Part performance
Part performance legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Section 56 of the Negotiable Instruments Act, 1881 ('Act, 1881'), specifically provides for an endorsement on a negotiable instrument with regards to part-payment and thereafter the instrument could be negotiated for the balance amount
If the drawer and the payee of the cheque adopt the procedure given in S.56 of the Act 1881, then it would be open to the payee of the cheque to present the cheque for payment of only the endorsed balance amount, due to him
Without adopting the procedure as provided in S.56 ibid, the cheque could not be presented for encashment and suit under O.XXXVII, Rr.1 & 2 of C.P.C. could not be filed, rather a suit for recovery of balance amount of cheque before a court of plenary jurisdiction has to be instituted
After receipt of part payment, appellant did not adopt the procedure as provided under S.56 of the Act, 1881, therefore, he was barred from presenting the cheque in question in the bank for its encashment and instituting suit under O.XXXVII, Rr.1 & 2 of C.P.C.
Proper forum in this regard was Court of plenary jurisdiction i.e. Civil Court for getting his grievance redressed
Trial Court should have returned the plaint under O.VII, R.10, C.P.C. for its presentation before the court of competent jurisdiction, obviously, keeping in view barricade of limitation
Appeal was allowed accordingly.
Section 56 of the Negotiable Instruments Act, 1881 ('Act, 1881'), specifically provides for an endorsement on a negotiable instrument with regards to part-payment and thereafter the instrument could be negotiated for the balance amount
If the drawer and the payee of the cheque adopt the procedure given in S.56 of the Act 1881, then it would be open to the payee of the cheque to present the cheque for payment of only the endorsed balance amount, due to him
Without adopting the procedure as provided in S.56 ibid, the cheque could not be presented for encashment and suit under O.XXXVII, Rr.1 & 2 of C.P.C. could not be filed, rather a suit for recovery of balance amount of cheque before a court of plenary jurisdiction has to be instituted
After receipt of part payment, appellant did not adopt the procedure as provided under S.56 of the Act, 1881, therefore, he was barred from presenting the cheque in question in the bank for its encashment and instituting suit under O.XXXVII, Rr.1 & 2 of C.P.C.
Proper forum in this regard was Court of plenary jurisdiction i.e. Civil Court for getting his grievance redressed
Trial Court should have returned the plaint under O.VII, R.10, C.P.C. for its presentation before the court of competent jurisdiction, obviously, keeping in view barricade of limitation
Appeal was allowed accordingly.
Claim of the plaintiff was that he and two defendants/ vendees entered into agreement with the defendants (four in number) being the owners-in-possession of property out of which almost fifth of the suit-property was purchased by him (plaintiff), thus he sought the defendants/owners to perform the sale agreement to the extent of part/portion of suit-property for which he entered into the agreement
Suit was dismissed by the Civil Court, which judgment and decree was maintained by the Appellate Court
Contention of the petitioner/ plaintiff was that the Courts below fell into error while reaching to the conclusion that the agreement between the parties was not severable and the same could not be specifically enforced
Plea of the respondents ( defendants/owners)was that they had sold the suit- property to the petitioner as well as two others (defendants/respondents) as single unit and the same could not be enforced by the petitioner alone as the suit-property, being inherited, fell in common Khatas/Khasras while the sale agreement did not contain any stipulation, thus the case clearly attracted the bar under S. 17 of the Act, 1877
Validity
Pivotal question was as to whether or not the sale agreement could have been partially enforced against respondents (defendants / owners) and in favour of the petitioner/plaintiff
Section 17 of the Act, 1877, prohibited decree of performance of part of the contract, unless the case fell under Ss. 14 to 16 of Act 1877
Splitting up of the contract was not permissible and the contracts were to be performed in their entirety
Admittedly, Ss. 14 & 15 of the Act, 1877 had hardly any relevance with the present case
Petitioner had primarily relied upon S. 16 of the Act, 1877 to bring his case in the exception to S. 17 of the Act, 1877, however, the same provided that to direct performance of part of the contract, the said part had to "stand on a separate and independent footing from another part"
Though the respective shares of the purchasers were specified from whole lot (as 5058/6230 and 1172/6230) but there was no mention in the sale agreement as to which share out of the joint property inherited by the respondents/owners was to be transferred to any specific purchaser
No part of the sale agreement was "standing on separate and independent footing" or stood in isolation from the other part
There was no stipulation in the sale agreement as to khasra or Khata number(s) from which about one-fifth share (58-Kanals and 12-Marlas) out of the joint shares and / or the whole property were to be given to the petitioner, if such situation arose
Even the petitioner while appearing as a witness admitted of not having any bargain or mutual understanding between the parties regarding transfer of property from any specific Khata or extent or piece of land to which the two set of purchasers were entitled to transfer in case of independent/separate performance
Similarly, one of the defendants / owners being witness (lady), during cross-examination stood by her pleadings and statements given in the examination-in-chief, and no deal or arrangement to sell the suit property in the parts, could come out during her cross-examination
Perusal of the sale agreement in the light of evidence further revealed that there was no intention of the parties at the time of execution of the sale agreement as to the separate sale or passing on the title of the property in parts
Only severable/separable element in the contract was that when the entire suit property were to be transferred, the same would be passed on to the petitioner to the extent of his share in the suit-property and respondents (defendants /other vendees) would have been entitled to their share in the joint whole, upon complete payment of the entire sale consideration
Record (documents duly exhibited by the defendants/owners) also revealed that one respondent/vendee (out of other set of purchasers) filed first suit and then again filed suit after about five years; and in response to each suit, respondents /owners offered said respondent/vendee to pay the entire amount against the transfer of suit property but he failed to accept the offer(s) and both the suits were dismissed
Said fate of previous suits lead to two clear inferences; (i) respondents/owners remained willing to perform their part of obligation and they were not defaulters of the sale agreement and, (ii) both set of purchasers were not in the position to purchase the whole property, therefore, they decided to contribute to purchase the whole property in terms of respective shares, hence, there was no understanding on either side to purchase the property in piecemeal or independent of each other
Both the Courts below had used their discretion in a judicious manner and as per the established principle of law and equity
Right of specific execution of contract was not absolute and its enforcement rested on the discretion of the Court
No mistake, infirmity or illegality had been noticed in the impugned orders, judgments and decrees passed by both the Courts below
Revision filed by the plaintiff was dismissed, in circumstances.
Section 54 of the Transfer of Property Act, 1882, provides that a contract for sale of immovable property is a contract that a sale of such property shall take place
Word "convey" in S. 5 of the Transfer of Property Act, 1882 is used in the wider sense of ownership
Ownership passes from one person to another only after execution of conveyance
Protection provided under S. 53-A of the Transfer of Property Act, 1882 to proposed transfer is a shield only against the transferor in respect of cases falling under S.53-A of the Transfer of Property Act, 1882
Said section has nothing to do with ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee.
Section 56 of Negotiable Instruments Act, 1881 specifically provided for an endorsement on a negotiable instrument with regard to part-payment and the instrument could thereafter be negotiated for the balance amount
If the drawer and payee of cheque adopt the procedure given in S. 56 of the Negotiable Instruments Act, 1881 then it would be open to the payee of the cheque to present the cheque for the payment of only that much endorsed balance amount which was due to him
After the receipt of admitted part-payment from the amount of cheque before filing the suit, the payee could neither present the cheque for encashment without adopting procedure under S.56 of the Negotiable Instruments Act, 1881, nor could file suit for recovery of cheque amount while invoking special jurisdiction under O.XXXVII, C.P.C., in new circumstances which is a subsequent agreement rather would file a suit for recovery of balance amount of cheque before an ordinary civil court of plenary jurisdiction
Order XXXVII, C.P.C. does not restrict person(s)/plaintiff(s) from filing an ordinary suit for recovery of cheque amount before an ordinary civil court of plenary jurisdiction rather provided discretion to either institute a suit by invoking special jurisdiction under O.XXXVII, C.P.C. or to file the same under ordinary procedure before ordinary civil court of plenary jurisdiction and there existed no legal compulsion to restrict the choice of person(s)/plaintiff(s).
Mere agreement to sell does not create any title and it cannot place any restriction on the rights of owner unless it is proved
If person having agreement to sell proves its execution then provision of S.53-A of Transfer of Property Act, 1882, protects his rights, otherwise mere on the basis of agreement to sell right to enjoy property by owner cannot be curtaild.
Section 53A of the Transfer of Property Act, 1882, will come into play for protection of the buyer only when the buyer had performed his commitments substantially and was willing to perform the remaining part of his promise, if any
No other way existed in which the buyer could be considered to have committed breach or there was indication of the buyer breaching his promises required to be met as per contract
Benefit of the part performance doctrine was not available to a person who sought to acquire a valid title to the property dealt with under a transaction which remained inchoate.
Party can take benefit of S.53-A of Transfer of Property Act, 1882, where the contract is in writing, signed by or on behalf of the transferor, where transferee had possession of immovable property covered by the contract, where the transferee had done some act in furtherance of the contract, where the transferee had either performed his part of contract or willing to perform his part of the contract
All the said conditions are sine qua non and had to be satisfied before a party could take advantage of S.53-A of Transfer of Property Act, 1882, otherwise not.
Plaintiff entered into agreement to sell with defendant, who, after making part payment received the possession and constructed building over the same
Plaintiff sought cancellation of agreement on the plea that defendant failed to make balance payments in time
Defendant also filed suit for specific performance of agreement to sell
Validity
Held, it was obligation of plaintiff as vendor to obtain completion certificate and B-Lease from Defence Housing Authority
Plaintiff neither obtained completion certificate nor B-Lease from concerned authorities and as such failed to make out marketable title of property in question
Conveyance deed could not be registered unless B-Lease, which was a document by Pakistan Defence Officers Housing Authority was to grant 99 years' lease in favour of allottees
Defendant was put into possession of suit property upon making part sale consideration
Defendant had acquired certain rights as after having made investment, defendant put suit property in habitable condition
Possession with defendant was protected in terms of S.53-A of Transfer of Property Act, 1882
Defendant was not at fault in completing transaction but he had started residing in suit property without making balance sale consideration either to plaintiff or depositing the same in Court, therefore, he was liable to pay rentals of each month
Suit was dismissed accordingly.
Plaintiff filed suit for declaration, specific performance and injunction claiming that defendants executed agreement to sell in his favour to sell suit property and thereunder not only received possession of suit property but also raised construction over the same, and defendant refused to enter mutation in name of plaintiff
Trial court decreed the suit, but appellate court dismissed the same
Validity
Contract had been duly executed and signed by predecessor of defendants, and the same was produced and exhibited in evidence without any objection and remained undisputed
Possession had been delivered to plaintiff as part performance of contract, which was an admitted fact
Plaintiff had not only remained in possession of suit property but also raised construction over the same to the notice of defendants
Plaintiff was bona fide purchaser and had been in possession against valid consideration right from the day of transaction
Admitted characteristics of contract attracted provisions of S.53-A of Transfer of Property Act, 1882, which was illegally withheld by appellate court
Appellate court while dealing with objection as to non- registration of document was ignorant of provisions of S.53-A of Transfer of Property Act, 1882 and remained oblivious of proviso (1) of S. 50 of Registration Act, 1908, which provided that person in possession of property under unregistered documents prior in date, would be entitled to rights under S.53-A of Transfer of Property Act, 1882
Trial court had neither impounded the instrument under Ss.33 & 35 of Stamp Act, 1899 nor refused to admit the same in evidence
No objection was raised during admission of contract in evidence
Once contract had been admitted in evidence, legality and validity of such admission with reference to provisions of Stamp Act, 1899 was beyond competence of appellate court
Appellate court failed to visualize S.36 of Stamp Act, 1899 which prima facie barred, restrained and prohibited appellate court to question admission of instrument even if the same had been admitted erroneously
Appellate court had no option but to endorse the admission of contract
Document, either understamped or unstamped once admitted in evidence, appellate court was not supposed to entertain any controversy except to the extent as permitted under S.61 of Stamp Act, 1899
Since trial court had not passed any specific order regarding sufficiency or otherwise of stamp of instrument, the appellate court could not pass any order under S.61 of Stamp Act, 1899
Suit to sustain under S.42 of Specific Relief Act, 1877 and remain competent and maintainable was required to reveal and reflect claim of right to or interest in subject matter, and denial or interest to deny the same by defendant
Present suit was competent and maintainable
Findings of appellate court regarding maintainability of suit were absolutely unwarranted and unjustified
Plaintiff's suit was not hit by provision of O.VII, R.11, C.P.C.
To attract penal provisions of O.VII, R.11, C.P.C., contents of plaint must have been accepted as the same were and thereafter it was to be ascertained as to whether plaint was hit by any provision of clauses of O.VII, R.11, C.P.C.
If suit was liable to be rejected in view of any clause of O.VII, R.11, C.P.C., then appellate court should have rejected the same without discussing merits of the case, which course was not adopted by appellate court
No counter-claim for possession and cancellation of agreement was filed by defendants
Evidence produced by plaintiff was consistent, coherent and straightforward
Relief on undisputed claims could be refused
Attorney of defendants had admitted plaintiff's right to mutation regarding suit property, which was sufficient for a decree in favour of plaintiff
High Court by setting aside judgment and decree of appellate court, upheld decree of trial court
Revision petition was allowed in circumstances.
Allotment of State land to five defendants-vendees through different entitlement certificates issued to them separately on different occasions
Sale of suit land by defendants in favour of plaintiff through joint sale agreement
Specific performance of independent part of such joint agreement
Scope
When contract was severable, then court might grant specific performance for such part, which ought to be performed
Part performance in present case would be permissible, even though plaintiff's agreement with each of defendant-vendee being independent
Illustration.
Tenant resisted ejectment proceedings on the plea that he had filed suit for specific performance of agreement to sell and possession of premises was with him as part performance of the agreement
Validity
Tenant could not be protected from ejectment merely by asserting agreement to sell in his favour or by filing suit for specific performance of agreement to sell, unless sale-deed was executed in his favour and agreement to sell had been enforced
Filing of civil suit could not vitiate title of landlord unless the same was finally decided
Only those cases could be left to be decided by civil court, where intricate and complicated questions regarding title of immovable property were involved
Neither there was any dispute regarding ownership of landlord nor there was any intricate or complicated question involved about title of leased premises
Tenant had himself admitted that landlord was owner of the premises and he agreed to sell the same to him, there was no need to leave the matter to be decided by civil court
Tenant could not protect his possession over leased house by invoking provisions of S.53-A of Transfer of Property Act, 1882
Tenant failed to point out any illegality or material irregularity or legal or factual infirmity in eviction order passed by Rent Controller
Appeal was dismissed in circumstances.
Party could take benefit of S. 53-A of Transfer of Property Act, 1882, where the contract was in writing, signed by or on behalf of the transferor; where the transferee had possession of the immovable property covered by the contract; where the transferee had done some act in furtherance of the contract, and where the transferee had either performed his part of the contract or was willing to perform his part of the contract
All said conditions were sine qua non and had to be satisfied before a party could take advantage of S.53-A of Transfer of Property Act, 1882.
"Part performance", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124937118
Precedents & Case Laws citing "Part performance"
P L D 1989 Supreme Court 575
SHAMIM AKHTAR‑‑Appellant Versus MUHAMMAD RASHELD‑‑‑Respondent
Court:1994CLC1617
Sh. ABDUR RASHID ‑‑‑Petitioner Versus Sh. MUBARIK ALI, and others‑‑‑Respondents
Court: LahoreP L D 1986 Karachi 74
Khawaja AMMAR HUSSAIN‑Appellant Versus MUHAMMAD SHABBIRUDDIN KHAN‑Respondent
Court:P L D 1990 Supreme Court 382
Mst. AZEEMUN NISA BEGUM- -Appellant Versus ALI MUHAMMAD- -Respondent
Court: ---Ss. 53-A & 55 --- Specific Relief Act (I of 1877), S. 12 --- Sindh Rented Premises Ordinance (XVII of 1979), S.15 --- Agreement to sell --- Part performance -- Whether term of the contract with regard to possession being given on a caretaker basis, can be construed as possession taken in part performers of the contract to transfer immovable property as required by S.53-A --- If a vendee is already in possession of immovable property, it would be necessary that the vendor by appropriate acts and declarations converts the permissive .possession of such a vendee, whether as a tenant or otherwise, into possession as a vendee --- In case of a sale of immovable property which was already eased out and is in occupation of a tenant, the vendor would be required, to deliver symbolic possession to the buyer by asking the tenant to attorn to better. Hassan Abbas v. Shahid Bashir and others 1980 CLC 1442 overruled.1987 C L C 1149
Khawaja AMMAR HUSAIN‑‑Appellant Versus MUHAMMAD SHABBIRUDDIN KHAN‑‑Respondent
Court: Karachi2009 M L D 1484
MUHAMMAD QASIM — Appellant Versus ABDUL SATTAR and another — Respondents
Court: Lahore2017 C L C Note 93
MUHAMMAD MUMTAZ KHAN and 5 others — Appellants Versus MUHAMMAD AMIN — Respondent
Court: Supreme Court (AJ&K)P L D 1961 (W
INAYAT ULLAH AND OTHERS‑Defendants‑Appellants Versus SHAH MUHAMMAD AND OTHERS‑Defendants‑Respondents
Court: (a) Precedent‑Judgment applies in particular case in which given‑Interpretation of judgments‑Fazal Elahi and others v. The Crown P L D 1953 F C 35 ref..1976 S C M R 141
Haji JAN MUHAMMAD‑Petitioner Versus GHULAM GHAUS AND 2 OTHERS‑‑Respondents
Court: ‑‑‑ S. 15(4)‑‑Court‑fee payable on memo of appeal Particular ruling of High Court deciding it to be ad‑valorem under challenge before full Bench of High Court‑Counsel, held, could justifiably await decision of Full Bench before making good deficiency. Court fee.2010 S C M R 1116
MUHAMMAD ASHRAF KHAN — Petitioner Versus KHAN SIDDIQUE and others — Respondents
Court: Supreme Court of Pakistan