Madras High Court
Vellaiyan vs Nookkammal on 4 April, 1997
Equivalent citations: 1997(3)CTC157
ORDER S.S. Subramani, J.
1. Defendant in O.S.No.797 of 1980, on the file of District Munsif's Court, Tirunelveli, is the appellant.
2. Suit filed by the respondent was one for recovery of property on the following allegations:-
The property belonged to one Chellam Iyer and others, under whom the appellant was admittedly a tenant. While he was enjoying the property as a lessee, he entered into an agreement for sale, agreeing to purchase the property for Rs. 8,750 and also paid an advance of Rs. 101. A term of nine months was provided for completion of the contract. But the sale could not materialise. Thereafter, the plaintiff purchased the property. It is the case of the plaintiff that when the defendant entered into an agreement for sale, his tenancy right also came to an end and the same could not revive after the agreement had lapsed. Possession of the defendant, therefore, is not lawful, or at any rate, not as a tenant. Plaintiff, on the basis of his title, is entitled to recover the property.
3. As against the said contention, the appellant pleaded that it was while he was a lessee, he entered into an agreement. The agreement did not create any interest in the property, nor was his possession subsequent to the agreement has in any way changed. He was all along a lessee and in spite of lapse of the agreement, the tenancy right cannot be taken away.
4. On the above pleadings, trial court held that the agreement will not put an and to the tenancy. He continued as a tenant and he is not liable to be evicted, through civil court. The suit was dismissed.
5. The matter was taken in Appeal as A.S.No.23 of 1984, on the file of sub-court, Tirunelveli. The lower appellate court reversed the finding and held that the tenancy came to an end along with the agreement for sale. The suit was decreed. The said judgment is appealed before this court.
6. At the time of admission of the second appeal, the following substantial question of law was raised for consideration:
"Whether by entering into an oral agreement for sale, a tenant who is in occupation of the suit land for many years will lose his original character of tenant as viewed by the lower appellate court?"
7. An agreement for sale does not create any interest in land is clear from the provisions of Section 54 of the Transfer of Property Act. The plaintiff has no case that pursuant to the agreement, possession passed to the defendant or there was a change in the nature of his possession. Plaintiff must have a case that pursuant to the agreement for sale, defendant was put in possession or the nature of his possession changed in part performance of the contract. Unless that is pleaded and proved, there cannot be any question of determination of earlier possession or character of earlier possession.
8. In Govindrao v. Devi Sehai, , it was hold thus:-
"To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are prerequisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property of 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. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract.
Anything done in furtherance of the contract postulates the pre-existing contract and the acts done in furtherance thereof. Therefore, the acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance.
Mere oral agreement to discharge a mortgage can hardly be said to be an act of part performance unless in fact such an act is done by a discharged mortgage deed being returned to the mortgager.
This mere recital in the unregistered sale deed is hardly indicative of the change in the nature of possession when there is no evidence to show that he moved the authorities that he would be liable to pay taxes as owner."
9. In R. Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (2) LW 148 , the question that come for consideration was, whether a tenant is entitled to deny the title or whether the already existing relationship of landlord and tenant will come to an and, on the basis of an agreement for sale. It was held thus:-
"From the observations of the Supreme Court, in Govindrao v. Devi Sehai, , it is clear that the mere retention of earlier possession as tenant would not be sufficient, but that there has to be some independent material or evidence to establish that the retention of possession was as a result of part performance of the agreement to sell. In this case, there is absolutely no material whatever to show that the nature of "the possession changed its character after 28/8/1969 or even after 5.11.1969. It is seen that the decision in 1979 TLNJ 311 had not taken note of the decision of the Supreme Court in Govindarao Mahadik v. Devi Sahai, . The observation therein that the old theory that the contracting party must be inducted into possession pursuant to the agreement, is no longer valid, appears to be to widely stated and also against the dictum of the Supreme Court, and cannot therefore, he pressed into service by learned counsel for the petitioner to contend that there is no relationship of landlord and tenant between the respondent and the petitioner."
10. In Jessie Thavamani v. Liakath Rasha, and also R. Kanthimathi and Anr. v. Beatrie Xavier, 1996 (I) M.L.J. 666 also, similar question came for consideration. In both the cases, their Lordships said that unless there is a specific agreement to put an end to the existing relationship, the earlier arrangement will continue. In the earlier decision, A.R. Lakshmanan, J. held thus:-
"By merely entering into an agreement of sale, the tenant cannot acquire any right in the property. If possession is traceable to the agreement of sale, then such possession an be sustained on the basis of the principle of part performance under Section 53-A of the Transfer of Property Act. An oral agreement to shall would not terminate the landlord tenant relationship and even if there was an agreement of sale, it had to be in writing and the agreement itself should in clear terms, specify that the landlord/tenant relationship was being terminated and that there was no future liability on the part of such specific recitals in the written agreement, the mere oral agreement of sale should not exonerate the tenant from continuing to pay rent to the landlord. In the later decision, Thanikkachalam, J., as he then was, held thus:-
"In the sale agreement, there was no mention to the effect that the tenant can be in possession of the petition premises without payment of rent. In the absence of such recital, it is incumbent upon the tenant to pay the rent to the landlady. Under such circumstances, the relationship between the petitioner and the respondents in the revision petition would be that of landlady and tenants.
11. Learned counsel for the respondent relied on the decision reported in Syed Shmed v. Salima Bi and Ors., 1980 (2) M.L.J. 372. There, the question was, when does a merger take place. It was held in that case that a merger takes place when a lessor estate and the greater estate merge in one person at one and the same time and no interest in that property should remain outside. In a lease, the estate of the lessor is a reversion and in the present case that had come to be vested with the petitioner who was a lessee, and there was no other interest in the property which had remained outside. Consequently in the present case, there was a merger of the interest of the lessor and the lessee in the petitioner. I do not think the said decision has any application to the facts of this case. In the case, cited the lessee admittedly became the owner of the property, though subsequently that ownership found to be invalid. In that case, when the ownership also comes to the lessee, the lease comes to an end since the lessor estate has merged with a larger estate. In this case, there is only an agreement for sale, and the ownership continued to be with the owner, and the Transfer of Property Act says that the agreement will not create any interest in the property. There is no scope for any merger, and there cannot be a larger or lessor estate coming to the same person. The contention is, therefore, rejected.
12. In the result, I allow the second appeal by restoring the judgment and decree of the trial Court. O.S.No.797 of 1980, on the file of District Munsif s Court, Tirunelveli, is dismissed with costs, in all the three courts.