S.A.No.47/2002
1. Seshamma
2. K.Gopikrishnan
3. K.Gowrishankar Appellants vs.
Prayer:- Second Appeal against the judgment and decree of the learned I Additional District Judge cum Chief Judicial Magistrate, Coimbatore dated 31.7.2001 made in A.S.Nos.205 of 2000 and 144 of 1999 preferred against the judgment and decree of the learned II Additional District Munsif, Coimbatore dated 23.4.1999 made in O.S.Nos.2067 of 1993 and 1155 of 1996 respectively.
COMMON JUDGMENT The suit in O.S.No.1155 of 1996 was filed by one Haneef praying for declaration of title, recovery of possession and also for mesne profits as against one Seshamma and her two sons who are the legal representatives of one Kuppusamy Naidu. The Trial Court granted the relief of declaration of title in favour of the said Haneef, but, dismissed the prayer for recovery of possession and mesne profits. Seshamma and her sons, the defendants in the said suit, did not choose to prefer any appeal aggrieved by the declaratory relief granted in favour of Haneef in the said suit. But, Haneef, having been aggrieved by the denial of the reliefs sought for by him for recovery of possession and also for mesne profits, took up the matter in appeal in A.S.No.144 of 1999. The first appellate court allowed the appeal filed by Haneef. Thus, it is found that the suit in O.S.No.1155 of 1996 was decreed in entirety. Therefore, Seshamma and her two sons have preferred the present Second Appeal No.46 of 2002.
2. Seshamma filed a suit in O.S.No.2067 of 1993 praying for permanent injunction restraining Haneef from interfering with her peaceful possession and enjoyment of the suit property either by disconnecting electricity service connection or water tap connection installed in the suit property. The Trial Court, having accepted the plea of Haneef, dismissed the prayer for permanent injunction sought for by Seshamma. Aggrieved by the aforesaid verdict of the Trial Court, Seshamma filed an appeal in A.S.No.205 of 2000. The first appellate court dismissed the said appeal confirming the judgment of the Trial Court. Therefore, Seshamma has preferred S.A.No.47 of 2002 aggrieved by the judgment of the courts below.
3. The appellant Seshamma and her two sons have contended that the respondent N.M.Haneef, who was a member of Peelamedu Industrial Weavers Co-operative House Construction Society Limited, Coimbatore, entered into an agreement with G.Kuppusamy Naidu, the husband of Seshamma agreeing to sell the suit property to him. G.Kuppusamy Naidu was directed to pay the instalments due and payable to the said Society by Haneef. It is the case of Seshamma and her two sons that the entire amount due to the said Society was paid by the husband of Seshamma. Thereafter, the Society executed the sale deed in favour of Haneef with respect to the suit property by virtue of sale deed dated 6.4.1992. By virtue of the agreement for sale, Kuppusamy Naidu was inducted into possession of the property. On his demise, his legal heirs viz., Seshamma and her two sons are in possession and enjoyment of the same. As they have performed their part of the contract, they have invoked protection under
section 53A of the Transfer of Property Act, 1882. Alleging that Haneef is making an attempt to disconnect electricity and water tap connection, Seshamma filed a suit for permanent injunction to restrain such an act of Haneef. Seshamma and her two sons resisted the suit for declaration of title, recovery of possession and mesne profits sought for by Haneef invoking the benevolent provision under
section 53A of the Transfer of Property Act, 1882.
4. Haneef, the respondent herein would contend that he entered into a contract with Peelamedu Industrial Weavers Co-operative House Construction Society Limited, Coimbatore on 16.8.1962. The Society was deemed to be the owner of the property and Haneef was deemed to be the hirer. Haneef, who was put into possession and enjoyment of the suit property, has continued to be in possession of the suit property, making periodical payments as per the terms of the contract with the Society. Kuppusamy Naidu was inducted into possession of the suit property as a care taker of the property. Periodical dues from 1976 to 1989 were paid by G.Kuppusamy Naidu only for and on behalf of Haneef. The possession given to G.Kuppusamy Naidu was terminated by the notice issued by Haneef. Therefore, Haneef has sought for declaration of title, recovery of possession and mesne profits with respect to the suit property.
5. Both the suits were taken up for common disposal by the courts below. The Trial Court was pleased to hold that the subject agreement for sale, Ex.A7 dated 16.9.1977 was a true and valid agreement for sale. The possession was delivered to Kuppusamy only in part performance of the agreement for sale, Ex.A7. Therefore, Seshamma and her two sons were entitled to the benefits of
Section 53A of the Transfer of Property Act, 1882. The plea of the respondent Haneef that Kuppusamy was inducted only as a care taker was rejected by the Trial Court. Though Seshamma was entitled to the benefits of
Section 53A of the Transfer of Property Act, 1882, she could use it only as a shield and not as a sword and therefore, she would not be entitled to a relief of permanent injunction as sought for by her. The Trial Court, ultimately, dismissed the suit filed by Seshamma seeking permanent injunction and refused to grant the relief of recovery of possession and mesne profits sought for by the respondent Haneef, but, granted the relief of declaration of title.
6. The first appellate court held that Ex.A7 agreement for sale alleged to have been executed by Haneef was not true and value. Therefore, the first appellate court chose to grant a decree for declaration of title, recovery of possession and mesne profits as prayed for by the respondent Haneef and consequently, rejected the plea for permanent injunction sought for by the appellant Seshamma.
7. During the course of admission of the second appeals, the following substantial questions of law were commonly formulated for determination:-
"1. When the possession was handed over by the plaintiff to the defendant is it not open to the plaintiff to prove the exact character of possession, for which he hands over the possession of the suit property to the defendant.
2. When the purchaser had paid the entire sale consideration to the vendor, will not the presumption arise that the purchaser was ready and willing to perform his obligations arising under the agreement of sale.
3. Whether the courts below are correct in holding that the appellant is not entitled to the benefits under
Section 53 of the Transfer of Property Act."
8. Learned counsel appearing for the appellants Seshamma and her two sons would submit that Ex.A7 was established by examining PW3 one of the attestors to the said document. The minor contradictions in the evidence of PW1 and PW3 had been blown out of proportion by the first appellate court. The first appellate court failed to appreciate the fact that there is a clear reference in the registered Will, Ex.A10 about the existence of the agreement for sale, Ex.A7. The appellants have produced the pass book and receipts to establish that it was only Kuppusamy Naidu who made payment to the Society. Ex.A18 dated 12.5.1991 written by Haneef, the respondent herein would go to establish that he, having admitted the execution of the agreement for sale, promised to execute the sale deed in favour of Kuppusamy Naidu. It is his further submission that no material has been produced to show that Kuppusamy Naidu was inducted only as a care taker. The first appellate court has completely misread the evidence available on record, he would further submit.
9. Learned counsel appearing for the respondent Haneef would submit that the first appellate court, on properly weighing the materials on record, has rightly returned a finding that Ex.A7 was not a true and valid document. The material contradiction in the evidence of PW1 and PW3 would go to show that Haneef had not executed the agreement for sale, Ex.A7. He would also submit that once the relief of specific performance is not available to the appellants herein, they cannot even use the provision under
section 53A of the Transfer of Property Act, 1882 as a shield. It is his further submission that the appellants can no longer seek for the relief of specific performance of agreement for sale as such a relief is hopelessly barred by limitation. Therefore, he would defend the verdict of the first appellate court.
10. The appellants have produced Ex.A7 agreement for sale said to have been executed by the respondent Haneef, the respondent herein on 16.9.1977. M/s.Venkatesan and Gurusamy had figured as witnesses to Ex.A7. The evidence on record would go to show that Venkatesan had already passed away. Therefore, the appellants chose to examine Gurusamy as PW3 to prove the execution of Ex.A7 by Haneef in favour of Gurusamy Naidu.
11. PW1 and PW3 were examined before the Trial Court in the year 1998 after a lapse of about 20 years from the date of execution of Ex.A7. PW1, it appears, was not present at the time when Ex.A7 was executed by Haneef. PW3 has spoken to the effect that only Gurusamy Naidu was present and not Seshamma at the time when Ex.A7 was executed. Therefore, PW3 is the competent person to speak about the execution of Ex.A7 by the respondent Haneef. He has categorically spoken about the agreement clinched between Gurusamy Naidu and Haneef and the execution of Ex.A7 by Haneef in favour of Gurusamy Naidu. As rightly pointed out by the learned counsel appearing for the appellants, the minor contradictions which are not very material for deciding the truth and validity of Ex.A7 had been blown out of proportion by the first appellate court.
12. Gurusamy Naidu chose to execute a registered Will, Ex.A10 dated 13.3.1980. There is a specific reference to the agreement for sale, Ex.A7 executed by Haneef in his favour. Had Gurusamy Naidu been inducted into possession of the suit property only as a care taker as contended by the respondent in the document which came into existence long prior to the litigation started, there would not have been any reference about the existence of Ex.A7 in the Will, Ex.A10.
13. The appellants chose to produce Ex.A18 dated 12.5.1991 to establish that Haneef, in fact, shot off a letter to Gurusamy Naidu expressing his desire to clinch the sale transaction. Haneef chose to admit his signature in Ex.A18, but, he disputes the recital in Ex.A18. If at all Haneef had left with Gurusamy Naidu certain blank papers with signature, he would not have kept quite for so long a time. Ex.A18 has been spoken to by PW1 Seshamma. It appears that Ex.A18 was written by Haneef to Gurusamy Naidu just before his death agreeing to execute the sale immediately after he obtained sale deed from the Society. In fact, by writing the aforesaid letter, Ex.A18, Haneef attempted to diffuse the apprehension in the mind of Guppusamy about the impending sale transaction. He has also instructed Kuppusamy Naidu to pay the balance dues, if any, to the Society to enable him to clinch the sale transaction at the earliest point of time. Considering the nature of recital found in Ex.A18 in the background of the evidence of PW1 about the letter received by Kuppusamy Naidu from Haneef, the court finds that the first appellate court has simply ignored the material document, Ex.A18 written by Haneef. The Trial Court has rightly held that Ex.A18 was written by Haneef to Kuppusamy Naidu promising to execute the sale deed. Ex.A18 completely seals the fate of the plea taken by Haneef that there was no agreement for sale entered into with Kuppusamy Naidu and Kuppusamy Naidu was inducted into possession only as a care taker.
14. The appellants also produced the pass book and receipts to establish that it was only Kuppusamy Naidu, who paid the dues to the Society on behalf of Haneef.
15. On comparison of the disputed signatures found in Ex.A7 with that of the admitted signature in Ex.A18, the Trial Court returned a finding that Ex.A7 was in fact signed by Haneef. But, such a finding was not even adverted to by the first appellate court.
16. Factually it is found that the first appellate court has returned a perverse finding completely ignoring the aforesaid materials available on record.
17. This court in BALUSAMY (DIED) CHINNA AMMAL AND OTHERS v. A.KUPPUSAMY NAICKER AND OTHERS (2007 (5) CTC 600) has held that once the suit for specific performance was dismissed, the only question that arises for consideration was whether the appellant was entitled to the benefit of
section 53A of the Transfer of Property Act. It has been further held that the appellant must plea and prove that he was ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement for sale. All the ingredients that are essential for specific performance should be proved in a claim under
section 53A of the Transfer of Property Act, it has been further held.
18. That was a case where the appellant, who sought to avail the benefit under
section 53A of the Transfer of Property Act, 1882, failed to establish that he was ready and willing to perform his part of the contract. Therefore, this court held in the said case that once the suit for specific performance was dismissed on the ground that the appellants were not ready and willing to perform his part of the contract, the appellants cannot seek protection under
section 53A of the Transfer of Property Act wherein also the appellant had to establish his readiness and willingness of his part of the contract. But, the fact situation in this case is totally different. Here is a case where admittedly, the entire amount due and payable by the respondent Haneef was already paid by Kuppusamy Naidu to the Society. In fact, the Society had already executed a sale deed, Ex.B2 dated 6.4.1992 in favour of Haneef on payment of the entire dues to the Society by Kuppusamy. The facts and circumstances of the instant case would go to show that nothing remains to be performed by Kuppusamy Naidu and his legal heirs inasmuch as they had already performed their part of the contract as per the terms of the contract. Therefore, the observation of this court in the aforesaid decision would not apply to the facts and circumstances of this case.
19. This court in VASANTHA AND OTHERS v. M.SENGUTTUVAN (1998(I) CTC 186) has held as follows:-
"The other question that arises for consideration is whether the respondent is entitled to recover the property. Admittedly, he is the owner. The suit for specific performance also stands dismissed. The trial Court entered a finding that the appellant cannot be treated as a trespasser, not as a person in possession without consent of the owner. This finding of the trial Court was not accepted by the lower appellate Court. The lower appellate Court held that the construction put up by the appellant was without authority and the owner's consent was not obtained. Once the suit for specific performance is dismissed, the only question that arises for consideration is whether the appellant is entitled to the benefit of
section 53-A of the Transfer of Property Act. Once I hold that the plaintiff was not ready and willing to take the sale deed, even if the appellant claims the benefit of
section 53-A of the said Act, that also will have to be found against him."
20. That was a case where the suit for specific performance filed by the agreement holder was dismissed on the ground that agreement holder was not ready and willing to perform his part of the contract. In such circumstances, this court held in the aforesaid case that once the plaintiff-agreement holder was not ready and willing to perform his part of the contract and the suit filed by him for specific performance also was dismissed, he cannot make a lawful claim to the benefits under
section 53A of the Transfer of Property Act. In the instant case, no such suit for specific performance was filed by the appellant and dismissed. As already pointed out by this court, the agreement holder had already performed his part of the contract.
21. In this context, the learned counsel appearing for the respondent Haneef would submit that the agreement holder Kuppusamy or his legal heirs have never woken up to insist for execution of the sale deed even after Haneef obtained sale deed in his favour. The learned counsel appearing for the appellant, drawing the attention of this court to Ex.A7, would submit that a duty was cast upon the respondent under Ex.A7 to issue notice in writing informing the agreement holder about the sale deed obtained by the owner of the property in his name to enable the agreement holder to make arrangements for execution of the registered sale deed within six months from the date of receipt of such intimation.
22. Pre-suit notice Ex.B8, of course, was given by the respondent, but, such a pre-suit notice called upon the appellants to vacate the premises and hand over vacant possession of the property. It is not actually an intimation as to the sale deed obtained in the name of Haneef to enable the appellants to go in for organising the execution of the registered sale deed as per the terms of Ex.A7. Therefore, the respondents cannot put the blame upon the appellants for not arranging for execution of the sale deed in time.
23. The Supreme Court in MOHAN LAL v. MIRZA ABDUL GAFFAR ((1996) 1 SCC 639) has held as follows:-
"The question then is whether he is entitled to retain possession under
Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of
Section 53-A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable 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 performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of the contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise."
24. That was also a case where a suit for specific performance filed by the agreement holder was dismissed and the same reached finality. Inasmuch as the agreement holder failed to perform his part of the contract, he lost the suit for specific performance. Therefore, the Supreme Court made an observation that
Section 53A cannot be invoked by the agreement holder to protect his possession when he was held to be unwilling to perform his part of the contract. In the special facts and circumstances of this case, as focussed earlier, the aforesaid ratio of the Supreme Court will have no application.
25. Two important aspects were dealt with by the Supreme Court in SHRIMANT SHAMRAO SURYAVANSHI v. PRALHAD BHAIROBA SURYAVANSHI ((2002) 3 SCC 676) which reads as follows:-
"A perusal of
Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part-performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part-performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of
Section 53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of
Section 53-A of the Act."
26. In this comparatively latest judgment, the Supreme Court has categorically held that the agreement holder is entitled to protect his possession over the suit property obtained in part performance of a contract despite the fact that the period of limitation for bringing the suit for specific performance had already expired. Therefore, on the ground that the period of limitation for bringing the suit for specific performance had already expired for the appellants, they cannot be evicted from the property they got in part performance of a contract.
27. In the very same decision of the Supreme Court, it has been further held as follows:-
"But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under
Section 53-A of the Act. The necessary conditions are:
(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."
28. The Supreme Court has adumbrated six conditions to be satisfied by a transferee who wants to protect his possession invoking the provision under
section 53A of the Transfer of Property Act, 1882. Here is a case where the appellants have thoroughly established that Ex.B7 agreement for sale was executed by Haneef in favour of the husband of the first appellant. The said agreement is found to be in writing signed by the respondent Haneef. Transfer of right and title in the suit property was contemplated in the agreement, Ex.A7. There is no dispute to the fact that Kuppusamy Naidu and thereafter, his legal heirs viz., the appellants herein have been in possession and enjoyment of the suit property. The plea that Kuppusamy Naidu was engaged as a care taker for the suit premises was rejected by this court. It is found that Kuppusamy Naidu and thereafter his legal heirs viz., the appellants herein have obtained possession of the suit property by virtue of the agreement for sale, Ex.A7 in part performance of the agreement for sale. It is in evidence that Kuppusamy Naidu, in terms of the agreement, Ex.A7, paid the entire dues payable by the respondent to the Society. In fact, the sale deed, Ex.B2 was executed by the Society in favour of the respondent only after the payment of entire consideration was made. The entire terms and conditions stipulated under Ex.A7 were completely performed by Kuppusamy Naidu. Nothing remains to be performed by Kuppusamy Naidu, so to say. Even in the matter of execution of the registered sale deed, a message in writing is expected only from the first respondent. The preparedness to go in for registration of sale deed on the part of Kuppusamy Naidu was contemplated only after such an intimation was received by him from the respondent. The materials on record would go to show that no such intimation in writing was given by the respondent to Kuppusamy Naidu or his legal heirs. Therefore, no unwillingness to perform the part of the contract to the appellants, who had already performed their part of the contract, can be attributed. All the six conditions adumbrated by the Supreme Court in the aforesaid ratio for the purpose of effectively defending the possession under
section 53A of the Transfer of Property Act, 1882 have been satisfactorily complied with by the appellants herein.
29. It is contended that the protection under
section 53A of the Transfer of Property Act was not sought for by the appellants in the written statement filed by them. Referring to the decision in T.S.KARTHIKEYA MUDALIAR v. SINGARAM PILLAI (AIR 1956 MADRAS 693), this court in C.SAROJA v. S.RAJALAKSHMI & 4 OTHERS (2009-5-LW 671), has held that there is no requirement that there must be a plea that the agreement holder was entitled to the protection under
section 53A of the Transfer of Property Act and that he was ready and willing to perform his part of the contract in a suit laid for recovery of possession by the owner of the property.
30. The first appellant has filed a suit seeking permanent injunction not to disturb her possession by disconnecting electricity connection and water tap connection as the owner of the property had already corresponded with the Department concerned for disconnection of the service. The Department concerned also was made party to the suit laid by the first appellant. Such a suit cannot be construed as suit for permanent injunction restraining the owner of the property from interfering with the agreement holder.
31. The delivery of possession of the suit property by the respondent to Kuppusamy Naidu was admitted unambiguously. The delivery of possession pursuant to the agreement for sale was in fact established by the appellants, but, the respondent has not established by adducing acceptable evidence that possession was handed over to Kuppusamy Naidu only in his capacity as care taker. The fact that the entire sale consideration was already paid would give rise to the presumption that the agreement holder Kuppusamy Naidu was ever ready and willing to perform his part of the contract. The first appellant, by filing a suit for permanent injunction not to interfere with her possession by disconnecting the electricity service connection and water tap connection, made an endeavour to enjoy the property without any nuisance flowed at the instance of the first respondent by filing such a nature of the suit. The first appellant had not used the provision under
section 53A of the Transfer of Property Act, 1882 as a sword but, used it only as a shield. The substantial questions of law are answered accordingly.
32. In view of the above facts and circumstances, the judgment of the first appellate court in A.S.No.144 of 1999 is set aside and the judgment of the Trial Court in O.S.No.1155 of 1996 stands restored. Consequently, Second Appeal No.46 of 2002 stands allowed. The judgment of the courts below in O.S.No.2067 of 1993 and A.S.No.205 of 2000 stand set aside and S.A.No.47 of 2002 is allowed and as a result, the suit in O.S.No.2067 of 1993 is decreed as prayed for but, without costs.
ssk To
1. I Additional District Judge cum Chief Judicial Magistrate, Coimbatore.
2. II Additional District Munsif, Coimbatore.
3. Tamil Nadu Electricity Board, by its Assistant Engineer, Peelamedu.
4. Coimbatore City Corporation, by its Commissioner, Coimbatore 641 001