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Transfer of Property Act, 1882-Section 53-A-Agreement to sell-Part performance of contract-Claim for-Written agreement to sell-Necessity of- Letters written by transferor agreeing to sell his part of the share in property-Letters not spelling out the terms of the agreement or time frame within which the sale deed was to be executed-High Court holding that the letters constitute a valid agreement to sell, allowing the claim for part- performance of contract-Validity of-Held, letters written by transferor could not be construed to be an agreement to sell within the meaning of Section 53-A of the Act-Order of the High Court set aside. The issue involved in the present appeal is whether a proposed vendee could protect his possession of an immoveable property on the plea of part performance under Section 53-A of the Transfer of Property Act, 1882 on the basis of an oral agreement. Plaintiff-appellants were owners of the property in dispute. They had permitted the predecessor-in-interest of respondent to occupy the suit property as a licensee. When respondent failed to vacate the property, the appellants filed a suit for possession of the property and for recovery of mesne profit. Respondent resisted the suit contending that appellant No. 1 wrote several letters agreeing to sell his half share of property had also received certain sale consideration. Thus, they claimed protection under section 53-A of T.P. Act and also alternatively claimed title by adverse possession. Trial Court held that the respondents have perfected the title to the property in dispute by way of adverse possession to the extent of half share of appellant No. 1 and dismissed the suit to that extent. However, on appeal the First Appellate Court decreed the suit of appellants for possession of entire property in dispute alongwith mesne profits. On second appeal, High Court held that respondents were entitled to protect the possession under section 53-A of the Act. Hence the present appeal by plaintiff. =Allowing the appeal, the Court HELD : 1.1. Section 53-A of the Transfer of Property Act, 1882 provides that where any person contracts to transfer for consideration any immoveable property, in 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, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues any possession in part performance of the contract, and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract then he is entitled to protect his possession in respect of the property of which he was put in possession in part performance of the agreement to sell. [707-E-F] Nathulal v. Phool Chand, [1969] 3 SCC 120 and Sardar Govindrao Mahadik v. Devi Sahai, [1982] 1 SCC 237, relied on. Mohan Lal (deceased) through his LRs. Kachru and Ors. v. Mirza Abdul Gaffar and Anr., [1996] 1 SCC 639 and Roop Singh v. Ram Singh, [2000] 3 SCC 708, referred to. 1.2. In the instant case, the letters written by appellant No. 1 cannot be termed to be agreement to sell within the meaning of Section 53-A spelling out the terms of the agreement for sale. At the most it is an admission of an oral agreement to sell and not a written agreement. Statutorily the emphasis is not on written agreement only. In addition the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainty from the written document. In the instant case, there was no meeting of minds. Admission made by appellant No. 1 of an oral agreement to sell does not spell out other essential terms of agreement to sell such as time frame within which the Sale Deed was to be executed and as to who would pay the registration charges etc. Written agreement has to precede the putting of the proposed vendee in possession of the property. In the instant case, the predecessor in interest of the respondents was never put in possession of the property pursuant to the written agreement arrived at between the parties. Thus, High Court fell in error in coming to the conclusion that the letters written by appellant No. 1 constituted an agreement to sell. The suit filed by plaintiff/appellants for possession of property and mesne profit is decreed. [709-E-H; 710-A-B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5920 of

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CASE NO.:
Appeal (civil) 5920 of 1998

PETITIONER:
MOOL CHAND BAKHRU & ANR.

 Vs.

RESPONDENT:
ROHAN & OTHERS

DATE OF JUDGMENT: 29/01/2002

BENCH:
V.N. Khare & Ashok Bhan

JUDGMENT:

Bhan, J.

 Point for consideration in this appeal is as to whether:

"A person (claiming to be a proposed
vendee) can protect his possession of an
immovable property on the plea of part
performance under Section 53-A of the Transfer of
Property Act on the basis of an oral agreement, the
terms of which have not been reduced in writing."

The relevant facts are :

1. Plaintiffs/appellants (hereinafter referred to as "the appellants")
Mool Chand and Leela Ram were the owners of the property known
as 'Dayal Villa' situated in Khasra Nos. 1195, 1196, 1198, 1200, 1201
and 1202 measuring 613 sq. meters in Solan Town, specifically
described in the plaint (hereinafter referred to "the property in
dispute"). Leela Ram above-named died during the pendency of the
suit before the trial court and his name was substituted by his widow
and two sons as plaintiffs. Widow died during the pendency of this
appeal. The title of Leela Ram is represented through his two sons as
the appellants.

2. The appellants filed the suit with the averments that Late
Bhagwan Dass (predecessor in interest of the defendants) was their
real uncle (father's brother). Because of the partition of the country in
1947 Bhagwan Dass who was living in Sindh Province migrated to
India. The appellants permitted him to occupy their house at Solan as
a licensee in 1948-49. In spite of repeated requests to vacate the
property Bhagwan Dass failed to handover the possession of the
property to the appellants. In 1974 Bhagwan Dass agreed to vacate
the property after six months. On his failure to vacate the property he
was required to pay damages by way of use and occupation at the rate
of Rs. 20/- per day till the date of actual vacation. As Bhagwan Dass
failed to vacate the property and to pay the damages as agreed upon, a
suit was filed for possession of the property as well as for recovery of
Rs. 43,200/- as mesne profits for the use and occupation of the
property at the rate of Rs. 1200/- per month.

3. The defendants/respondents (hereinafter referred as 'the
respondents') while resisting the suit averred that the appellants
agreed to sell the property in dispute to Bhagwan Das in the year 1968
for a consideration of Rs. 30,000/- out of which Rs. 10,000/- was paid
to the appellants. A sum of Rs. 1,100/- was kept by Bhagwan Dass
with Kishni, mother of the appellants, at their instance. A further sum
of Rs. 10,000/- was deposited with one Gulab Singh, brother of the
appellants, in the year 1969, as part of the sale consideration.
Bhagwan Dass continued to occupy the property till 1968 as a
permissive user and thereafter in part performance of the agreement to
sell. That the property at the time of lease was in a dilapidated
condition. Suitable improvements in the property by reconstructing
the walls, floors, roof of Balcony and by providing flush latrines at a
cost of Rs. 35,000/- were carried out. No objection was raised by the
appellants at any time to the improvements carried out by the
respondents. It was further pleaded that they have always been ready
and willing to perform their part of the agreement to sell and pay the
remaining amount of the sale consideration. Alternatively, it was
pleaded that the respondents acquired title to the property in dispute
by way of adverse possession as they were continuing in possession
since 1968. The claim of the appellants for mesne profits was denied.

4. The appellants in their rejoinder pleaded that plaintiff No. 1
Mool Chand in the year 1968 had agreed to sell his half share in the
property in dispute to Bhagwan Dass on the letter's representation that
the market value of the entire property in dispute at that time was Rs.
30,000/- The value of half share was Rs. 15,000/-. It was admitted
that Mool Chand had received Rs. 10,000/- as part of the sale
consideration. It was, however, pleaded that since Bhagwan Dass
failed to pay the balance sale consideration, the deal fell through and
the amount received as part of the sale consideration, was forfeited
and appropriated towards use and occupation charges. It was averred
that Leela Ram, the other plaintiff, had no intention to sell his half
share in the property in dispute nor any agreement to sell was arrived
at between him and Bhagwan Dass. The claim of adverse possession
set up by the respondents was controverted. The so-called
improvements made by the respondents were also denied.

5. The trial court dismissed the suit of Mool Chand to the extent
of his half share. The suit of Leela Ram for possession of his half
share and the claim for mesne profits was decreed. He was awarded
mesne profit at the rate of Rs. 20/- per day amounting to Rs. 21,600/-.
The trial court came to the conclusion that Mool Chand alone had
entered into an agreement to sell his half share in the property in
dispute in favour of Bhagwan Dass for a consideration of Rs. 15,000/-
out of which a sum of Rs. 10,000/- was received by Mool Chand. It
was held that Bhagwan Dass was placed in possession of half share of
the property in dispute by Mool Chand as part performance of the
agreement to sell. Benefit of Section 53-A of the Transfer of
Property Act, 1982 (for short 'the Act') was however denied on the
ground that the respondents had failed to prove that they were and are
ready and willing to perform their part of the agreement. The
respondents were found to have perfected their title to the property in
dispute by way of adverse possession to the extent of half share of the
Mool Chand. So far as the share of Leela Ram is concerned the
respondents were held to be in permissive possession as a licensee.

6. Both the parties being aggrieved by the judgment and decree of
the trial court preferred two separate appeals before the District Judge.
The appeal filed by the respondents was dismissed. The finding
recorded by the Trial Court in so far as the same was in respect of the
share of Leela Ram was confirmed. The appeal preferred by the
appellants was allowed and the finding of the trial court that the
respondents had perfected their title to the extent of half share by way
of adverse possession was set aside. Consequently, the suit of the
appellants for possession of the entire property in dispute was decreed
along with mesne profits to the tune of Rs. 43,200/- at the rate of Rs.
1200/- per month.

7. The respondents filed the second appeal before the High Court.
The case projected before the High Court was that as the respondents
had been put in possession of the property in part performance of the
agreement to sell in the year 1968 on payment of a part of the sale
consideration and therefore they were entitled to protect their
possession under Section 53-A of the act. Alternatively, their case
was that they had become the owners of the property by way of
adverse possession as they were in continuous possession of the same
since 1968.

8. The High Court relying upon a judgment of this Court in
Mohan Lal (deceased) through his LRs. Kachru & Ors. Vs. Mirza
Abdul Gaffar & Anr., 1996 (1) SCC 639, came to the conclusion that
since the respondents were claiming to be in possession of the
property in part performance of the agreement to sell, the plea of
acquisition of title by adverse possession was not available to them.
Learned counsel appearing for the respondents did not assail this
finding of the High Court. The view expressed in Mohan Lal
(deceased) through his LRs. Kachru & Ors. case (supra) has been
reiterated by this Court in Roop Singh Vs. Ram Singh, 2000 (3) SCC
708. It has been held in the latter judgment that the pleas of adverse
possession and retaining the possession by operation of Section 53-A
of the Act are inconsistent with each other. Such a plea is not
available to a proposed vendee.

9. Relying upon few letters written by Mool Chand admitting that
he had agreed to sell the property, the appeal filed by the respondents
to the extent of Mool Chand's share was allowed. It was held that the
respondents could protect their possession under Section 53-A of the
Act. The appeal qua the share of Leela Ram's half share was
dismissed. It was held that respondents continued to be in joint
possession of the property to the extent of half share but he was not
entitled to actual possession till partition of the property in dispute.
Since the possession was joint Leela Ram was not entitled to the
mesne profits as well.

10. Section 53-A provides 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, in part performance of the contract, taken possession of
the property or 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 contact, and the
transferee has performed or is willing to perform his part of the
contract then he is entitled to protect his possession in respect of the
property of which he was put in possession in part performance of the
agreement to sell.

11. This Court in Nathulal Vs. Phool Chand, 1969 (3) SCC 120,
while interpreting Section 53-A culled out the following conditions to
be fulfilled for making out the defence of part performance to an
action in ejectment by the owner, as under:

"(1) that the transferor has contracted 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;

(2) that the transferee has, in part performance
of the contract, taken possession of the
property or any part thereof, or the
transferee, being already in possession
continues in possession in part performance
of the contract;
(3) that the transferee has done some act in
furtherance of the contract; and
(4) that the transferee has performed or is
willing to perform his part of the contract."

After culling out the aforesaid conditions, it was held:

"If these conditions are fulfilled then
notwithstanding that the contract, though required
to be registered, has not been registered, or, where
there is an instrument of transfer, that the transfer
has not been completed in the manner prescribed
therefor by the law for the time being in force, the
transferor or any person claiming under him is
debarred from enforcing against the transferee any
right in respect of the property of which the
transferee has taken or continued in possession,
other than a right expressly provided by the terms
of the contract."

12. In Sardar Govindrao Mahadik Vs. Devi Sahai, 1982 (1) SCC
237, it was reiterated that to qualify for the protection of the doctrine
of part performance it must be shown that there is an agreement to
transfer of immovable property for consideration 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.

13. In view of the authoritative view expressed by this Court the
learned counsel appearing for the respondents on being called upon
did not dispute the proposition that a proposed vendee could not
protect his possession of an immovable property on the basis of an
oral agreement. He conceded that written agreement was sine qua
non for the applicability of the equitable doctrine of part performance
enshrined in Section 53-A of the Act.

14. Learned counsel appearing for the respondents by referring to
the letters written by Mool Chand dated 14th January, 1969 - Ex. P12,
24th January, 1969 Ex. P11, 5th February, 1969 - Ex. P10, 18th
February, 1969 Ex. P9, 8th March, 1969 Ex. P8, 28th March, 1969
 Ex.P7 and 14th May, 1969 Ex. P5 submitted that Mool Chand
having admitted that he had agreed to sell his half share of the
property, the letters written by him be deemed to be the written
agreement to sell in terms of Section 53A of the Act. We have
perused these letters and on their perusal find that Mool Chand in
these letters has admitted that he had agreed to sell his half share of
the property for a sum of Rs. 15,000/- out of which Rs. 10,000/- was
received by him. In each of these letters Mool Chand has called upon
Bhagwan Dass to pay the balance amount of Rs. 5,000/- as he was in
urgent need of the money. Bhagwan Dass failed to do so. Ultimately,
on 21st May, 1970 Mool Chand wrote a letter, Ex. P3, repudiating the
so called agreement to sell as Bhagwan Dass had failed to carry out
his part of the agreement. It was further stated in this letter that the
amount received by him as advance was appropriated by him towards
the use and occupation of the property at the rate of Rs. 20/- per day
from 1st May, 1970 onwards. He categorically stated that he was no
longer interested in selling the property. From the admission made by
Mool Chand that he had agreed to sell his half share in these letters,
learned counsel for the respondents argued that the letters written by
him be taken to be the agreement to sell in which the terms of the
agreement have been spelt out. We do not find any substance in this
submission. The letters written by Mool Chand cannot be termed as
an agreement to sell, the terms of which have been reduced into
writing. At the most it is an admission of an oral agreement to sell and
not a written agreement. Statutorily the emphasis is not on a written
agreement only. In addition the emphasis is on the terms of the
agreement as well which can be ascertained with reasonable certanity
from the written document. There was no meeting of minds.
Admission made by Mool Chand of an oral agreement to sell does
not spell out the other essential terms of the agreement to sell such as
the time frame within which the sale deed was to be executed and as
to who would pay the registration charges etc. The letters written by
Mool Chand cannot be taken to be an agreement to sell within the
meaning of Section 53-A spelling out the terms of an agreement for
sale. In our view, the High Court fell in error in coming to the
conclusion that the letters written by Mool Chand, referred to above,
constituted an agreement to sell the terms of which have been reduced
in writing. Terms necessary to constitute the transfer with reasonable
certainty could not be ascertained from the letters written by Mool
Chand to his uncle. At the most it is an acknowledgment that there
was an oral agreement to sell but the same could not be construed to
be a written agreement to sell the terms of which have been reduced
into writing. Written agreement has to precede the putting of the
proposed vendee in possession of the property. Bhagwan Dass was
never put in possession in pursuance of the property to the written
agreement arrived at between the parties.

15. For the reasons stated above, the appeal is accepted. Judgment
of the High Court is set aside and the suit filed by the
plaintiff/appellants for possession and mesne profits of their property
is decreed.

16. Respondents have deposited a sum of Rs. 1,47,000/- towards
the mesne profits, which are lying deposited in the High Court at
Shimla. The mesne profits are restricted to the amount already
deposited by the respondents. Out of this amount a sum of Rs.
55,000/- is stated to have been withdrawn by Mool Chand. The
balance amount lying deposited in the High Court be disbursed to the
appellants along with interest, if any. There will be no orders as to
costs.

J.
( V.N. Khare )

.J.
( Ashok Bhan)January 29, 2002
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