Madhya Pradesh High Court
Jagdish vs Devkaran And 3 Ors. on 5 October, 2015
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W. P. No.13526/2013
05/10/2015
Shri Anuj Bhargava, learned counsel for the petitioner.
The present petition has been filed against order dated
12/04/2013 passed by Civil Judge, Class-I, Badnagar, Distt. Ujjain
in Civil Suit No.5-A/2011 by which the trial Court has held that the
agreement in question i.e. the agreement dated 31/12/1992 is
inadmissible document in evidence on the ground that it is not a
registered document.
Learned counsel appearing for the petitioner submits that
the document in question as was executed in the year 1992, and it
does not require registration in light of the amendment in Sec.17
of the Registration Act, as the same came into force from
14/01/2010. He has stated before this Court that at the relevant
point of time the document was executed and there was no
requirement to get the agreement registered and therefore, the
trial Court has erred in law and facts by passing the impugned
order.
Inspite of service of notices, there is no appearance on
behalf of the other side.
This Court has carefully gone through Sec.17 of the
Registration Act as well as the amendment which has been
brought to the notice of this Court and the same is in force w.e.f.
2010.
The trial Court has held that the agreement to sell is not
admissible in evidence as entire consideration was paid at the
time the agreement was executed.
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Learned counsel for the petitioner has placed reliance upon
the judgment delivered in the case of Rambhau Namdeo Gajre
Vs. Narayan Bapuji Dhotra (Dead) through LRs reported in
(2004) 8 SCC 614. Paragraph No.7 to 14 of the aforesaid
judgment reads as under:-
"7. Section 53-A was enacted in 1929 by the Transfer of
Property (Amendment) Act, 1929, and imports into India in a modified
form the equity of part performance as it developed in England over
the years. Doctrine of part performance as stated in Section 53-A of
the Act is an equitable doctrine which creates a bar of estoppel in
favour of the transferee against the transferor.
8. It is seen that many a times a transferee takes possession
of the property in part performance of the contract and he is willing to
perform his part of the contract. However, the transferor some how or
the other does not complete the transaction by executing a registered
deed in favour of the transferee, which is required under the law. At
times, he tries to get back the possession of the property. In equity
the Courts in England held that it would be unfair to allow the
transferor to take advantage of his own fault and evict the transferee
from the property. The doctrine of part performance aims at
protecting the possession of such transferee provided certain
conditions contemplated by Section 53-A are fulfilled. The essential
conditions which are required to be fulfilled if a transferee wants to
defend or protect his possession under Section 53-A of the Act have
been culled out of this Court in Shrimant Shamrao Suryavanshi &
Anr. Vs. Pralhad Bhairoba Suryavanshi, 2002 (3) SCC 676, are:
"16. (1) there must be a contract to transfer for consideration
of any immovable property;
(2) the contract must be in writing, signed by the transferor, or
by someone on his behalf;
(3) the writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
(4) the transferee must in part performance of the contract
take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of
the contract; and
(6) the transferee must have performed or be willing to
perform his part of the contract."
9. If these conditions are fulfilled then in a given case there is
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an equity in favour of the proposed transferee who can protect his
possession against the proposed transferor even though a registered
deed conveying the title is not executed by the proposed transferor.
In such a situation equitable doctrine of part performance provided
under Section 53-A comes into play and provides that
"the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and persons
claming 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."
10. Protection provided under Section 53-A of the Act to the
proposed transferee is a shield only against the transferor. It
disentitles the transferor from disturbing the possession of the
proposed transferee who is put in possession in pursuance to such
an agreement. It has nothing to do with the ownership of the
proposed transferor who remains full owner of the property till it is
legally conveyed by executing a registered sale deed in favour of the
transferee. Such a right to protect possession against the proposed
vendor cannot be pressed in service against a third party.
11. The question which falls for our consideration is:
"Whether the doctrine of part performance could be availed of
by the defendant with whom the respondent had never
entered into an agreement of sale?"
It is an admitted case of the parties that the plaintiff/respondent had entered into an agreement of sale with Pishorrilal on 16.6.1961 and who had taken possession of the suit land in part performance thereof. Sale deed had not been executed and registered in his favour. Pishorrilal did not take any steps for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. Within a period of 2- 1/2 months Pishorrilal executed a similar agreement of sale dated 1.9.1961 in favour of the appellant and put him in possession of the suit land. Pishorrilal did not have any right to enter into an agreement of sale with the appellant as he was not the owner of the suit land. The appellant did not care to ascertain the title of Pishorrilal to the suit land before entering into the transaction with him.
12. There was no agreement between the respondent and the appellant in connection with the suit land. The doctrine of part performance enshrined in Section 53-A of the Act could have been availed of by Pishorrilal against the plaintiff/respondent subject to the fulfillment of certain conditions but the same could not be availed of by the appellant against the plaintiff/respondent with whom he has no privity of contract. The doctrine of part performance as contemplated by Section 53-A can be availed of by the transferee or any person claiming under him. The appellant not being the transferee within the -4- meaning of Section 53-A of the Act could not invoke the equitable doctrine of part performance to protect his possession as against the plaintiff/respondent.
13. The agreement to sell does not create an interest of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100/- can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the Pishorrilal (proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. Vs. District Judge & Ors., 1997 (1) SCC 496, and it was held thus:
"7. Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the computation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement-holders, the title of the land would not get divested from the vendor and would remain in his ownership.There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant- State. That section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed -5- by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant-State when it seeks to enforce the provisions of the Act against the tenure- holder, proposed transferor of these lands."
[Emphasis supplied] There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfillment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. Appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract.
14. Doctrine of part performance is rooted in equity and provides a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee if the proposed transferee satisfies other conditions of Section 53-A. It operates as an equitable estoppel against the original owner to seek possession of the property which was given to the proposed vendee in part performance of the contract. Appellant being a third party and not a privy to the transaction on which the estoppel rests can take no advantage of it."
In light of the aforesaid, so called agreement cannot be treated as a document of sale and therefore, the order dated 12/04/2013 passed by the trial Court deserves to be quashed and is accordingly quashed. The trial Court is directed to proceed ahead with the matter and decide the civil suit on merits.
With the aforesaid, the writ petition stands disposed of. C. C. as per rules.
-6-(S. C. SHARMA) JUDGE Tej