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CHINNARAJ versus SHEIK DAVOOD NACHIAR

High Court of Madras

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Chinnaraj v. Sheik Davood Nachiar - Second Appeal No.572 of 2002 Second Appeal No.573 of 2002 [2002] RD-TN 510 (23 July 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 23/07/2002

Coram

The Hon'ble Mr.Justice P.D.DINAKARAN

Second Appeal No.572 of 2002 Second Appeal No.573 of 2002 and

C.M.P.Nos.4761 and 4762 of 2002

Chinnaraj ..Appellant in both the appeals. -Vs-

1.Sheik Davood Nachiar

2.V.N.A.Noor Mohammed

3.V.N.A.Syed Mubarak

4.Mumtaj Begum

5.V.N.A.Surbudeen Ahammed ..Respondents in both the appeals PRAYER: Appeals against the judgments and decrees dated 19.6.2001, made in A.S.Nos.7 and 8 of 2001 on the file of the learned Principal District Judge, Nagapattinam, against the judgments and decrees dated 8 .11.2000, made in O.S.Nos.308 and 310 of 1999 on the file of the learned District Munsif, Nagapattinam, respectively.

For Appellant : Mr.N.Maninarayanan

For Respondents : Mr.M.Sundar-R1,2,4&5

Not ready in notice - R3

:J U D G M E N T



The appellant in the second appeals is the defendant in the suits, namely O.S.Nos.308 and 310 of 1999 on the file of the learned District Munsif, Nagapattinam, laid by the respondents/plaintiffs for recovery of possession of the suit properties and for consequential past and future profits.

2. According to the respondents/plaintiffs, they are the owners of the suit properties. Even though the appellant/defendant is the tenant in the suit properties for monthly rent, the respondents/ plaintiffs terminated the tenancy by 30.6.1999 and directed the appellant/ defendant to hand over vacant possession of the suit properties on 1.7.199 9. Since the appellant/defendant refused to do so, the respondents/ plaintiffs laid the said suits. 3.1. The appellant/defendant resisted the suits contending that he entered into two agreements of sale on 3.2.1996 with the respondents/ plaintiffs to purchase each of the suit properties for a sum of Rs.5,5 0,000/-, when he was already in possession of the suit properties as a tenant. After paying an advance of Rs.56,000/- towards each of the sale agreements even dated 3.2.1996, the appellant/defendant paid a sum of Rs.19,000/- towards each of the suit properties and thus paid Rs.75,000/- and agreed to pay the balance of Rs.4,75,000/- towards each of the suit properties within six months, on receipt of which, the respondents/plaintiffs agreed to execute and register the sale deeds in favour of the appellant/defendant. 3.2. The further case of the appellant/defendant is that he was ready and willing to pay the balance sale consideration towards each of the suit properties, but the respondents/plaintiffs were not prepared to execute and register the sale deeds in favour of the appellant/ defendant. 3.3. The appellant/defendant, inter alia, contended that even though he could not get the sale deed executed and registered in his favour, he is entitled to the benefit of Section 53A of the Transfer of Property Act, as he was already in possession of the suit properties on the date of sale agreements, namely, 3.2.1996.

4. Upon the above rival contentions, the learned District Munsif, Nagapattinam, framed the following relevant issues: (i) Whether the plaintiffs are entitled for the relief as prayed for? (ii) Whether the notice issued by the plaintiffs/ respondents terminating the tenancy is valid?

(iii) Whether the plaintiff is entitled for past and future profits?

5. To substantiate their contentions, the second plaintiff examined himself as P.W.1 and marked two documents as Exs.A1 and A2, of which Ex.A2 is the notice of termination dated 24.5.1999, terminating the tenancy by 30.6.1999 and requiring the appellant/defendant to hand over vacant possession of the suit properties on 1.7.1999, and the appellant/defendant examined himself as D.W.1 and marked two documents as Exs.B1 and B2, of which Ex.B1 dated 3.2.1996, is the sale agreement entered into between the appellant/defendant and the respondents/ plaintiffs towards each of the suit properties.

6. Appreciating both the oral and the documentary evidence referred to above, the learned District Munsif, Nagapattinam, by judgments and decrees dated 8.11.2000, held that the notice of termination dated 24.5.1999, marked as Ex.A.2, is valid in law and that the appellant/ defendant is not entitled to stake any claim based on Ex.B1 sale agreements even dated 3.2.1996 with respect to each of the suit properties, as he was not ready and willing to perform his part of obligation as per Ex.B1 and consequently, he is not entitled to claim any benefit under Section 53A of the Transfer of Property Act and hence, decreed the suits as prayed for.

7. Aggrieved by the said judgments and decrees dated 8.11.2000, the appellant/defendant preferred appeals in A.S.No.7 of 2001 and A.S.No.8 of 2001 before the learned Principal District Judge, Nagapattinam, against the judgments and decrees in O.S.No and 310 of 1999 respectively.

8. The learned Principal District Judge, considered the following relevant points:-

(i) Whether the appellant/defendant is entitled to the benefit of Section 53A of the Transfer of Property Act and

(ii) Whether Ex.A2, namely, the notice of termination dated 24.5.1999 is valid in law?

9. The learned Principal District Judge, Nagapattinam, by judgments and decrees dated 19.6.2001, held that the appellant/defendant was not put in possession of the suit property pursuant to the sale agreements even dated 3.2.1996, marked as Ex.B1 and therefore, his continuous occupation of the suit properties will not satisfy the compliance of taking over possession for the purpose of satisfying the requirements under Section 53A of the Transfer of Property Act and further found that the appellant/defendant was not ready and willing to perform his part of obligation as per Ex.B1 dated 3.2.1996 and on the other hand, the notice of termination dated 24.5.1999, marked as Ex.A2, issued by the respondents/plaintiffs, terminating the tenancy by 30.6.1999 and requiring the appellant/defendant to hand over vacant possession of each of the suit properties on 1.7.1999 is a valid notice and dismissed both the appeals, against which the appellant/defendant filed the above second appeals.

10. The above second appeals were admitted on 10.4.2002 on the following substantial questions of law:

(i) Whether the appellant is not entitled to the benefit under Section 53A of the Transfer of Property Act?

(ii) Whether the relationship of landlord and tenant will continue even after agreement of sale?

(iii) Whether the Courts below are legally right in decreeing the suit on the ground that the appellant has not sued for specific performance?

11. Mr.N.Maninarayanan, learned counsel appearing for the appellant/defendant, contends that the appellant/ defendant is entitled to the benefits of Section 53A of the Transfer of Property Act, as he was already put in possession of the suit properties even prior to the entering of the sale agreements dated 3.2.1996, marked as Ex.B1, notwithstanding the fact that he was a tenant under the respondents/ plaintiffs before entering into the sale agreements with regard to each of the suit properties. The mere failure of the appellant/defendant to sue for specific performance of the agreements of sale even dated 3.2.199 6, marked as Ex.B1, would not itself entitle the respondents/ plaintiffs to seek recovery of possession of the suit properties and consequential past and future profits as prayed for in the suits.

12. I have given a careful consideration to the submission of the learned counsel appearing for the appellant/defendant.

13. With regard to the substantial question of law raised by the learned counsel for the appellant/defendant seeking the benefit of Section 53A of the Transfer of Property Act and the possession of the appellant/defendant as a tenant in the suit properties, I am obliged to refer Section 53A of the Transfer of Property Act, which reads as follows: Section: 53A 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, 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 and is willing to perform his part of the contract,

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 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.

14. The execution of the sale agreements dated 3.2.1996, marked as Ex.B1, between the parties, is not disputed. Even though the appellant/defendant specifically pleaded that he has entered into a sale agreement with regard to each of the suit properties with the respondents/plaintiffs and he was ready and willing to perform his part of obligation as per Ex.B1 dated 3.2.1996, the same was specifically denied by the respondents/ plaintiffs in their written statement that the appellant/defendant was not ready and willing to perform his part of obligation as per Ex.B1 dated 3.2.1996.

15. Admittedly, there is no evidence on record adduced by the appellant/defendant to show that he was ready and willing to perform his obligation as per Ex.B1 dated 3.2.1996. On the other hand, the respondents/plaintiffs have proved that they sent a legal notice on 24.5.19 99, marked as Ex.A2, terminating the relationship of landlord and tenant between the respondents/plaintiffs and the appellant/defendant by 30.6.1999 and requiring the appellant/defendant to hand over vacant possession of the suit properties on 1.7.1999, which was found as valid in law by the Courts below. Even prior to the entering of the agreements of sale dated 3.2.1996, marked as Ex.B2, the appellant/ defendant was already put in possession of the suit properties as tenant. Therefore, his continuous possession in the suit properties even after entering into the sale agreements would not by itself amount to a part performance, putting the appellant/defendant in possession of the suit properties pursuant to the sale agreements dated 3.2.1996, marked as Ex.B1. If the agreements of sale are accepted, the tenancy would come to an end on the execution of the sale agreements dated 3.2.1996, marked as Ex.B1 itself. In which case, the appellant/defendant is not entitled for the benefit of Section 53A of the Transfer of Property Act, as it is well settled in law that the benefit under Section 53A of the Transfer of Property Act cannot be conferred on a party who is not willing to perform his part of the contract. It is also well settled in law that a prospective vendee, who claims to have taken possession, could not resist dispossession, if he is not willing to pay the price agreed upon within the stipulated time. In other words, in order to substantiate the plea of part performance, the appellant/defendant must assert that he demanded specific performance of the contract within the stipulated time, otherwise, it would only mean that he did not show readiness and willingness to perform his part of the contract, as held in M.Mariyappa v. A.K.Satyanarayana, reported in AIR 1984 Karnataka 50.

16. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as a statutory right, is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms covenanted thereunder, as held in Mohan Lal v. Mira Abdul Gaffar, reported in AIR 1996 SC 910. Hence, such readiness and willingness in the context of Section 53A of the Transfer of Property Act, must be absolute and unconditional.

17. In the instant case, the appellant/defendant, who claims benefit of Section 53A of the Transfer of Property Act, has not adduced any evidence that he was ready and willing to perform his part of obligation to substantiate his defence based on Section 53A of the Transfer of Property Act. On the other hand, as held by both the Courts below, the notice of termination dated 24.5.1999, marked as Ex.A2, terminating the tenancy with regard to each of the suit properties, is valid in law. Therefore, I am obliged to negative the contention of the learned counsel appearing for the appellant/defendant and the appellant/defendant is not entitled to the benefit of Section 53A of the Transfer of Property Act, as he had failed to substantiate his claim that he was ready and willing to perform his part of the contract nor asserted that he demanded specific performance within the stipulated time in the manner known to law. Therefore, his failure to assert that he demanded specific performance of the agreements of sale dated 3 .2.1996, within the stipulated time also disentitles him to stake the claim that he was ready and willing to perform his part of the contract.

Answering the substantial questions of law against the appellant/ defendant these second appeals are dismissed. No costs. Consequently, C.M.P.Nos.4761 and 4762 of 2002 are also dismissed. 23.07.2002

Index :Yes

Internet:Yes

atr/sasi

To:

1.The Principal District Judge,

Nagapattinam (with records).

2.The District Munsif,

Nagapattinam (with records).


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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