Case Note & Summary
The present second appeal was filed by the original plaintiff, Sakharam Laxman Mathane (since deceased, represented by his heirs), challenging the concurrent findings of the courts below dismissing his suit for declaration that an agreement dated 1st February 1966 was void and illegal, and for possession of the suit property. The appellant was the owner of land bearing survey No. 143/11, village Nade, Tal. Patan. On 1st February 1966, he entered into an agreement for sale in favour of the defendants (respondents). Based on this agreement, the defendants took possession of the property. Subsequently, the defendants issued a notice calling upon the plaintiff to execute the sale deed. When the plaintiff failed to do so, the defendants filed a civil suit for specific performance in 1979, which was dismissed for default on 16th October 1972. In 1973, the plaintiff filed the present suit for declaration and possession, contending that the agreement was void and illegal. The defendants resisted the suit by written statement, asserting their right to retain possession under the agreement. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The second appeal was admitted on 31st August 1989 on the substantial question of law: whether the defence of Section 53-A of the Transfer of Property Act, 1882 was available to the respondents in the facts and circumstances of the case. The High Court, after hearing the parties, held that the respondents were in possession under the agreement and had performed their part of the contract. The appellant failed to execute the sale deed despite notice. Therefore, the defence of Section 53-A was clearly available to the respondents. The concurrent findings of the courts below were upheld, and the second appeal was dismissed with no order as to costs.
Headnote
A) Transfer of Property Act - Section 53-A - Part Performance - Defence of part performance available to a person in possession under an agreement to sell - The court held that the respondents, being in possession based on an agreement to sell dated 1st February 1966, were entitled to the protection of Section 53-A of the Transfer of Property Act, 1882, as they had performed their part of the contract and the appellant failed to execute the sale deed. (Paras 1-3)
Issue of Consideration
Whether the defence of Section 53-A of the Transfer of Property Act, 1882 was available to the respondents in the facts and circumstances of the case.
Final Decision
The second appeal is dismissed. The concurrent findings of the courts below are upheld. No order as to costs.
Law Points
- Section 53-A Transfer of Property Act
- 1882
- part performance
- agreement to sell
- possession
- concurrent findings
- substantial question of law
Case Details
2005 LawText (BOM) (12) 69
Second Appeal No.325 of 1989
Mr. S.G. Karandikar for the appellants, Shri H.D. Gole for respondents
Sakharam Laxman Mathane (since deceased by his heirs and L/Rs: 1. Rangubai Sakharam Mathane, 2. Laxman Sakharam Mathane, 3. Tarubai Hanmant Bhosale, 4. Miratai Tukaram Dige, 5. Hiratai Kisan Jadhav, 6. Gangubai Kisan Borage, 7. Sakhubai Umaji Kale)
1. Laxman Bahiru Dige (deceased by his heirs and L/Rs: (a) Smt. Sonabai Laxman Dige since deceased through her L/Rs as 1(b), 1(c) and 1(d) (b) Parshuram Laxman Dige, (c) Smt. Sakhubai W/o Shankar Dige, (d) Smt. Yeshwada Pandurang Desai) (2) Shankar Laxman Dighe (deceased by his heirs: (2A) Sakhubai W/o Shankar Dige, (2B) Sonabai W/o Laxman Dige)
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Nature of Litigation
Second appeal against concurrent findings dismissing suit for declaration that agreement to sell was void and for possession of property.
Remedy Sought
Appellant (original plaintiff) sought declaration that agreement dated 1st February 1966 was void and illegal, and that defendant had no right to retain possession, and prayed for possession of suit property.
Filing Reason
Appellant challenged concurrent findings of courts below dismissing his suit.
Previous Decisions
Trial court dismissed the suit; first appellate court confirmed dismissal. Second appeal admitted on 31/8/1989 on substantial question of law regarding availability of Section 53-A defence.
Issues
Whether the defence of Section 53-A of the Transfer of Property Act, 1882 was available to the respondents in the facts and circumstances of the case.
Submissions/Arguments
Appellant argued that the agreement was void and illegal, and that the respondents had no right to retain possession.
Respondents contended that they were in possession under the agreement and had performed their part, thus entitled to protection under Section 53-A of the Transfer of Property Act.
Ratio Decidendi
The defence of Section 53-A of the Transfer of Property Act, 1882 is available to a person in possession under an agreement to sell who has performed or is willing to perform his part of the contract. In this case, the respondents were in possession based on the agreement dated 1st February 1966, and the appellant failed to execute the sale deed despite notice. Therefore, the respondents were entitled to retain possession under the doctrine of part performance.
Judgment Excerpts
This is a second appeal filed by the appellant original plaintiff and thereby sought to challenge the concurrent findings given by the Courts below, of dismissing the suit for declaration that the agreement dated 1st February, 1966, was void and illegal and the defendant has no right to retain the possession of the property on the strength of said agreement to sale and prayer for possession of the suit property.
The appeal was admitted on 31/8/1989 on the following substantial questions of law; Whether the defence of Section 53-A of Transfer of Property Act (T.P.Act), was available to the respondents in the facts and circumstances of the case.
Procedural History
The appellant (original plaintiff) filed a suit in 1973 for declaration and possession. The trial court dismissed the suit. The first appellate court confirmed the dismissal. The appellant then filed the present second appeal, which was admitted on 31st August 1989 on the substantial question of law regarding Section 53-A of the Transfer of Property Act, 1882. The High Court heard the appeal and dismissed it on 22nd December 2005.
Acts & Sections
- Transfer of Property Act, 1882: Section 53-A
