1994CLC1617 (PLP)

Their Lordships find themselves in agreement with the High Court in the view that Walsh v. Lcasdale (1882) 21 Ch. D. 9) has no application to this case, owing to the fact that the respondent's fight to enforce the verbal contract had been barred long before the commencement of the present suit. The respondent was not in a position to obtain specific performance of the agreement for a lease from the same Court and at the same time as the relief claimed in this action. Had he been so entitled, the position would be very different, for. then the respondent could claim to have executed in his favour by the appellant an instrument in writing which he could duly have registered, the appellant's ejectment action being stayed in the meantime. In these circumstances, the respondent would obtain complete protection, but consistently with and not in violation of the provisions of the Indian statute."

7. However, the rule laid down in Arfi's case (supra) was not followed in Pucha Lal v.‑Kunj Behari Lal (18 CWN 4451913), wherein the facts of the case were similar to the facts of the instant case. In this case the plea of part performance was recognised without any reference to the doctrine of limitation. Jankins, C.J. in his opinion observed:‑‑ "It is quite true that the question whether the defendants first party, were entitled to bring at suit for specific performance in vindication of their rights was not debated before the lower appellate Court, but there is no matter brought out to notice which can throw any serious doubt upon the defendants' right to complete their right by such a suit." In another case Muhammad Musa v. Aghore Kumar Ganguli (LR 42 IA. 1 S.C. ILR 42 Cal. 801), their Lordships of Judicial Committee applied the principle of part performance without any reference to the limitation. In this case the Judicial Committee relied upon the dictum laid down in Potter v. Potter (1 Ves Sen 437, 441(1750), wherein it was held that contract if admitted or carried in part into execution will be binding on the parties. The rules laid down in the above cases were followed in Khagendra Nath Chatterjee and others. Sonatan Guha and others (I.C. Vol. XXXI (1915) 987) and Garu and another v. T Muthuramareddi and others (AIR 1924 Mad. 271).

8. The examination of the case‑law on the subject will not be complete without mention of Nakul Chandra Polley v. Kalipada Ghosal, (AIR 1939 Calcutta 163). This is a direct authority on the question. In this case, it was argued that section 53‑A of the Act could not be applied in a case where the defendant had failed to institute a suit for specific performance of unregistered agreement of sale. After review of the case‑law, the Division Bench of Calcutta High Court laid down the rule that section 53‑A of the Act was added in the Transfer of Property Act by means of Transfer of Property (Amendment) Act, 1923 and thereafter a person who is in possession of immovable property under unregistered agreement of sale and has done some act to perform his part of agreement, he is entitled to defend his possession as a passive equity as a right and plea of limitation was unavailable to such defence. The rule laid down in Nakul Chandra Polley's case (AIR 1939 Calcutta 163) was followed in Abdul Ghani Khan v. Dino Bandhu Adhikari and another (PLD 1963 Dacca 777).

9. Last but least is the judgment of Supreme Court in Mst. Akhtar Begum v. Mian Aziz and others (1985 SCMR 1617) which needs mention. In this case Wasiq Billa Abbasi was owner of 36 squares in Village Taller, Tehsil Hasilpur, District Bahawalpur jointly with his brothers. Abdul Aziz plaintiff- respondent was lessee of the land under him and under the contract of lease, he was to hold it as such till 1965. On 8‑9‑1962 Wasiq Billa entered into a contract for sale of square of land and executed agreement in favour of Abdul Aziz. The land being unpartitioned, the particulars of land were not given in the agreement of sale. The two squares out of 36 squares were sold for a sum of Rs.20,000 and vendor admitted the receipt of Rs.10,000 towards its price. On 6‑3‑1963 the seller approached the Patwari, specified with particularity the land sold and admitted the receipt of entire price and prayed that mutation be entered. The Patwari accordingly recorded a report in Roznamcha, obtained thumb impression of the seller on it and entered mutation in the Register. On 5‑7‑1963 when the mutation was to be attested by the Revenue Officer, the seller appeared, repudiated the sale as a result the mutation was cancelled. On 25‑7‑1963, the seller sold the same land to Mst. Akhtar Begum‑appellant. Abdul Aziz instituted a suit for seeking declaration to the effect that he had become owner of the land having purchased it from Wasiq Billa prior to sale in favour of the appellant and having paid the entire price. The suit was resisted. The appellant contended that there was no agreement to sell in favour of the plaintiff; that the sale was inchoate; that she was a bona fide purchaser. On the pleadings of the parties, the trial Court framed as many as 11 issues. The learned Senior Civil Judge held that the agreement to sell dated 8‑9‑1962 was void for its vagueness; that the agreement dated 6‑3‑1963 as incorporated in the report of Patwari was fresh agreement and valid; that the payment of price was not proved; that the transfer of possession had not taken place. On these conclusions, the learned trial Court found that the appellant was the owner of the land. On these conclusions, the suit filed by Abdul Aziz was dismissed. On appeal, the learned Additional District Judge did not agree with the conclusions of the learned original Court and accepted the appeal. The suit was decreed with grant of requested reliefs. The second appeal by the appellant was dismissed by High Court. Feeling aggrieved, the appellant preferred appeal which was partly allowed. The plaintiff/respondent was declared to be in possession of the suit property under an agreement of sale, Exh.P‑

34. His Lordship Mr. Justice Shafi‑ur‑Rehman delivering opinion on behalf of the Bench, held as under:‑‑ "No other Court dealing with the case attended specifically to this question, viz., the validity and completeness of the writing Exh. P‑34 for the purposes of section 53‑A of the Transfer of Property Act. In the context of the first two objections of the learned counsel for the appellant the requirements of section 53‑A relevant are (i) there should be a contract to transfer, (ii) from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The submission of the learned counsel are directed to establish that both these requirements remained unsatisfied. A contract which is incomplete, vague, incapable of identifying the subject‑matter of sale cannot, according to him, qualify as a contract at all. Even if it does, the terms necessary to constitute the transfer cannot be ascertained with reasonable certainty and hence the protection sought for must be denied. The argument Exh. P‑34 qualifies as a. contract of sale notwithstanding the latent ambiguity of language to this limited. extent because the deficiency could be supplied under section 96 of the Evidence Act by extrinsic evidence. The question, how far and with what effect, the writing referred to in this section can be proved is to be decided by the procedural law, and not independently. The subsequent signed statement (Exh. P.1) of the owner supplied the requisite detail and served as an aid to the interpretation and application of document Exh. P‑34 without detracting from its effectiveness as a contract of sale." This appeal is allowed only to the extent of slight modification in relief. The plaintiff respondent is declared to be in possession of the suit property under an enforcible contract of sale in his favour and that defendants. Nos. 1 and 2 and persons claiming under them are restrained from interfering with his rights. In the circumstances of the case respondent No. 2 shall bear the costs of both the contesting parties throughout." From the above decision, it is clear that the Supreme Court accepted the plea of part performance taken by Abdul Aziz respondent/plaintiff without reference to the question of limitation.

10. The ratio deducible from the foregone discussion is as follows:‑‑ (i) The doctrine of part performance as developed by equity Courts in England was given statutory recognition by means of enacting section 53‑A of the Act by Amending Act, 1929. The doctrine thereon became applicable to whole of sub‑continent. (ii) The Principle of part performance being based upon the golden rules of fairness, justness and righteous dealing between the parties is applicable to even those areas of Punjab where the Transfer of Property Act has not been enforced, on the principle of equity, justness and conscience. (iii) In order to avail the plea under section 53‑A of the Transfer of Property Act a person had to show following factors namely:‑‑ (a) There is contract in writing signed by the transferor in respect of an immovable property; (b) From the writing, transfer can be ascertained with reasonable certainty; (c) In part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and (d) The transferee has performed or is willing to perform his part of the contract. (iv) The plea of part performance is available to the plaintiff as well as defendant as a shield to protect and maintain possession against the transferor or any person claiming under him. (v) That the doctrine of part performance as embodied in section 53‑A of the Act is neither subject to the limitation as prescribed under Article 113 in schedule to Limitation Act nor is circumscribed by section 54 of take Act or by section 49 of the Registration Act.

11. Applying these principles to the fact of this case, it is clear to me that the petitioner did obtain possession of the house under agreement of sale, paid Rs.12,000 to the sellers and was willing to pay the remaining price to the sellers. It may be noted that the learned counsel for the petitioner stated emphatically before the Court that he was even prepared to pay the remaining price to the sellers today. It were the sellers who declined' to receive the payment. On these facts, I have no doubt left in my mind that the petitioner was and is clearly entitled to protect and maintain his possession of house which he had obtained under agreement of sale by performing an act of part C performance This being the legal position, these revision petitions are bound to succeed. The decisions of the two Courts below are found to be in complete defiance of section 53‑A of the Transfer of Property Act.

12. In the light of foregoing discussion, these revision petitions are accepted, the judgment and decree passed by the two Courts below are hereby set aside and the suit fled by the seller/respondent for the recovery of possession is hereby dismissed. The suit for declaration filed by the petitioner is decreed with requested reliefs. H.B.T/A‑545/L Revision accepted.