Case Note & Summary
The dispute involved immovable property where the appellant had come into possession of suit lands pursuant to an agreement of sale dated 8 March 1956, paying part consideration of Rs 500 and obtaining possession. Subsequently, the respondent purchased the lands by a sale deed dated 23 March 1960. In the meantime, the appellant's suit for specific performance of the agreement was dismissed and that decision became final. The respondent then filed a suit for possession, which was decreed by the trial court. The first appellate court reversed that decree and dismissed the suit, but the High Court, in second appeal, set aside the appellate court's decision and restored the trial court's decree. The appellant challenged the High Court's decision before the Supreme Court by special leave. The primary question was whether the appellant was entitled to retain possession of the suit property. The appellant raised two defences: first, that having remained in possession since 8 March 1956, he had perfected title by adverse possession; second, that he was entitled to retain possession under Section 53-A of the Transfer of Property Act, 1882. The Supreme Court observed that the first plea of adverse possession was inconsistent with the second plea because the appellant had admitted lawful possession under the agreement. The court held that to claim adverse possession, the appellant had to disclaim his right under the agreement and prove independent hostile possession to the knowledge of the transferor or his successor, which he had not done. Therefore, adverse possession was not available. Regarding Section 53-A, the court explained that this provision operates only as a shield and not as a sword; it does not create any title or interest in the property. Since the appellant's suit for specific performance had been dismissed and had become final, his willingness to perform his part of the contract could not arise. Furthermore, to retain possession under Section 53-A, the transferee must plead and prove continuous readiness and willingness to perform his part of the contract. The court noted that the High Court had correctly pointed out that the appellant had not expressly pleaded readiness and willingness in the written statement. Drawing an analogy with Section 16(c) of the Specific Relief Act, 1963, the court emphasized that a plaintiff seeking specific performance must plead readiness and willingness, and the same requirement applies to a transferee invoking Section 53-A. The court invoked the equitable maxim that he who comes to equity must do equity. The appellant had admitted paying only Rs 500 while pleading that the consideration was Rs 1,000, and he did not pay the remaining amount before the land was sold to the respondent, nor did he deposit the amount or make an offer of payment. Consequently, the court concluded that the appellant had not discharged his part of the contract and was not entitled to retain possession. The Supreme Court dismissed the appeal, affirming the High Court's decision, but held that since the appellant had remained in possession under the agreement of sale, the respondent was not entitled to claim any damages from him. The appeal was dismissed without costs.
Headnote
A) Property Law - Adverse Possession - Adverse possession cannot be claimed by a person whose possession originated under an agreement of sale unless he disclaims the agreement and proves independent hostile possession nec vi nec clam nec precario - Transfer of Property Act, 1882, Section 53-A - The appellant came into possession under an agreement of sale dated 8 March 1956 and simultaneously relied on Section 53-A, thereby admitting lawful possession under the agreement; such a plea was inconsistent with adverse possession. The court held that the appellant did not disclaim his right under the agreement or prove assertion of independent hostile adverse possession to the knowledge of the transferor or his successor. Held that the plea of adverse possession was not available to the appellant (Pages 1-2). B) Transfer of Property - Part Performance - Section 53-A of the Transfer of Property Act, 1882 - Section 53-A confers only a shield and not a sword; agreement does not create title; after dismissal of the specific performance suit, the transferee cannot retain possession under the agreement - The appellant's suit for specific performance of the agreement of sale had been dismissed and had become final; therefore, his willingness to perform his part of the contract did not arise. The court reasoned that once the right under the agreement was lost, it would be inconsistent and incompatible to remain in possession under the same agreement; further, a transferee can avail of Section 53-A only as a defence and not as a basis for a claim. Held that the appellant was not entitled to retain possession under Section 53-A (Pages 2-3). C) Specific Relief - Readiness and Willingness - Section 16(c) of the Specific Relief Act, 1963 - The doctrine of readiness and willingness applies equally to a transferee invoking Section 53-A; equitable maxim 'he who comes to equity must do equity' requires pleading and proof of continuous willingness - The appellant did not specifically plead readiness and willingness in his written statement and admitted paying only Rs 500 though he pleaded the consideration was Rs 1,000; he did not pay the balance before the land was sold to the respondent, nor did he deposit the amount or offer payment. Held that the appellant did not discharge his part of the contract and could not retain possession; hence the appeal was dismissed without costs (Pages 2-3).
Issue of Consideration
Whether the appellant, who came into possession under an agreement of sale and later lost his suit for specific performance, was entitled to retain possession of the suit property either by adverse possession or under Section 53-A of the Transfer of Property Act, 1882
Final Decision
The Supreme Court dismissed the appeal without costs, affirming the High Court's decision and holding that the appellant was not entitled to retain possession of the suit property. The court further held that because the appellant had remained in possession under the agreement of sale, the respondent was not entitled to claim any damages from him.
Law Points
- Section 53-A of the Transfer of Property Act
- 1882 operates as a shield and not as a sword
- agreement of sale does not create title or interest in immovable property
- transferee invoking Section 53-A must plead and prove continuous readiness and willingness to perform his part of the contract
- adverse possession cannot be claimed when possession originated under an agreement of sale
- dismissal of specific performance suit extinguishes the right to retain possession under the agreement
- doctrine of readiness and willingness under Section 16(c) of the Specific Relief Act
- 1963 applies equally to a transferee invoking Section 53-A
- equitable maxim 'he who comes to equity must do equity' requires the transferee to establish performance or willingness to perform
