NANJEGOWDA Vs GANGAMMA .
Bench: MARKANDEY KATJU,CHANDRAMAULI KR. PRASAD, , ,
Case number: C.A. No.-002006-002006 / 2006
Diary number: 8189 / 2005
Advocates: Vs
S. N. BHAT
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2006 OF 2006
NANJEGOWDA & ANR. Appellant(s)
Versus
GANGAMMA & Ors. Respondent(s)
J U D G M E N T
CHANDRMAULI KR.PRASAD,J.
1. Defendant No.1 Nanjegowda and his wife defendant
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
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:
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“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.
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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.
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