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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