GIRIYAPPA & ANR.versusKAMALAMMA & ORS.

        [2024] 12 S.C.R. 2095 : 2024 INSC 1043

                      Giriyappa & Anr.
                             v.
                     Kamalamma & Ors.
     (Special Leave Petition (Civil) No. 30804 of 2024)
                        20 December 2024
        [J.B. Pardiwala and R. Mahadevan, JJ.]


                     Issue for Consideration
When can the protection u/s.53A of the Transfer of Property Act
1882 be granted in a suit filed for declaration of title and recovery
of possession.

                            Headnotes†
Transfer of Property Act 1882 – s.53A – Protection of s.53A
is available subject to certain prerequisites – s.53A is an
exception to the provisions which require a contract to be in
writing and registered and which bar proof of such contract by
any other evidence – Exception must be strictly construed –
High Court committed no error in impugned judgment and
order – SLP dismissed:
Held: Respondents (original plaintiffs) filed a suit for declaration of
title and recovery of possession – Petitioners (original defendants)
contended that the Respondents executed a sale agreement
dated 25-11-1968 in their favour and since then the Petitioners
came to be in possession of the land – Trial Court decreed the
suit in favour of the Respondents – Regular First Appeal filed by
Petitioners dismissed – High Court in impugned judgment and
order dismissed Second Appeal, observing that the protection
under Section 53A of the Transfer of Property Act 1882 (“TP
Act”) does not arise as defendant has failed to prove that plaintiff
has executed the Sale Agreement – No error committed by
High Court in impugned judgment and order – SLP dismissed.
[Paras 8, 9, 15]

Protection under Section 53A-Prerequisites of:
Held: 1. Protection under Section 53A is available subject to
prerequisites: (a) there is a contract in writing by the transferor
for transfer for consideration of any immovable property signed
by him or on his behalf, from which the terms necessary to
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     constitute the transfer can be ascertained with reasonable certainty;
     (b) 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; (c) The transferee has done some
     act in furtherance of the contract and has performed or is willing
     to perform his part of the contract. [Para 11]
     2. Effect of Section 53A is to relax the strict provisions of the
     TP Act and the Registration Act in favour of transferees and to
     allow the defence of part performance to be established – It is an
     exception to the provisions which require a contract to be in writing
     and registered and which bar proof of such contract by any other
     evidence – The exception must be strictly construed.[Paras 13, 14]

                                List of Acts
     Transfer of Property Act, 1882; Specific Relief Act, 1963.

                             List of Keywords
     Part performance; Section 53A of Transfer of Property Act; Suit
     for declaration; Recovery of possession; Sale agreement; Proof
     of execution of sale agreement; Strict construction.

                            Case Arising From
     EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
     Petition (Civil) No. 30804 of 2024
     From the Judgment and Order dated 23.08.2024 of the High Court
     of Karnataka at Bengaluru in RSA No. 1740 of 2008

                         Appearances for Parties
     Anand Sanjay M. Nuli, Sr. Adv., Akash Kukreja, Mrs. Samina S.,
     Abhishekh Singh (for M/s. Nuli & Nuli), Advs. for the Petitioners.

                Judgment / Order of the Supreme Court

                                    Order

1.   Delay condoned.
2.   This petition arises from the order passed by the High Court of
     Karnataka at Bengaluru dated 23-8-2024 in Regular Second Appeal
[2024] 12 S.C.R.                                                         2097

                 Giriyappa & Anr. v. Kamalamma & Ors.


     No.1740/2008, by which the appeal filed by the petitioners – herein
     (original defendants) came to be dismissed, thereby affirming the
     judgment and order passed by the First Appellate Court and also
     the judgment and decree passed by the Trial Court.
3.   We have heard Mr. Anand Sanjay M. Nuli, the learned Senior counsel
     appearing for the petitioners.
4.   It appears from the materials on record that the respondents – herein
     (original plaintiffs) instituted Original Suit No.364/1988 for declaration
     of title and recovery of possession.
5.   The suit came to be decreed in favour of the respondents (original
     plaintiffs). The Regular First Appeal filed by the petitioners – herein
     came to be dismissed and so also the Second Appeal by the High
     Court.
6.   In the Second Appeal, the High Court formulated the following
     substantial questions of law:-
          “(1) Whether the Courts below were justified in decreeing
          the suit of the plaintiff, despite the defendant seeking the
          protection under Section 53A of the Transfer of Property
          Act and also erred in not construing the law on this point
          as has been laid down by the Apex Court in the case
          reported in 2002 (3) SCC 676?”
7.   It is the case of the petitioners – herein that the respondents (original
     plaintiffs) may be the lawful owners of the suit scheduled property
     but they executed a sale agreement dated 25-11-1968 in their favour
     agreeing to sale 2 guntas of land out of survey No.24/9 for total
     consideration of Rs.850/- and since then the petitioners – herein
     came to be in possession and enjoyment of the same.
8.   The High Court while dismissing the Second Appeal observed in
     Paras 18 and 19 as under:-
          “18. Perusal of the Judgment of the trial Court in as
          much as the first Appellate Court indicate that on detailed
          examination of the oral and documentary evidence placed
          on record, they have come to a conclusion that the
          defendant has failed to prove that plaintiff has executed the
          Sale Agreement dated 25.11.1968 and put the defendant
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          in possession and enjoyment of the same. On the other
          hand, the plaintiff has proved that the shed in the suit
          scheduled property which is measuring one gunta was
          constructed by him during 1982-83 and during 1983-84,
          defendant illegally occupied the same. Before that he
          has also approached the Land Tribunal, Tumakuru in G
          LRM-67/83-84 claiming occupancy rights and it came to
          be dismissed on 15.05.1987 and it has attained finality.
          The findings returned by the trial Court as well as the
          first Appellate Court are consistent with the oral and
          documentary evidence placed on record and as such, this
          Court finds no perversity in the same.
          19. When the defendant has failed to prove that plaintiff has
          executed the Sale Agreement dated 25.11.1968 agreeing
          to sell 2 gunta out of survey No.24/9 and he came in
          possession and occupation of suit schedule property by
          virtue of the same, question of providing protection under
          Section 53A of the T.P. Act does not arise. Consequently,
          the ratio in the decision of the Hon’ble Supreme Court in
          the case of Shrimant Shamrao Suryavanshi and Another vs.
          Pralhad Bhairoba Suryavanshi (dead) by Lrs and Others2
          is not applicable to the case on hand and accordingly, the
          substantial question of law is answered in the negative.”
9.   We are of the view that no error not to speak of any error of law
     could be said to have been committed by the High Court in passing
     the impugned judgment and order.
10. Section 53-A of the TP Act and Section 16 of the Specific Relief Act,
    1964 (for short, hereinafter to be referred to as “the 1963 Act”), being
    of significant relevance are extracted hereunder:
          “53-A. Part-performance.—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,
[2024] 12 S.C.R.                                                          2099

                 Giriyappa & Anr. v. Kamalamma & Ors.



          being already in possession, continues in 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, notwithstanding that, 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
          shall be debarred from enforcing against the transferee
          and persons claiming under him 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:
          Provided that nothing in this section shall affect the rights
          of a transferee for consideration who has no notice of the
          contract or of the part-performance thereof.”
                                                 (emphasis supplied)

          “16. Personal bars to relief.—Specific performance of a
          contract cannot be enforced in favour of a person—
          (a) who would not be entitled to recover compensation
          for its breach; or
          (b) who has become incapable of performing, or violates
          any essential term of, the contract that on his part remains
          to be performed, or acts in fraud of the contract, or wilfully
          acts at variance with, or in subversion of, the relation
          intended to be established by the contract; or
          (c) who fails to aver and prove that he has performed or
          has always been ready and willing to perform the essential
          terms of the contract which are to be performed by him,
          other than terms the performance of which has been
          prevented or waived by the defendant.
          Explanation.—For the purposes of clause (c)—
          (i) where a contract involves the payment of money, it
          is not essential for the plaintiff to actually tender to the
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           defendant or to deposit in court any money except when
           so directed by the court;
           (ii) the plaintiff must aver performance of, or readiness
           and willingness to perform, the contract according to its
           true construction.”
                                                   (emphasis supplied)

11. From the aforesaid, it is evident that the protection of a prospective
    purchaser/transferee of his possession of the property involved, is
    available subject to the following prerequisites:
     (a)   There is a contract in writing by the transferor for transfer for
           consideration of any immovable property signed by him or on
           his behalf, from which the terms necessary to constitute the
           transfer can be ascertained with reasonable certainty;
     (b)   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;
     (c)   The transferee has done some act in furtherance of the contract
           and has performed or is willing to perform his part of the contract.
12. In terms of this provision, if the above preconditions stand complied
    with, the transferor or any person claiming under him shall be
    debarred from enforcing against the transferee and person(s)
    claiming under him, any right in respect of the property of which the
    transferee has taken or continue in possession, other than a right
    expressly provided by the terms of the contract, notwithstanding the
    fact, that the transfer, as contemplated, had not been completed
    in the manner prescribed therefor by the law for the time being in
    force. Noticeably, an exception to this restraint is carved out qua a
    transferee for consideration, who has no notice of the contract or of
    the part-performance thereof.
13. Section 53-A of the Transfer of Property Act was inserted partly to
    set at rest the conflict of views in this country, but principally for the
    protection of ignorant transferees who take possession or spend
    money in improvements relying on documents which are ineffective
[2024] 12 S.C.R.                                                         2101

                    Giriyappa & Anr. v. Kamalamma & Ors.


     as transfers or on contracts which cannot be proved for want of
     registration. The effect of this section, is to relax the strict provisions
     of the Transfer of Property Act and the Registration Act in favour
     of transferees in order to allow the defence of part performance to
     be established.
14. Section 53-A is an exception to the provisions which require a
    contract to be in writing and registered and which bar proof of such
    contract by any other evidence. Consequently, the exception must
    be strictly construed.
15. In view of the aforesaid, this Special Leave Petition fails and is
    hereby dismissed.
16. Pending applications, if any, also stand disposed of.

     Result of the case: Special Leave Petition dismissed.


     †
         Headnotes prepared by: Adeeba Mujahid, Hony. Associate Editor
                                 (Verified by: Shibani Ghosh, Adv.)