defence. It i• generally not a sword but a shield. The act of part performance must be such a• not only to be referable to acontract such as that alleged but to be referable to no other title Section 53A requires a positive act of readiness and willingness on the part of the transferee to perform the agreement.

[624 A-E]

(2) The High Court wrongly found that there was an extension of the per- G formance of the contract by one year. There was no issue rai•ed on that point. It is well settled that there should be specific issues on question• of fact.

The contention that the appellant could not put an end to the contract if ther• was failure on the part of the respondent to perform the agreement is fallacious.

[ 624 F-G]

(3) It was not open to the resoondent to challenge the findin~ of the Hfh Court that the agreement was for Rs. 17.000/-. The respondent can certainly H

unnort the iudgment on anv ground which is onen to him under the imn1rnned

judgment. The respondent did not file any cross-obiection on the ftndin~ in the

judment of High Court about the nrice of the agreement. It 11, therefore, not open to him to challe11ge the finding.

[623 G-H]

A ( 4) The contention of the respondent that certificate was not competent because the value all along had not been over Rs. 20,000/- cannot be allowed t!' be taken at the late stage. If the respondent had taken this point at the t1e when the. matter was heard in the High Court the appelliint could have sausfied the High Court. Such a plea was not raised even in the statement of case. [623 D-Fl

Stare of Assain and Anr. etc. v. Basanta Kumar Dass etc. etc. (1973] (3}> S C.R. 158, followed.

' CIVIL APPELLATE JURISDICTION: Civil Appeal No. 945 of 1972.

(From the Judgment and Decree dated 15-10-1969 of the Bombay High Court in First Appeal No. 420163). ·

V. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, for the appellant. _ ·

Sharad Manohar and Suresh Sethi, for the respondents.

The Judgment of the Court was delivered by

RAY, C.J.

This appeal is by certificate from the judgment dated 15·0ctober 1969 of the Bombay High Court in First Appeal No. 420 of 1963.

The trial court by its judgment dated 24 June 1963 decreed the suit in favour of the appellant.

The High Court reversed the judgment of the trial court.

The pre-eminent question in this appeal is. whether the respondent has been ready and willing to perform the agreement entere<l into with the appellant.

The case of the appellant is that there was an oral agreement for sale of property consisting of agricultural land admeasuring 23 acres approximately for a sum of Rs. 170001-.

The respondent from time to time paid Rs. 120001to the appellant.

The respondent was also in possession of the property.

The appellant called upon the respondent to pay the full amount of purchase price.

The respondent failed to do so.

The nlaintiff, on respondent's refusal to perform the agreement, filed the suit.

In the suit the reliefs claimed were possession of the propertv and in the alternative a decree for Rs. 10,5001oomisting of the orinclnal sum of Rs. 50001as the b; ilanc<'" amount of purchase price and interest thereon amounting to Rs. 55001-.

The. princioa1 defence was that the agreement for sale was only for Rs. 12000/-, and that the respondent paid the amount in full.

The respondent characterised /the suit as 'mean Pffort to recover illegally the additional prjce of the os1ensible Rs. 5000/-_'.

The respondent alsoalleged that if the f'n11rt drdded that the nnce of the nroperty was agreed to be Rs. 170001-, then the respondent wi:iuld a~~ the Court to take into account the sum of Rs. 12000/- paid bv h1m and

also the sum of Rs. 15001paid by him from time to time therea.fter.

..

At the trial one of the issue$ was whether the appellant proved A -that llhe respondent entered into a 'Sauda' on 24 January 1952 with the appellant's father to purchase for Rs. 17000/- the properties men tioned in Schedule 'A' to the plaint.

The other issues were whether the defendant-respondent proved that the properties were agreed to be purchased for Rs. 120001-.

A corolilary to the issue raised in the written statement was whether defendant proved llhe circumstances in which it was made to appear that the 'Sauda' was for Rs. 170001-.

B In short the defendant alleged fraud against . the appellant.

The <:barge is that the appellant changed the figure to Rs. 17000/-.

The trial court held in favour of the appellant and rejected the defence .of .the respondent. -

Counsel for the respondent contended that the suit of the appellant was not maintainable.

It was said that the appellant was not compNent to maintain the suit by reason of provisions contained in sections .39 and 55 of the Indian Contract Act.

The gist of the contention IS that the appellant could not put an end to the contract if there was failure on part of the respondent to perform the agreement.

The sub- .mission is fallacious.

The case of the appellant has always been that

the respondent refused to perform the agreement.

The appellant all .along asserted that the agreement was that the property was agreed .to be sor.d only for a sum of Rs. 170001-.

The respondent refused to perform the agreement.

The suit therefore was competent and valid. ·

Another contention was raised by the respondent that the certificate was not competent because the value all along has not been over Rs. 20000/-.

This Court has held in the decision in State of Assam and A 11r. Etc. v. Basanta Kumar Dass Etc. Etc. reported in 1973

(3) S.C.R. 158 at page 168 that the objection to valuation cannot be allowed to be t?keill at this late stage.

But the graver objection to the respondent not being allowed to challenge the certificate is that if the respondent had taken this point at the time when the matter was heard in the High Court the appellant could have satisfied the High Court or the appeilant would have failed.

This Court in any event, if a c.ertificate h:i, d been granted on a challenge being made, would have been in posse1Ssion of facts anti the judgment of the High Court on that question.

That is the main reason why the respondent should not be allowed to challenge the certificate at this stage.

The respondent has also not raised such a plea in the statement of case.

" D

The remaining question is one of substance and is the real issue.

It is whether the agreement has been performed.

Counsel for the G respondent submitted that it was open to the respondent to contend that the finding of the High Court that t1he agreement was for Rs. 17000/- should not be acc.epted.

Counsel for the appellant rightly challenged the competency_ of such an objection.

The respondent can certainly support the judgment o nany ground which is . open to him under impugned judgment.

The judgment is that the agreement was between 11he parties, and that the sale price was Rs.

H 17000/-. The respondent did not file any cross objection on the finding in judgment on that point.

It is therefore not open to the respondent to challenge that finding.

The principal hurdle in the way of the resporn; lent .is . that the respondent has never been ready and willing to perform the agreemen~, as .alleged by the appellant.

The respondent. alleged that the cons1derat10n for purchase was Rs. 12000/-. The respondent has never been ready and willing to perform the agreement alleged by the appellant.

The respondent relied on the doctrine of part-performance.

One of the limbs of part performance is that the transferee has in the part performance of the contract taken possession of the property.

The most important consideration here is the contract. The true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged.

The doctrine of part performance is a defence. It is a sword and nqt a shield. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract.

Tho appellant is right in the contention that there was never any performance in part by the respondent of the contract between the parties.

_ In Fry on. Specific Performance, Sixth Edition, at page 276 it is 1tated that "the acts of part performance must be such as not only to be referable to a contract such as that alleged, but to be referable to no other title; and that the acts relied upon as part performanctJ must be unequivocally and in their own nature referable to some such agreement as that alle&ed". ·

The High Court found that the respondent performed in part th<J agreement alleged by the appellant.

It has been said by the appellant that the High Court should have appreciated that Section

53-A requires a positive act of readiness and willingness on part of the transferee to perform the agreement.

In the present case the respondent who was the transferee under the agreement did not perform his part of the contract from 1952 till 1963 that" is after the judgment

was pr.:>nounced by the trial court.

The High Court wrongly found that tJhere was an extension of the performance of contract by ono year.

There was no issue raised on that point.

It is well settl<:d that there should be specific issues on questions of" fact.

Parties did not go to trial on that question and there the High Court was in error in holding that there was an extension of time for performance of the contract.

It is therefore erroneous to say as the High Court did that

- the respondent can take advantage of the period between 1953-54.

Some attempt was :niade by counsel for the respondent that thrCJ was an admission bv the appellant's father that the purchase pnce was Rs. 12000/-. This contention cannot be accepted in vi"Y-7 of the finding of the High Court that the puchase price was Rs. 17000 /-.

One of the questions in the High Court was ere should be o award of interest on the sum of Rs. 5000 /- which had been paid.

The High Court rightly allowed interest at the rate of 6 per cent yer

annum.

We are told the amount of Rs. 5000/- has been deposited in the High Court.

For the foregoing reasons we are satisfied that the decree passed A by the trial court was correct and the High Court was in error in reversing the decree.

The High Court should not have reversed the . decree particularly when it was found that the respondent failed first in regard to the agreement alleged by the defendant_ and second in allowing the decree in favour of the respondent on the plea of par~ performance of a contract which was never pleaded by the defern; lant/

respondent and was not a contract upon which there could be any B performance in part.

The appeal is therefore accepted.

The Judgment of the High Court is set aside.

The judgment of the trial court is restored. Parties will pay and bear their own costs in this Court and the High Court.

The respondent will be at liberty to withdraw Rs. 5000/- depoited in the High Court.

P.H.P.

Appeal allowed.