Nanjegowda & Anr vs Gangamma & Ors

No.3 Jayamma are before us by special leave against

the judgment and decree of affirmance.

2. Plaintiff No.1 Gangamma is the wife of late

Honnanna. Plaintiff no.2 Vanajakshi is the daughter

of plaintiff no.1, whereas plaintiff no.3 Nagesha and

defendant no.2 Manjunatha are her sons. Plaintiffs

filed the suit for declaration and possession over an

area measuring East to West 50 feet and North to

South 15 feet with a house built thereon measuring

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15x12 feet, appertaining to survey No. 70/19,

situated at Kamakshipalya,Saneguruvanahalli,

Yeshwanthapur Hobli, Bangalore North Taluk in the

State of Karnataka.

3. According to the plaintiffs, the property

originally belonged to one Ramakrishna. He had

purchased the same under a registered sale deed dated

13th December, 1978. The aforesaid Ramakrishna sold

the said property to Honnanna by a registered sale

deed dated 5th June, 1980. According to the

plaintiffs, Honnanna executed the power of attorney

in respect of the suit property in favour of

defendant nos.1 and 3 which came to an end on his

death on 13th July, 1986. Defendant nos.1 and 3

hereinafter referred to as the defendants (appellants

herein) contested the suit. They have not denied

that Honnanna had purchased the property on 5th June,

1980 from Ramakrishna. However, they claim title

over the property on the basis of an agreement to

sale dated 27th November, 1982. It is further case of

the defendants that there being a ban on registry of

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the property, an irrevocable power of attorney was

executed by Honnanna on 14th July, 1985 as also an

affidavit of the same date.

4. On the basis of the pleadings of the party, the

Trial Court framed various issues including the issue

as to whether defendant nos. 1 and 3 had acquired

title to the property after the death of Honnanna.

The Trial Court on appraisal of evidence, came to the

conclusion that defendants had failed to prove that

Honnanna executed an agreement to sale in favour of

defendant no.3 Jayamma. The Trial Court further held

that plea of the defendants that Honnanna delivered

possession of the scheduled property in the light of

the agreement dated 27th November, 1982 on the date of

agreement is false. In coming to the aforesaid

conclusion, the Trial Court referred to the contents

of the general power of attorney which indicated that

Honnanna had given the general power of attorney in

favour of Jayamma to manage the property. While

doing so, the Trial Court observed as follows:

4 "48..........what can be made from these

recitals is that Honnanna was in

possession of the schedule property upto

the date of execution of said general

power of attorney i.e. 22.7.1985. That

being so, the contention of defendants 1

and 3 that Honnanna delivered portion of

the schedule property referred to in the

agreement of sale dated 27.11.1982 on the

alleged date of agreement of sale is

found to be false....."

5. In the light of the aforesaid findings, the Trial

Court decreed the suit and on appeal by the

defendants, the High Court had dismissed the appeal

and affirmed the judgment and decree of the Trial

Court.

6. Mr. Girish Ananthamurthy, learned Counsel

appearing on behalf of the appellants submits that

Honnanna executed an agreement to sale in favour of

defendant no.3 Jayamma and she was put in possession.

According to him, after the execution of the

agreement to sale, the ban on the registration of the

documents was not lifted and accordingly Honnanna

executed an irrevocable power of attorney and sworn

affidavit,acknowledging possession on 14th July, 1985.

He draws our attention to the agreement to sale (Ext.

D-1) dated 27th November, 1982 and the affidavit dated

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14th July, 1985 (Ext. D-3) and contends that Honnanna

having delivered the possession of the property,

notwithstanding the fact that sale deed has not been

executed and registered, defendants shall have right

over the property. In this connection, our attention

has been drawn to Section 53A of the Transfer of

Property Act, 1882 (hereinafter referred to as the

`Act'). On this ground alone, according to the

learned Counsel, the courts below ought to have

dismissed the suit.

7. Mr. S.N. Bhat, learned Counsel appearing on

behalf of the plaintiffs-respondents, however,

contends that the plea put forth by the defendants

that they were handed over the possession of the

property in part performance of the Contract is

unfounded on fact and hence Section 53A of the Act is

not remotely attracted. He points out that the

findings recorded by the Trial Court, as affirmed by

the High Court that possession was not delivered to

the defendants is on appraisal of evidence which does

not call for interference in this appeal.

6 8. We have bestowed our consideration to the rival

submissions. Section 53A of the Act which is relevant

for the purpose reads as follows:

"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 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 therefore 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."

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From a plain reading of the aforesaid provision,

it is evident that a party can take shelter behind

this provision only when the following conditions are

fulfilled. They are:

(i) The contract should have been in writing signed

by or on behalf of the transferor;

(ii)The transferee should have got possession of the

immoveable property covered by the contract;

(iii)The transferee should have done some act in

furtherance of the contract; and

(iv)The transferee has either performed his part of

the contract or is willing to perform his part of

the contract.

A party can take advantage of this provision only

when it satisfies all the conditions aforesaid. All

the postulates are sine qua non and a party cannot

derive benefit by fulfilling one or more conditions.

9. Bearing in mind the aforesaid principle, we, now,

proceed to consider as to whether defendants have

satisfied all the requirements. Had they got

possession of the immoveable property covered by the

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contract necessary for invocation of Section 53A of

the Act? Agreement to sale dated 27th November, 1982

recites that Honnanna had delivered the possession of

property to defendant no.3 Jayamma. According to the

defendants, there had been ban on registration of

documents, hence Honnanna executed an irrevocable

power of attorney on 14th July, 1985. The contents of

the general power of attorney show that the property

at that particular time was in possession of

Honnanna, the transferor. This would be evident from

the following recital in the power of attorney:

"The vacant site as mentioned in the

schedule below which is in my possession

acquired through the registered Sale Deed dated

05.05.1980 registered in the Office of the Sub-

Registrar, Bangalore North Taluk, in Book No. 1,

Volume 3236 page 210-230 No. 1363, I have hereby

given the power in favour of you to look after

and manage completely on my behalf as I am

unable to manage for inevitable reasons."

(underlining ours)

10. Had defendant no.3 Jayamma got possession of the

property in pursuance of the agreement to sale dated

27th November, 1982, there was no occasion for

Honnanna to recite in clear terms that he was in

possession of the property. In view of the

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aforesaid, we are of the opinion that the finding

recorded by the Trial Court as affirmed by the High

Court that defendants did not get possession of the

property after execution of the sale deed is on

correct appreciation of facts, which do not call for

interference in this appeal. In view of this

finding, in our opinion, the provision of Section 53A

of the Transfer of Property Act is not attracted and

defendants cannot take advantage of that.

11. In the result, we do not find any merit in this

appeal which is dismissed accordingly but without any

order as to the costs.

................................................J.

(MARKANDEY KATJU)

................................................J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI,

AUGUST 25, 2011.