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Report No. 70

49.31. Defendant.-

We may now consider the nature of the right. The right conferred by this section is a right on the part of the transferee to take a plea that the transferor is debarred from en-forcing any right in respect of the property transferred.1 Whether this means that the right is available only to a person who appears on the record as defendant is a difficult question.2

1. AIR 1954 Mad 702 (703).

2. (a) See AIR 1959 AP 568 (570);

(b) AIR 1959 Mad 354 (355);

(c) AIR 1956 Punj 181 (185);

(d) AIR 1950 Cal 23 (27);

(e) AIR 1966 Mys 86 (89); and

(f) Cases in paras. 49.33 to 49.40, infra.

49.32. Section 53A as a basis of suit.-

Although it is often taken for granted that section 53A cannot be used as a basis of a suit by the plaintiff, the position requires to be considered at some length. Whether the transferee who claims part performance is a plaintiff or a defendant should be immaterial so long as he does not claim that he has a title to the property and so long as his only object is to prevent the transferor from "enforcing" against him any rights other than these flowing from the contrast. The law on the subject, however, is not in a very satisfactory condition. This will be apparent from a few judicial decisions on the High Courts to which we refer below, before coming to a decision of the Supreme Court which professes to leave the matter open.

49.33. High Court cases.-

First, we take the cases holding that the person claiming on the basis of part performance can, in appropriate cases be in the position of a plaintiff. This view is represented by a decision of the Allahabad High Court,1 a Bombay case,2 by a judgment of the Oudh Chief Court3, and a judgment of the Andhra Pradesh High Court4. The judgment in the Andhra Pradesh's case was delivered by Subba Rao, C.J., and the pertinent observations are as follows:

"Whether the transferee occupies the position of a plaintiff or a defendant5 he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee.

The utility of the section or the rights conferred thereunder should not be made to depend on the manoeuvring for positions in a court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a court as plaintiff. Doubtless the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield".

1. Ram Chander v. Maharaja Kunwar, AIR 1939 All 611.

2. See infra.

3. Ewaz Ali v. Firdouz Jehan, AIR 1944 Oudh 212 (319).

4. Achayya v. Venkatasubbarao, AIR 1957 AP 854.

5. Emphasis supplied.

49.34. Suppose a transferee under a contract of transfer takes possession of the property in part performance of the contract. The property is sought to be taken in execution of a decree for ejectment previously obtained by the transferor against a third person. The transferee raises objections in the execution proceedings, but does not succeed, and is deprived of possession. Then, he sues under Order 21, rule 103, Civil Procedure Code, for getting rid of the order in execution proceedings and for recovering back possession of the property.

Is he entitled to succeed, relying on the provisions of this section? It was held by the Chief Court of Oudh in the under mentioned case1 that the transferee can rely on this section in such a case, because he is only defending his possession. The decision proceeds on the ground that the words of the section do not warrant a conclusion that the plaintiff as such is necessarily debarred from the benefit of the rule. It was observed:

"Where by the nature of the case, as disclosed by the pleadings or otherwise, it is apparent that the transferee comes to court to defend his possession against the invasion of it by the transferer he is entitled to invoke the equitable doctrine therein embodied. The present suit under Order 21, rule 103, Civil Procedure Code, is of that nature, being, in our opinion, practically a, continuation of the proceedings before the execution court, wherein the transferor and his representative succeeded in ejecting Mt. Firdaus Jahan from possession which she had originally taken in pursuance of the contract of purchase".

1. 1944 Oudh 212 (218, 219) (affirming AIR 1940 Oudh 1).

49.35. Acts of aggression.-

The trend of remarks in the judgment of the Oudh Chief Court referred to above seems to imply that a transferee may come to Court to defend his possession against acts of aggression on the part of the transferor or his representative, whatever form such aggression may take. In Ram Chandra v. Mahraj Kunwar, AIR 1939 All 611 (613), the transferrers acts of aggression were not in the form of any legal proceedings.

The transferor was trying to disturb the transferee's possession otherwise than in due course of law, and the transferee brought a suit for an injunction restraining him from interfering with his possession. It was held that the suit was but a form of defence by the transferee to the invasion of his rights by the transferor, and as such, was competent under this section.

49.36. The Oudh and Allahabad view has been followed in the following cases,1 but has been dissented from in the under mentioned decisions.2

1. AIR 1967 Born 34 (37): ILR 1966 Born 291;

1960 ILR 2 All 71 (90) (DB);

AIR 1957 AP 859 (861);

AIR 1956 Cal 350 (351);

AIR 1954 Mad 702 (703).

2. AIR 1964 Raj 11 (13); AIR 1952 OH 143 (145).

49.37. Mulla's view.-

Mulla, in his commentary on the Act,1 has commented that the true position was explained by Subba Rao, C.J., in the observations which we have also quoted above.

1. Mulla, (1973), p. 293.

49.38. Bombay case.-

In the Bombay case,1 the questions considered were whether-(i) section 53A can be used by the plaintiff, and (ii) whether the transferee in possession of property in part performance of the contract for the sale of property can maintain a suit under Order 21, rule 103 of the Civil Procedure Code against the auction purchaser of the same property. The first question was answered in the affirmative. However, on the basis that the auction purchaser was not "claiming under the transferor", the second question was answered in the negative.

On the major question, viz whether section 53A can be used as a ground of attack in this particular case, the High Court took the view that in a suit under Order 21, rule 103, the plaintiff does not claim title but only a right to present possession. "In essence, such a suit is defensive in character." Therefore, it agreed with the decisions in Oudh, Allahabad and Andhra Pradesh already referred to.

1. Maruti v. Krishna, AIR 1967 Born 34 (Naik, J.).

49.39. Madras view.-

In Madras also, the view has been taken that in a suit under Order 21, rule 63 or rule 103, Civil Procedure Code, the plaintiff can rely on part performance since he is not using it as a weapon of offence.1

1. E.P. Lima v. K. Kelandan, AIR 1954 Mad 782 (703) (Ramaswarni, J.).

49.40. Supreme Court judgment.-

We come now to the judgment of the Supreme Court. In Delhi Motor Company's case,1 it was held that the section is available only as a defence to a lessee, and not as conferring a right on the basis of which the lessee can claim possession or other rights on an unregistered lease. It observed that the section is available only as a defence to a lessee. In the Supreme Court case, the facts were as follows:

There was an unregistered sub-lease, purporting to have been executed by the respondents in favour of the appellants. Possession of the premises had been given to the appellants. After this, they were forcibly dispossessed by the respondents.

The first appellant, the Delhi Motor Company, was a partnership firm, of which the other four appellants were partners. The main respondent, the New Garage Ltd., was a private Limited company of which one "of the respondents was the managing director and the others were members of the board of directors. According to the appellants, an agreement to sub-lease and an actual sub-lease in pursuance thereof was evidenced by three unregistered documents exhibited in the case. Appellant K.S. Bhatuagar on behalf of the Delhi Motors entered in correspondence for lease with U.A. Basrnrkar, the Managing Director of the New Garage Ltd.

They arrived at an agreement on February 22, 1950. The Managing Director had at that time no power to enter into such an agreement on behalf of the company, and so on March 22, 1950 a resolution was passed by the board of directors authorising the managing director to enter into the transaction. Thereafter, the first appellant came into possession of two portions only, out of the three actually sub-leased and commenced its business there with effect from April 1, 1950.

Further, it was alleged that when Messrs Kanwar Brothers Ltd., vacated the other portion of the premises which was also included in the sub-lease, the respondents did not give possession of it to the appellants. On the contrary, they began to obstruct the appellants in their use of the two portions actually delivered to them and finally a stage came when they were completely dispossessed from them. The principal prayer in the suit was for delivery of possession in respect of all the three portions included in the sub-lease. The suit was decided in favour of the plaintiffs.

In appeal, the High Court of Punjab held that the three documents constituted either an agreement to sub-lease or a sub-lease falling within the provisions of section 2(7) of the Indian Registration Act, and since the documents were unregistered, the plaintiffs were not entitled to a decree. The firm came in appeal to the Supreme Court by special leave. The Supreme Court held that the suit was one for decree for possession on the basis of the unregistered lease, and such a suit did not fall within section 53A.

1. Delhi Motor Company v. Basrurkar, (Shah, Ranaswami and Bhargava, JJ.) (Judgment by Bhargava, J.).

The Transfer of Property Act, 1882 Back

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