1. The plaintiff is represented by the appellant before me. The plaintiff filed a suit for possession of the suit land alleging that the land belonged to his mother; that the same had been confiscated by the Government for non-payment of the Govt. revenue; that proceedings were taken for the release of the property from attachment by the Government and that finally in 1341F the land was released in favour of the plaintiff. He stated that the defendant acted as his agent in these proceedings and taking advantage of that position he came to be in possession of the property and had made others also come and occupy the property. He, therefore, prayed that the defendant as well as the others in occupation of the land be ejected and possession given to him. The defendant, while admitting that the plaintiff was the owner of the land, stated that for the trouble taken by him in getting the land released from the attachment of the Government the plaintiff made an agreement with him to sell the land and in pursuance of that agreement to sell the land he (the defendant) came to be in possession of the land.
2. In short the defendant pleaded that he was in possession of the land in pursuance of the agreement to sell and he pleaded part performance and resisted the suit stating that he could not be ejected by reason of Section 53-A of the Transfer of Property Act. The first Court held that the alleged agreement set up by the defendant was not proved and there was not agreement as a matter of fact by the plaintiff with the defendant. In the result it decreed the suit of the plaintiff. On appeal by the defendant the lower appellate Court held that the documents relied upon by the defendant proved that there was an agreement and that the agreement to sell was established. The Court held that the defendant was entitled to get possession of the land by reason of the operation of Section 53-A of the Transfer of Property Act. It dismissed the plaintiff's suit. Plaintiff has now come up in second appeal.
3. The points that have been raised by the learned advocate for the appellant are (1) that in 1337F when the plaintiff is said to have agreed to sell the land the plaintiff had not become the owner because the property was released only in 1341F, and therefore, when he himself did not become the owner he was not competent to sell (2) that the defendant could not have got possession in 1337F, as the lands were released only in 1341F, and therefore, if he could not get possession in pursuance of the agreement to sell, he could not invoke the provisions of Section 53-A of the Transfer of Property Act; and (3) that the agreement, if at all, was with one Nasir Yar Jung and not with the defendant and the defendant could not take advantage of an agreement with a third party. It was urged by the learned advocate for the respondent that the documents in the case conclusively proved that the agreement was with the defendant and not with Nasir Yar Jung; if, therefore, the agreement was with the defendant and he was in possession of the property he was entitled to invoke the provisions of Section 53-A of the Transfer of Property Act.
4. The decision of this case turns upon the operation of Section 53-A of the Transfer of Property Act, so far as the facts of this case are concerned. Section 53-A of the said Act has imported in a modified form the English doctrine of part performance. The doctrine is that where a person makes a contract to transfer for consideration any immovable property by writing signed by him or on his behalf and (b) the transferee has taken possession of the property in part performance of the contract or if he is already in possession, continues in possession and has done some act in furtherance of the contract and (c) is willing to perform his part of the contract, then the transferor shall be debarred from enforcing against the transferee any right other than the right expressly provided by the terms of the contract notwithstanding the fact that the contract, though required to be registered, has not been registered.
5. Apart from the oral evidence led by the parties in the case there are three documents filed, which are important in order to determine as to the nature of the contract and to decide as to between whom the contract was entered into. These documents are Ex. A-44, Ex. A-47 and Ex. A-48. These documents are admitted by the plaintiff and no question of proof therefore arises. Exhibit A-47 is a document of 5th Shehrewar 1337F, addressed by the predecessor-in-interest of the plaintiff to Nawab Naseer Yar Jung wherein he says as follows:
“I understand that you want to buy the land (the suit land). I am prepared to sell the same for a sum of Rs. 1335/-”.
6. Exhibit A-48 is of the same date and is a letter written by the predecessor-in-interest of the plaintiff to the defendant wherein he says:
“As desired by you I am prepared to sell to Naseer Yar Jung for Rs. 1335/- the land and you can take possession of it on behalf of the Nawab”.
7. Exhibit A-44 is an agreement executed by Nawab Naseer Yar Jung in favour of the defendant wherein he says that he is not the owner of the land and that the land belongs to Gulam Ali (Ahmed Mian), the defendant. This document was written by the Nawab in response to a letter written by a friend of the defendant in which that friend says that he had seen the Nawab and asked him to write a letter saying that he had nothing to do with the land and that such a letter was necessary in order that there may not be any difficulty from the Nawab's heir.
8. The contention of the learned advocate for the I appellant was that the agreement was admittedly I in favour of Naseer Yar Jung and as such I the defendant could not be regarded as the trim feree. These documents in my opinion go to I show conclusively that the vendee or the trans feree in this case was the defendant and not I Naseer Yar Jung. It is no doubt true that the 11 advantage of Sections 53-A of the Transfer of Property Act, could be availed of only by the transferee or a person claiming under him. That is clear from the decision of the Privy Council in the case of — ‘S.N Banerjee v. Kuchwar Lime Stone Co., Ltd.’, AIR 1941 PC 128 (A), wherein their Lordships make it clear that Section 53-A of the Transfer of Property Act, which creates rights of estoppel between the proposed transferee and the transferor has no operation against a third person not claiming under these persons. In my opinion the effect of these three documents referred to is that the transferee in the case is the defendant and not Naseer Yar Jung. Therefore Naseer Yar Jung was only all benamidar and the real transferee was the defendant and as such he is entitled to the benefit of the provisions of Sections 53-A of the Transfer of Property Act.
9. The essential ingredients for the operation of S. 53-A are that the transfer must be for consideration; there must be a right created agreeing to sell the property and thirdly the transferee must have taken possession of the property in pursuance of the contract. So far as the first ingredient is concerned the documents show that it was a transfer for consideration for it is stated therein that the plaintiff was willing to sell the property for a consideration of Rs. 1335/-. It is in writing signed by the plaintiff. The whole question is as to whether the defendant could be said to have taken possession of the property in pursuance of the transfer. It is clear from the record that the defendant was the general power agent of the plaintiff looking after his lands as the plaintiff was employed and staying in the districts. This land belonged to the mother of the plaintiff and the land had been confiscated by the Government and kept under attachment because of non-payment of government revenue. It is stated that the defendant took steps to see that the land was released from attachment in favour of the plaintiff.
10. The course of events would show that the land was attached in 1332 F and the proceedings for the release of attachment went right up to 1341 F when the land was released in favour of the plaintiff. The contention of the learned advocate for the respondent is that even before the land was attached by the government for non-payment of Government revenue the defendant was actually in possession of the property and he continued to be so even in 1341 F, the plaintiff never got possession of it; the release of attachment was only on paper but the possession actually continued to be with the defendant and as such his possession should be regarded as possession in pursuance of the agreement to sell executed in 1337 F.
11. To invoke the doctrine of part performance the transferee must take possession of the property and if he be already in possession and continues as such, he must, in furtherance of the contract, do some act which must be such as to constitute an act of part performance. The acts of part performance, if they preceded the contract, could not be evidence of part performance. The question is can the possession of the defendant be referred to the particular agreement of transfer of 1337 F and not to any other relationship? As stated by me above the defendant happened to be in possession of the property as an agent of the plaintiff and if he continued to be in possession till the date when the property was released in favour of the plaintiff, such possession cannot be regarded as possession constituting part performance of the contract to transfer. For example, if a tenant in possession chooses to sue for specific performance for an alleged contract for a new lease the mere fact of is continuance in possession will have no weight as an act of part performance of a contract being referred to his character as tenant. To quote to on Specific Performance, to make the acts of part performance effective, to take the contract to of the statute of frauds, they must be consistent with the contract alleged and also such as cannot be referred to any other title than a contact nor have been done with any other view or designed than to perform a contract. Fry on specific Performance, page 279, — ‘Dakshinamurthy Mudaliar v. Dhanakoti Ammal’, AIR 1925 Mad 965 at p. 967(B).
12. It is essential, therefore, that if a transferee is already in possession and continues in possession he must have done some act in furtherance of the contract in order to constitute a part performance of the contract. My view is supported by a decision of the Calcutta High Court in the case of — ‘Simbhooram Beriwaia v. Guzraiilai’, ILR (1837) 1 Cal 65 (C). Applying the above test to this case before me there is no proof of any further or overt act on the part of the defendant and therefore the defendant cannot take advantage of Section 53-A of the Transfer of Property Act.
13. The next question is as to whether S. 53-A has any retrospective effect. The facts would show that the agreement for sale was executed in 1337 F and S. 53-A was incorporated in the Transfer of Property Act in 1341 F. The section contemplates the coming into possession of the transferee in pursuance of the agreement to sell. As I have discussed, the land was attached by the Government for non-payment of Government revenue. It was urged that although the property was attached it was not put up for sale and it continued to be in the possession of the defendant. That possession, as I have indicated above, was in his capacity as an agent of the plaintiff. It could not be traced to the agreement of sale. Therefore, taking the extreme case, viz., that the defendant's possession in 1337 F was in pursuance of the agreement to sell could he take the benefit of a provision of law which was to come into operation two years after?
14. With regard to this question there is a difference of opinion. One set of rulings takes the view that the section is not retrospective so as to affect acts of part performance which took place before the section came into operation irrespective of the fact whether the suit was filed before or after the date. Another view is that the section would apply where the suit is instituted after the section came into operation though the act of part performance took place before that date. With respect I am inclined to agree with the view that the section would apply where the suit is instituted after the section came into operation though the act of part performance took place before that date. It is not necessary for me to discuss that question in detail in this case for the reason that I have come to the conclusion that there was no act of part performance in this case by the defendant as envisaged by Section 53-A of the Transfer of Property Act.
15. It was argued by the learned advocate for the appellant that the document of Shehrewar 1337 F cannot be regarded as an agreement to transfer as during that period the plaintiff had no title to the property and if he had no title he could not agree to sell the property. I do not think that there is any force in this argument. The plaintiff had title to the property and the property was only under attachment of the Government for non-payment of revenue. It would have been different if the property had been sold to a third party for the realisation of the Government revenue. As the facts would show the property was only under attachment and before ever the property could be put to sale the amount was paid to the Government and the property released from attachment. The agreement, therefore, cannot be regarded as void. Section 6 of the X.P Act which was relied upon by the learned advocate can have no application for the reason that it was an interest in present and not a spes successionis. One other contention which has got to be dealt with is as to whether the doctrine embodied in S. 53-A would apply where the vendee's suit for specific performance has become barred by limitation. It may be taken to be settled law that this doctrine would apply even where the vendee's suit for specific performance has become barred. Suffice it to rely upon a Full Bench decision of the Madras High Court in the case of — ‘Vizagapatam Sugar Development Co. v. Muthu Rama Reddy’, AIR 1924 Mad 271 (D) and the decision of the Bombay High Court in the case of — ‘Venkatesh Damodar Mokashi v. Mallappa Bhimappa Chikkalki’, AIR 1922 Bom 9 (2) (E).
16. Having come to the conclusion that the defendant is not entitled to invoke the provisions of Section 53-A of the Transfer of Property Act, the question still remains whether any relief could be granted under S. 51. It would appear that the defendant has made a statement in his written statement that he has put up structures on the land which have cost him about more than Rs. 7,000/- and inasmuch as he did it in the bona fide belief that he is the owner of the land he was entitled to compensation for the improvements effected under Section 51 of the Transfer of Property Act. Section 51 says that where a transferee of immoveable property makes any improvement on the property believing in good faith that he is absolutely entitled thereto and he is subsequently evicted therefrom by any person having a better title the transferee has a right to require the person causing eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The question whether a person believed in good faith that he was absolutely entitled to the property is one of fact to be decided on the particular facts of each case. Taking the evidence in this case I am inclined to hold that the defendant did believe in good, faith that he was entitled to the property for, you have on record the letter of the plaintiff to the defendant that he is agreeable to sell the land for Rs. 1335/- to Naseer Yar Jung saying that the agreement was only nominal in his name and that the sale was to be in favour of the defendant. These conclusively go to show that the defendant rightly believed that he became entitled to the property. The question is as to whether of the two methods open to him under S. 51, viz., (1) to compensate the defendant for improvements effected by him and give the plaintiff a decree for ejectment on payment of the compensation of the amount and (2) make the plaintiff assign his interest in favour of the defendant, which would be more suitable, appropriate and justifiable having regard to the facts of this case. I find that the lower Court has not gone into this question for the obvious reason that it came to the conclusion that the defendant was entitled to keep possession of the property under the provisions of Section 53-A of the Transfer of Property Act. In the view that I have taken that the defendant is not entitled to keep possession I have to remand the case to the lower, appellate Court with the following direction.
17. The lower appellate Court will take evidence with regard to the improvements effected by the defendant and assess the same. After this is done it will leave the option of choosing between the two alternatives to the plaintiff (evictor) and, then pass orders accordingly.
18. In the result this appeal is allowed in part and the case remanded to the lower appellate-Court to decide the case afresh keeping in view the directions mentioned herein above. As regards the costs of this appeal I am of opinion that the circumstances of this case warrant that each party should bear his own costs. Ordered accordingly.
K.S.B
19. Case remanded.
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