Mathew Varghese v. Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **SA.No.944 OF 2000(B)** ## **AGAINST THE JUDGMENT & DECREE DATED 31-01-2000 IN AS 164/1998 OF ADDITIONAL SUB COURT, ALAPPUZHA** **AGAINST THE JUDGMENT & DECREE DATED 30-06-1995 IN OS 796/1993 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA** ## **APPELLANT/APPELLANT/PLAINTIFF:** **MATHEW VARGHESE, AGED 80 YEARS, S/O.MATHEW, RESIDING AT MOOLAYIL PUTHENPARAMPIL, THONNORILCHIRAYIL, KUNNUMMA MURI, KAVALAM VILLAGE, KUTTANAD TALUK.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 KRISHNAN, S/O.KURUMPAN, (DIED) CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506.** **2 PRAKASAN, S/O.KRISHNAN, AGED 54 YEARS, CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506.** **3 SATHEESAN, S/O.KRISHNAN, CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506.** **ADDL. R4 MEENAKSHI, W/O.KRISHNAN, AGED 75 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506.** **ADDL. R5 AISHA, D/O.KRISHNAN, AGED 56 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506.** **SA.No.944 OF 2000(B) 2** **ADDL.R6 VILASINI,D/O KRISHNAN AGED 53 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506. ADDL.R7 LALITHA, D/O KRISHNAN AGED 51 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506. ADDL.R8 ANUJA, D/O KRISHNAN AGED 47 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506. ADDL.R9 RAJANI, D/O KRISHNAN AGED 45 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506 ADDL.R10 SAJI, S/O KRISHNAN AGED 43 YEARS, RESIDING AT CHIRATHARAYIL, MANGALAM KAYAL, SOUTHERN CHIRA, KARINATTU HOUSE, KUNNUMMA EAST MURI, KUNNUMMA VILLAGE, KAVALAM P.O., KUTTANAD TALUK - 688 506 ( The legal representatives of deceased first respondent are impleaded as additional respondents 4 to 10 as per order dated 21.11.2019 in I.A.No.1/2019.) R2 & R1 BY ADV. SRI.GEORGE MATHEW R2 & R1 BY ADV. SRI.K.S.HARIHARAPUTHRAN R4-10 BY ADV. SRI.P.SREEKUMAR R4-10 BY ADV. SHRI.S.GANESH R4-10 BY ADV. SRI.V.K.RAJANANDAN R4-10 BY ADV. SRI.P.S.SIDHAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA.No.944 OF 2000(B) 3** **CR** ## **JUDGMENT** When a suit for specific performance resulted in dismissal on the ground of default of the plaintiff, whether he can seek protection under the umbrella of Section 53 A of the Transfer of Property Act, to retain possession of property obtained in part performance of the contract for sale (2) when possession of property is protected under Section 53 A of the Transfer of Property Act, what would be the status of title to the property and whether it will go along with the possession under Section 53 A of the Act, if not, what would be the right,interest left out to the real owner of the property,the title holder (3) when protection under Section 53 A of the Transfer of Property Act is exercised, whether it would culminate in a transfer of ownership over the property in favour of the possessor and if not, whether the owner can exercise right of ownership over the property (4) whether the property ## **SA.No.944 OF 2000(B) 4** would stand as not capable of alienation or transfer unless there is completion of sale as mandated under Section 54 of the Transfer of Property Act and (5) whether Section 53 A of the Transfer of Property Act is incomplete in its nature and would disturb the provisions governing transfer of interest over immoveable property, are the questions came up for consideration. 2. A suit for specific performance of contract and permanent prohibitory injunction against dispossession was dismissed by both the courts below. The grievance of the plaintiff is that he is in possession of plaint schedule property in part performance of contract for sale, but no decree of permanent prohibitory injunction against dispossession was granted and that the benefit conferred under Section 53 A of the Transfer of Property Act was not properly considered by the courts below. 3. The agreement dated 11.9.1976 is for sale of ## **SA.No.944 OF 2000(B) 5** 10 cents of property for a total consideration of Rs.2,250/-. An amount of Rs.2,000/- was paid in advance. The period of agreement was 5 months commencing from the date of purchase of another 10 cents of property by the defendant. 4. Admittedly,the benefit under Section 53 A of the Transfer of Property Act was not considered by both the courts below presumably on the reason that the relief of injunction was raised only as an ancillary relief to the main relief of specific performance. But separate court fee is seen paid for the relief of permanent prohibitory injunction. 5. Section 53 A of the Transfer of Property Act is extracted below for reference: ## **53A. Part performance -** Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any ## **SA.No.944 OF 2000(B) 6** part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” ( emphasis supplied) 6. One of the crucial ingredients which constitute application of Section 53 A of the Transfer of Property Act is that the plaintiff had performed his part of contract or ready and willing to perform his **SA.No.944 OF 2000(B) 7** part of contract. When a contract for sale of immoveable property admits certain things to be performed by the plaintiff, the proposed purchaser and the suit for specific performance ended in dismissal due to non-performance of that part of contract or bar of limitation, it would show the failure on the part of the plaintiff to perform his part of contract. Necessarily, one of the crucial ingredients - the readiness and willingness to perform his part of contract as mandated under Section 53 A of the Transfer of Property Act would stand not satisfied. But, the legal position might be different when the plaintiff had performed his part of contract and come up with a suit for specific performance, which has resulted in dismissal due to some other reason. In the latter case, it may be possible for the plaintiff to protect possession under Section 53 A of Transfer of Property Act irrespective of dismissal of the suit for specific performance, provided that he should establish the ## **SA.No.944 OF 2000(B) 8** ingredients which would constitute Section 53 A of the Transfer of Property Act. But in the former case, when the contract admits something to be performed by the plaintiff as his part of contract and come up with a suit for specific performance which has resulted in dismissal on the ground of bar of limitation, he will not get the protection available under Section 53 A of the Transfer of Property Act. 7. Then comes the question, when possession of property is protected under Section 53 A of the Transfer of Property Act, what would be the status of title and ownership to the property and whether it will go and stand transferred to the beneficiary under Section 53 A of the Act. The very basis of the section and its nature is to use the same by way of defence. Section 53 A of Transfer of Property Act does not say anything with respect to the title of property. The non-obstante clause incorporated in the 4[th] paragraph of Section 53 A of the Transfer of ## **SA.No.944 OF 2000(B) 9** Property Act debars the original owner/the transferor or any person claiming under him from enforcing any right in respect of such property which was given or continued in possession in part performance. Nothing is mentioned in Section 53 A of the Act regarding the title and ownership over the property and whether it would go along with the possession in part performance of the contract. The bar incorporated under Section 53 A of the Act is that the transferor/owner or any person claiming under him shall be debarred from enforcing any right over the property given in part performance, but that does not mean that the title to the property would stand transferred to the person (transferee) who possessed the property in furtherance of part performance of the contract for sale. On the other hand, the bar and the restriction imposed is complete and absolute in enforcing any right over the said property either by the owner ( transferor) or by persons claiming under him except the one specifically ## **SA.No.944 OF 2000(B) 10** provided in the agreement and the protection given under the proviso. In short, the possessor under Section 53 A of the Act will not get any title or ownership over the property and by virtue of 4[th] paragraph of the said section, the title and ownership of the owner ( transferor) will stand inoperative except for the purpose of the proviso attached to the section. Law does not promote any registered holding to go without any title holder. There should be a registered owner for each and every property. Otherwise, it should be a property belonged to the Government or public at large. Virtually, it would create a legal fiction that the original owner would remain only for name sake without having any right of owner to be exercised over the said property and the person who is in possession of the property will not get title or ownership over the property though he can possess, hold and enjoy the same by virtue of the nonobstante clause in 4[th] paragraph of Section 53 A of the **SA.No.944 OF 2000(B) 11** Act. The only exception is incorporated under the proviso protecting the interest of a bonafide purchaser without notice. Since it is a permissive possession, there is no scope for perfection of title by adverse possession and limitation in future. This would create some sort of uncertainty regarding the title over the property. The section itself is unique in its character, as the only provision dealing with part performance and its legal consequences, but totally silent about the ownership and the title over the property. There is a very big lacuna to be filled regarding the title over the property when the matter falls under the purview of Section 53 A of the Act, for which there is no other provision anywhere in the Transfer of Property Act or in any other enactment for the time being in force. It would make the section incomplete leaving the title of immoveable property to an uncertainty. The section is unique in its nature being the only provision dealing with the area of part ## **SA.No.944 OF 2000(B) 12** performance and hence demands the quality of a self sufficient provision, which is unfortunately lacking. 8. Another question would also arise at this juncture as to whether it is permissible to alienate the property or transfer the title and ownership over the property by its owner when possession was diverted under part performance of contract for sale. Section 53 A of the Act takes in the person claiming under the transferor/the owner and as such the non-obstante clause in 4[th] paragraph of Section 53 A of the Act would operate as against the transferee or the person claiming under him and they are debarred from enforcing any right over the property except by virtue of the proviso annexed to its 4[th] paragraph, protecting the interest of a bonafide purchaser for consideration without notice. A bonafide purchaser for consideration without notice alone is protected by virtue of the proviso, out of the persons against whom the bar under 4[th] paragraph of Section 53 A would operate. Virtually, ## **SA.No.944 OF 2000(B) 13** any subsequent transfer made by the original owner or devolution on the death of original owner would stand inoperative and all deeds, exercise of right of ownership would stand debarred except to the protection given to a bonafide purchaser without notice. On the other hand, the possessor in part performance of the property will not get any right of alienation or title or ownership over the property. The resultant effect would be that the property would remain outside the purview of provisions dealing with transfer of title and ownership either by way of sale, mortgage, gift or settlement ( Sections 54, 59 and 122 of Transfer of Property Act) and the provision governing devolution of right by succession, except between the possessor and the owner of the property excluding a bonafide purchaser without notice protected under the proviso. 9. Before the insertion of Section 53 A in the Transfer of Property Act, 1882, there were different views regarding the application of the English doctrine ## **SA.No.944 OF 2000(B) 14** of part performance in India. The Privy Council in **Mahomed Musa & Ors. v. Aghore Kumar Ganguli & Ors.** **[ AIR 1914 PC 27 (30)]** had applied the English doctrine of part performance in India. It is thereafter in the year 1929, Section 53 A was incorporated in the Transfer of Property Act, 1882 by amendment. The English doctrine of part performance was not adopted as such in India, but applied with certain modifications, by which the cardinal principle which governs the English doctrine of part performance - the creation of title in favour of transferee, was omitted. As per English doctrine of part performance, it creates a title to the property to the person (transferee), who is in possession of the property in part performance. But Section 53 A does not create any title to the property in favour of the said person. On the other hand, a subsequent transfer by the title holder/owner in favour of a bonafide purchaser with consideration and without notice was protected by virtue of the **SA.No.944 OF 2000(B) 15** proviso annexed to Section 53 A of the Act. It is a clear deviation from the English doctrine of part performance. The English doctrine of part performance and its essence is resting on the creation of title in favour of the person who is in possession of property under the doctrine. But in India, a protection is seen given to a bonafide purchaser from the owner/title holder. Except in the case of a bonafide purchaser and the protection given under the proviso, the owner/the title holder and the person claiming under them are debarred from exercising any right over the property which is in possession of transferee under part performance and there is no provision for getting any title over the property by the transferee in possession of the property. In short, Section 53 A is totally silent about the title over the property when the property put under the purview of that section. The necessary corollary, as discussed earlier, is that the property would remain not amenable for other provisions ## **SA.No.944 OF 2000(B) 16** in the Transfer of Property Act, such as sale, mortgage, gift or settlement (Sections 54, 59 and 122 of Transfer of Property Act) either in the hands of its title holder/owner or any person claiming under him or in the hands of the possessor (transferee) in part performance of the contract, except a bonafide purchaser protected under the proviso. The failure to address the said vital aspect makes the provision - the Section 53 A of the Transfer of Property Act, 1882, still born and hence inoperative. It is so unfortunate that the legal fatigue suffered by the section was not addressed, even at the time of 2001 amendment. **==> picture [432 x 13] intentionally omitted <==** consideration alone was paid at the time of alleged contract. The suit for specific performance was filed in a belated stage after the expiry of period of limitation. It would show that there is failure on the part of plaintiff to perform his part of contract within the period of limitation. The willingness to **SA.No.944 OF 2000(B) 17** perform his part of contract as incorporated in the third paragraph of Section 53 A of the Act stands for all actions which the plaintiff has to take by virtue of the contract for sale inclusive of payment of balance sale consideration. To fall under the umbrella of Section 53 A of the Transfer of Property Act, the plaintiff must show not only his readiness and willingness to pay the balance sale consideration, but also the readiness and willingness to perform his part of contract which includes enforcement of contract for getting the sale deed executed in his favour by resorting to legal proceedings, if there is any such clause incorporated in the contract for sale. A mere tender of balance amount due out of the sale consideration agreed or willingness made thereof either by notice or otherwise will not itself discharge the liability of the plaintiff to satisfy the ingredient which would constitute the third paragraph of Section 53 A of the Transfer of Property Act, when there is a ## **SA.No.944 OF 2000(B) 18** provision in the contract enabling the plaintiff to get the sale deed executed through court, failure to meet the said requirement within the period of limitation would visit with the consequences by bringing the plaintiff outside the purview of its third paragraph. 11. In the instant case, even no notice of demand was issued by the plaintiff within the period of limitation either expressing his willingness to perform his part of contract or demanding performance of the contract by the defendant and no suit was instituted within the period of limitation. The relief of specific performance was refused by both the courts below on the ground of bar of limitation. As such, the present suit would fall outside the purview of Section 53 A of the Transfer of Property. Further, the question of part performance was neither raised in the trial court nor in the first appellate court by the plaintiff. As discussed earlier, the very basis of the doctrine of part performance not reflected in Section 53 A of the ## **SA.No.944 OF 2000(B) 19** Transfer of Property Act. On the other hand, it creates an uncertainty regarding title to the property. Hence, in both the counts the plaintiffs failed to establish their entitlement by way of an injunction to protect their possession under Section 53 A of the Transfer of Property Act. 12. No other substantial question of law involved in the appeal so as to have an interference with the decree and judgment of both the courts below. The appeal fails, dismissed. No costs. Sd/- **P.SOMARAJAN JUDGE** sv **SA.No.944 OF 2000(B) 20**