Pappammal (Died) vs Sarojini on 29 November, 2010
36. That apart, Section 43 of the Transfer of Property Act can operate only during the time when the contract for transfer subsists and in the instance case, indisputably, the rights of the defendants 1 to 3 to seek specific performance has elapsed by efflux of time and the contract does not subsist for performance any longer. The decisions cited by the learned Senior Counsel for the appellants reported in AIR-1979-All-350 [Bhagwan Das Vs. Chandra Kali] is not applicable to the facts of the case as in the said case, the agreement vendee had in fact filed a suit for specific performance in time even when the contract subsisted. It is held in the decision cited supra that in order that Section 43 of the Transfer of Property Act to apply, the contract must be a valid one and enforceable in law. But, in the instant case, the rights of the defendants 1 to 3 to seek specific performance has elapsed and there is no subsisting contract between the parties. In spite of two notices sent by the plaintiff, it is evidently clear that the appellants remained quiet without taking any steps during the entire period of limitation that was available even after the notices and the filing of the suit by the plaintiff for possession. The mother of he plaintiff being only an attestor to the agreement, her non impleadment in the suit is not fatal to the case of the plaintiff.