Page 1

1

REPORTABLE

          IN THE SUPREME COURT OF INDIA

         CIVIL APPELLATE JURISDICTION

 CIVIL  APPEAL NOS.  4311-4312       OF 2017 (ARISING OUT OF S.L.P (C) NOS.29405-29406 OF 2008)

VASANTHI     .…APPELLANT

VERSUS

VENUGOPAL (D) THR. L.RS.      ....RESPONDENT(S)

J U D G  M E  N T  

AMITAVA ROY,J.

Leave granted.

2. The impugnment  herein  is both of the judgment and order

dated 31.7.2006, rendered by the Single Judge of the High Court of

Judicature  at  Madras  in  A.S.  No.  124 of  1990,  preferred  by  the

appellant/plaintiff   questioning  the  decision  of  the  Subordinate

Judge, Cuddalore dated 28.4.1989 in O.S. No. 172 of 1987 as well

as the order dated 8.10.2007, passed by the Division Bench of the

said High Court rejecting the Letters Patent Appeal SR. No.16958 of

2007 preferred by her  against the dismissal of Appeal A.S. No.124

Page 2

2

of 1990, as not maintainable in the face of  Section 100-A of  the

Code of Civil Procedure, 1908 (as amended) (hereinafter referred to

as “CPC/Code”).

3. We have heard Mr. R. Basant, learned senior counsel for the

appellant/plaintiff and Ms. Malini Poduval, learned counsel for the

respondents.

4. As the rival assertions are integrated in the pleadings, a brief

reference thereto, is indispensable. The appellant/plaintiff instituted

O.S.  No.172  of  1987  against  the  predecessor-in-interest  of  the

present  respondents  i.e.  Venugopal  (deceased)  praying  for  a

declaration of her title in the suit property and also for recovery of

possession thereof.  She claimed to have purchased the same vide

registered sale deed dated 26.6.1982 for the consideration price of

Rs.35,000/-  from  the  sons  of  Ramnathan  Chettiar,  the  original

owner, whereupon she was registered in the municipal records as

the title-holder thereof.  She averred that at the time of sale, the

original defendant Venugopal was in possession of the property as a

tenant of her vendors on payment rent of Rs.100 per month.  As the

defendant-Venugopal  did  neither  accept  her  as  his  landlord  nor

agreed  to pay the enhanced rent  of Rs. 150/-, as demanded, after

Page 3

3

causing a notice to be served on him,  the appellant/plaintiff filed an

application before the Rent Controller,  Cuddalore being R.C. O.P.

No. 29 of 1986  for his eviction from the suit property.

5. In  the  said  proceeding,  the  original  defendant-Venugopal

denied  the  title  of  appellant/plaintiff  in  the  suit  property  and

claimed to be in occupation thereof on the strength of an agreement

of sale executed between him and the original owner Ramnathan

Chettair.  At this, the appellant/plaintiff instituted a suit claiming

the  reliefs,  as  aforementioned,  by  pleading  that  neither  she  was

aware of any such agreement at the time of her purchase nor of any

part  performance  thereof  as  claimed  and  that  even  if  any  such

agreement did exist, the respondent/defendant was not entitled to

remain  in  possession  of  the  suit  property  without  enforcing  the

same, as contemplated in law.   She contended that she was a bona

fide purchaser  for  value without notice of  such agreement and

maintained  that  the  defendant  was  not  entitled  to  avail  the

protection under Section 53A of the Transfer of Property Act, 1882

(for short, hereinafter to be referred to as “T.P. Act”).

6. The  original defendant-Venugopal in his written statement,

while reiterating that Ramnathan Chettiar  was the owner of the suit

Page 4

4

property,  stoutly   denied  the  transaction  of  sale  by  his  sons  in

favour of the plaintiff vide registered sale deed dated 26.6.1982.  He

also  asserted  that  the  vendors  of  the  appellant/plaintiff  had  no

subsisting title in the suit property to convey to her.  He denied that

his possession of the suit property at the time of purported sale in

favour of appellant/plaintiff was that of a tenant under her vendors

and  reiterated  that  pursuant  to  an  agreement  of  sale  dated

20.5.1975 with the original owner Ramnathan Chettiar, he had  by

installments, in all paid Rs. 26,000/- by 12.4.1976 which formed a

major part of the consideration price.    He stated further that  at

the time of execution of the agreement of sale dated 20.5.1975, one

Purushothaman was in occupation of the suit property as a tenant

under the original  owner,  who following the compromise between

him (tenant) and the landlord vacated the suit premises, whereafter

possession thereof was delivered by the original owner to him on

1.7.1976  and  that  since  then,  he  paid  as  well  the  property  tax

therefor.  However,  though  agreed  upon  and  inspite  of  repeated

insistences, the original owner did not execute the sale deed and

after his death, his sons also avoided to do so. He claimed protection

of his possession in terms of Section 53A of T.P. Act and also alleged

Page 5

5

that the plaintiff was not a bona fide purchaser without notice of the

agreement for sale between him and the original owner.  He pleaded

as well that his right, secured under Section 53A of the T.P. Act, did

not stand effaced by any period of limitation, as time was not the

essence of contract for enforcing the specific performance thereof.

The  parties  though  did  exchange  additional  pleadings,  it  is

inessential to dilate thereon.

7. The Trial Court, on the basis of the pleadings, framed issues

and by its verdict dated 28.4.1989 dismissed the suit holding inter

alia that the possession of the original defendant of the suit property

was protected under Section 53A of the TP Act, as the ingredients

thereof stood complied with by him and that the appellant/plaintiff

was not entitled to the relief of declaration or possession, as sought

for.

8. Being aggrieved, the appellant/plaintiff preferred appeal being

A.S. No.124 of 1990 before the High Court of Judicature at Madras

and as hereinbefore mentioned, the same also met the same fate.

Her Letters Patent Appeal being L.P.A. SR No.16958  of 2007 was

dismissed as not maintainable being  in the teeth of Section 100-A

of  C.P.C..  

Page 6

6

9. Mr. Basant has assiduously urged that as Section 100-A of

CPC  is  not  attracted  to  the  LPA  filed  by  the  appellant/plaintiff,

dismissal  thereof,  by  reference  to  that  provision,  is  patently

erroneous.   Without  prejudice  to  this  plea,  the  learned  senior

counsel has urged that as the suit property had been purchased by

the appellant/plaintiff  by  a registered sale deed dated 26.6.1982

from  the  owners  thereof  and  as  the  transaction  has  remained

unimpeached, the agreement for sale  dated 20.5.1975  between the

predecessor in-interest of the respondents and the original owner,

even if valid, is of  no consequence and, therefore, both the forums

below,  have grossly erred in law and on facts in dismissing her suit.

He  further  contended that   not  only  the  appellant/plaintiff  is  a

bona  fide  purchaser  for  value  without  any  notice  of  the  said

agreement, in the face of the failure of the respondents to prove the

readiness and willingness of their predecessor to perform his part of

the contract at all relevant times and also  his  omission to file a suit

for specific performance within the prescribed period of limitation,

no protection  under Section 53A of T.P. Act was available to him

and  presently  to  the  respondents.  Further  as  the

respondents/defendants  have  declined  to  admit  the

Page 7

7

appellant/plaintiff  as  their  landlord,  their  occupation  of  the  suit

premises is that of rank trespassers and as such, are liable to be

evicted.  Mr. Basant placed reliance on the decision of this Court in

Kamla Devi vs. Kushal Kanwar and another  (2006) 13SCC 295

and  Mohd. Saud and another vs. Dr. (Maj.)  Shaikh Mahfooz

and others (2010) 13 SCC 517.

10. Ms. Malini Poduval, learned counsel  for the respondents, in

repudiation, has argued that the vendors of the appellant/plaintiff,

having  categorically  admitted  the  agreement  for  sale   dated

20.5.1975  between  their  predecessor-in-interest  Ramnathan

Chettiar and the original defendant Venugopal and his possession of

the suit property on the basis thereof, the finding that the benefit of

Section 53A  of the TP Act is extendable  to them, is unexceptionable

in the facts and circumstances of the case.  Not only the original

defendant had been ever ready and willing to perform his part of

contract, the purported purchase by the appellant/plaintiff from the

heirs of Ramnathan Chettiar, being with the full knowledge of said

agreement  and  the  possession  of  the  original  defendant,  on  the

basis thereof, the transaction of sale did neither convey any title to

her nor was it bona fide for all intents and purposes.  According to

Page 8

8

the learned counsel, the suit has been rightly dismissed by both the

forums and the dismissal of the LPA filed by the appellant/plaintiff

is also unassailable.

11. The competing propositions have been duly addressed.  The

disputation pertaining  to  the  maintainability  of  the  LPA deserves

attention at the threshold.   Section 100-A of the CPC was inserted

by the amendment Act 104 of 1976, which reads as under:

“100-A. No further  appeal in certain cases –  Notwithstanding anything contained  in any Letters Patent  for  any  High  Court  or  in  any  other instrument having the force of law in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by  a  Single  Judge  of  a  High  Court,  no  further appeal   shall  lie  from  the  judgment,  decision  or order of such Single Judge in such appeal or from any decree passed in such appeal.”

12. Though this Section was amended by the Amendment Act 46

of 1999, reference thereto is avoided as the said amendment was

not given effect to.

13. This provision underwent another amendment by Amendment

Act 22 of 2002, to be refashioned as hereinbelow.

Page 9

9

“100-A:   No  further  appeal  in  certain  cases  – Notwithstanding  anything  contained  in  any  Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force,  where  any appeal  from an original  or  appellate decree or order is heard and decided by a Single Judge of  a  High Court,  no further  appeal  shall  lie  from the judgment and decree of such Single Judge.”

14. This amended provision enforced w.e.f.  1.7.2002 predicated

that notwithstanding anything contained in any Letters Patent for

any High Court or in any instrument having the force of law or in

any other law for the time being in force, where any appeal from an

original or appellate decree or order is heard and decided by a Single

Judge  of  a  High  Court,  no  further  appeal  would  lie  from  the

judgment and decree of such Single Judge.

15. The purport and purview of this amended provision fell for the

scrutiny of this Court, amongst others in  Kamla Devi (supra) and

Mohd. Saud (supra),  wherein it  was held in unambiguous terms

that  only Letters Patent Appeal, filed prior to the coming into force

of the said amendment vide Act 22 of 2002 would be maintainable

and as a corollary, by virtue of the bar contained therein, Letters

Patent Appeal filed thereafter, would not be maintainable.

16. As  the  contextual  facts  in  these  decisions  are  inessential,

Page 10

10

having regard to the hyaline legal postulations as above, elaboration

thereof  is  avoided.  The  dismissal  of  the  LPA  of  the

appellant/plaintiff,  in the face of the above judicially adumbrated

explication of Section 100-A of CPC by this Court, cannot thus be

faulted with.

17. Reverting to the availability of the protection of Section 53A of

TP Act to the original defendant and on his death, to the present

respondents, to reiterate, the evidence on record does proclaim that

the agreement for sale dated  20.5.1975 had indeed been executed

between  the  predecessors-in-interest  of  the  vendors  of  the

appellant/plaintiff and the respondents herein,  pursuant whereto,

an amount of Rs. 26,000/- in all had been paid by the proposed

purchaser and the  possession of the suit property had been handed

over to him in consideration thereof.   As a matter of fact, at the

time  of  execution  of  said  agreement,  the  suit  property  was  in

occupation  of  a  tenant  of  the  proposed  seller  i.e.  the

predecessor-in-interest of the vendors of the appellant/plaintiff and

that following a compromise, the tenant delivered possession of the

suit  property  to  the  predecessor-in-interest  of  the  present

respondents and since thereafter,  they are in occupation thereof.

Page 11

11

The  evidence  on  record,  however,  does  not  in  very  clear  terms

establish  that  the  appellant/plaintiff  had  conscious  notice  or

knowledge of this agreement for sale at the time of her purchase.

Admittedly  as  well,  neither  the  predecessor-in-interest  of  the

respondents  nor  they  had  taken  recourse  to  law  for  specific

performance of the agreement.  This assumes importance in view of

the averment made in the written statement that even prior to the

demise  of  the  predecessor-in-interest  of  the  vendors  of  the

appellant/plaintiff,  he  did  not  comply  with  the  requests  of  the

original defendant to get the sale deed executed and his legal heirs,

after his demise, also adopted the same non-cooperative stance.

18. Section 53A of T.P. Act and Section 16 of the Specific Relief

Act, 1964 (for short, hereinafter to be referred to as “Act, 1963”),

being of significant relevance are extracted hereunder:

“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,

Page 12

12

and  the  transferee  has  performed  or  is  willing  to perform his part of the contract,  then,  notwithstanding  that  2[***]  where  there  is  an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor 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.” (Emphasis supplied)

“16. Personal bars to relief.—Specific performance of a contract cannot be enforced  in  favour  of  a person—

(a) who would not be entitled to recover compensation for its breach; or

(b) who  has  become  incapable  of  performing,  or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion  of,  the  relation  intended  to  be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential  terms  of  the  contract  which  are  to  be performed by him, other than terms the performance of  which  has  been  prevented  or  waived  by  the defendant. Explanation.—For the purposes of clause

Page 14

14

of  the contract and has performed or is  willing to

perform his part of the contract.

20. In terms of this provision, if the above pre-conditions stand

complied with, the transferor or any person  claiming under him

shall  be  debarred  from  enforcing  against  the  transferee  and

person(s) claiming under him, any right in respect of the property of

which the  transferee  has  taken or  continue in  possession,  other

than  a  right  expressly  provided  by  the  terms  of  the  contract,

notwithstanding the fact,  that the transfer,  as contemplated,  had

not been completed in the manner prescribed therefor by the law for

the time being in force.  Noticeably, an exception to this restraint is

carved out qua a transferee for consideration, who has no notice of

the contract or of the part performance thereof.  

21. On a perusal  of the evidence adduced, it transpires that the

sale  deed  dated  26.6.1982  had  been  proved  on  behalf  of  the

appellant/plaintiff.  PW1  Subramanian,  the  husband  of  the

appellant/plaintiff in his testimony has stated that at the time of

purchase,  when he enquired  about the possession  of the original

defendant, his vendors told him that he was in occupation of the

Page 15

15

premises as a tenant and that  after the purchase, as he (original

defendant) refused to pay the rent, the  application before the Rent

Controller, Cuddalore was filed for his eviction therefrom and it was

in that proceeding, that the original defendant disclosed about the

agreement  for  sale,  whereafter  the  suit  had  to  be  filed  seeking

declaration  of  title  and  possession.   This  witness   categorically

denied about his knowledge of such agreement for sale  at the time

of purchase.

22. PW2 Deenadayalan,  one of  the  sons  of  the  original  owner

Ramnathan Chettiar on oath  affirmed the execution of the sale

deed  dated  26.6.1982  in  favour  of  the  appellant/plaintiff  for  a

consideration of Rs. 35,000/-.  Though, this witness admitted the

agreement for sale between the original defendant and his father,

he mentioned that on enquiry, his father had told him that the

agreement had lapsed as the purchase was not made within time.

This  witness  also  categorically  stated  that  he  did  not  disclose

about  the   agreement  for  sale   to  the  appellant/plaintiff  and

instead had  disclosed to her husband that the original defendant

was only a tenant in possession of the suit property.

Page 16

16

23. As against this,  the respondents, amongst others sought to

rely on the testimony of DW1 to the effect that he had always been

ready and willing to perform the contract and also in the reply to

the notice sent by the vendors of the appellant/plaintiff conveying

the cancellation of the agreement, he reiterated his readiness and

willingness to get the sale deed,  on the basis of the agreement for

sale, executed.

Page 17

17

24.   The  attendant  facts  and  the  evidence  on  record,  though

demonstrate that an agreement  for sale of the suit property had

been  entered  into  on  20.5.1975  between  the

predecessor-in-interest  of  the  vendors  of  the   appellant/plaintiff

and the original defendant and that an amount of Rs. 26,000/-

had been paid by the latter for which the possession of the suit

property had been delivered to him, to reiterate, adequate evidence

is not forthcoming to convincingly authenticate that the proposed

purchaser and thereafter  his  heirs i.e.  the present respondents,

had  always been ready  and willing to perform his/their part of

the  contract,  which  amongst  others,  is  attested  by  his/their

omission to enforce the contract in law. His/their readiness and

willingness to perform his/their  part  of  the contract  is  also not

pleaded  in  the  written  statement  in  clear  and  specific  term as

required.  Further  the  materials  on record also  do not  testify  in

unequivocal  terms  that  at  the  time  of  purchase,  the

appellant/plaintiff  had  the  knowledge/information  of  such

agreement for sale or the part performance as claimed, so as to

repudiate  her  transaction to  be  neither  bona fide  nor  one  with

notice  of  such  contract  or  the  part  performance  thereof,  as

Page 18

18

comprehended in the proviso to Section 53A of the T.P. Act.

25. The fact that  at the first instance, the appellant/plaintiff had

filed  an  application  before  the  Rent  Controller,  Cuddalore  for

eviction  of  the  original  defendant  as  a  tenant,  also  attests  her

ignorance at that point of time of the agreement  for sale and his

occupation of the premises in part performance thereof.

Page 19

19

26. This  Court  in  Shrimant  Shamrao  Suryavanshi  and

another vs. Pralhad Bhairoba Suryavanshi by Lrs. and others

(2002) 3  SCC 676, while tracing the incorporation of Section 53A in

the TP Act, vide Act of 1929, acting on the recommendations of the

Special Committee on the issue, had ruled  that mere expiration of

the period of limitation for bringing a suit for specific performance

would not debar a person in possession of an immovable property

by   way  of  part  performance  from  setting  up  a  plea,  as

contemplated therein in  defence to protect  his  possession of  the

property involved.  It was however underlined that  if the conditions

precedent, as enumerated, in Section 53A of the Act, are complied

with, the law of limitation would not come in the way of the said

person to avail  the benefit of the protection to his possession as

extended thereby  even though a suit for specific performance of a

contract by him had gone barred by limitation.  Explicitly therefore,

though mere expiry of the period of limitation for a suit for specific

performance may not be a bar for  a person in possession of  an

immovable property in part performance of a contract for transfer

thereof for consideration to assert the shield of Section 53A of  T.P.

Act, it is nevertheless imperative that to avail the benefit of such

Page 20

20

protection, all the essential pre-requisites therefor would have to be

obligatorily complied with.

27. In A. Lewis and another vs. M.T. Ramamurthy and others

(2007)  14  SCC  87,  it  was  propounded  that  the  right  to  claim

protection under Section 53A of T.P. Act would not be available, if

the transferee  remains passive without taking effective steps  and

abstains  from performing  his part of the contract or conveying his

readiness and willingness to that effect.

28. Added to this, to reiterate, is the proviso to Section 53A of T.P.

Act  which  excludes  from  the  rigour  of  the  said  provision  a

transferee for consideration, who has no notice of the  contract or of

the part performance thereof.  

29. In the contextual facts, as obtained herein, the materials  on

record  do  not  unmistakably  demonstrate  that  the  original

defendant  during his lifetime and on his demise, his heirs  i.e. the

respondents had been always and ever ready and willing to perform

his/their part of the contract and that the appellant/plaintiff had

notice either of the agreement for sale or the fact that the original

defendant had been in occupation of the suit premises by way of

part performance of the contract.          

Page 21

21

30. Apropos, Section 16 of the Act, 1963, specific performance of

a contract cannot be enforced in favour of a person who, inter alia,

fails to aver and prove that he has performed or has always been

ready  and  willing  to  perform the  essential  terms of  the  contract

which are to be performed by him unless prevented or waived by the

other party thereto.  As mentioned hereinabove, though there is an

averment  in  the  written  statement  that  before  the  death  of  the

predecessor-in-interest of the vendors of the appellant/plaintiff, the

original defendant  had requested him to execute the sale deed and

after his demise, he made similar demands with them, evidence is

jejune to irrefutably establish  the readiness and willingness of his,

during  his  lifetime  and  after  his  death,  of  the  respondents,  to

perform his/their  part of the contract.  It is also not the case of

either  the  original  defendant  or  the  present  respondents  that

his/their performance of the contract had been either prevented or

waived  by  either  the  vendors  of  the  appellant/plaintiff  or  their

predecessor-in-interest at any point of time.

31. Noticeably,  the  sale  deed   executed  in  favour  of  the

appellant/plaintiff and proved in evidence has not been annulled as

on date and is thus valid and subsisting.

Page 22

22

32. On an overall view of the matter, we are of the opinion that

the  conclusions  recorded  by  the  courts  below  are  based  on  an

erroneous understanding of the prescriptions of Sections 53A of T.P.

Act. The determinations made thus cannot be sustained.    

33. On an appraisal of the evidence on record, on the touchstone

of the above legal propositions, we are thus of the considered view,

that  though  the  LPA  preferred  by  the  appellant/plaintiff  is  not

maintainable in law, the respondents are not entitled to the benefit

of the protection of Section 53A of the T.P. Act read with Section 16

of the Act, 1963.

34. In the result, civil appeal filed against the judgment and order

dated 31.7.2006, rendered in A.S.  No.  124 of  1990 affirming the

judgment and order dated 28.4.1989  passed in O.S.  No.  172 of

1987 is allowed and Civil  Appeal  preferred against the judgment

and order dated 8.10.2007 passed in LPA SR No.  16958 of 2007 is

dismissed. As a consequence, the suit filed by the appellant/plaintiff

is decreed, as prayed for.  No costs.

............................................J.    (DIPAK MISRA)

Page 23

23

….........................................J.     (AMITAVA ROY)

NEW DELHI;  MARCH  21, 2017.