NANJEGOWDA AND ANOTHERversusGANGAMMA AND OTHERS

                       [2011] 10 S.C.R. 700


A                 NANJEGOWDA AND ANOTHER
                                  V.
                    GANGAMMA AND OTHERS
                  (Civil Appeal No. 2006 of 2006)
                         AUGUST 25, 2011
B
       [MARKANDEY KATJU AND CHANDRAMAULI KR.
                    PRASAD, JJ.]

        Transfer of Property Act, 1882 - s. 53A - Part
c performance - When attracted - Suit for declaration and
   possession over property - However, defendants claiming title
   over the property on basis of an agreement to sale as also
   irrevocable power of attorney executed by their predecessor-
   in-title in their favour - Trial court decreed the suit - Order
D upheld by the High Court - On appeal, held: Agreement to
 · sale recited that predecessor-in-title had delivered the
   possession of property to defendant no.3 - According to the
   defendtJnts, there had been ban on registration of documents,
   thus, predecessor-in-title executed an irrevocable power of
E attorney three years later - However, the contents of the
   general power of attorney show that the property at that
   particular time was in possession of predecessor-in-title
   (transferor) - Had defendant no.3 got possession of the
   property in pursuance of the agreement to sale; there was no
F occasion for predecessor-in-title to recite in clear terms that
   he was in possession of the property - Thus, the finding
   recorded by the courts below that defendants did not get
   possession of the property after execution of the sale deed
   is on correct appreciation of facts and does not call for
   interference - Provision of s. 53A is not attracted.
G
          'H' purchased certain property from 'R' under a
    registered sale deed. Plaintiffs-wife, daughter and son of
    'H' filed the suit for declaration and possession of the said
    property against the defendants. It was the case of the
H                               700
NANJEGOWDA AND ANR. v. GANGAMMA AND ORS. 701


plaintiffs that 'H' had executed a power of attorney in        A
favour of defendant nos 1 to 3 which came to an end on
the death of 'H'. The defendants did not deny that 'H' had
purchased the property from 'R' but claimed title over the
property on basis of an agreement to sale.· The
defendants also contended that since there was ban on          B
the registry of the property, 'H' executed an irrevocable
power of attorney as also an affidavit of the same date.
The trial court rejecting the plea of the defendants,
decreed the suit. The High Court upheld the judgment
and· decree of the trial court:                                c
    Dismissing the appeal, the Court
     HELD: 1.1 From a plain reading of Section 53A of the
Transfer of Property Act, 1882, it is evident that a party
can take shelter behind this provision only when the           D
following conditions are fulfilled. They are:
    (i) The contract should have been in writing signed
    by or on behalf of the transferor;
    (ii)The transferee should have got possession ·of the
    immoveable property covered by the contract;               E
    (iii)The transferee should have done some act in
    furtherance of the contract; and
    (iv)The transferee has either performed his part of the
    contract or is willing to perform his part of the          F
    contract.
    A party can take advantage of Section 53A only
when it satisfies all the aforesaid conditions. All the
postulates are sine qua non and a party cannot derive
benefit by fulfilling one or more conditions. [Para 8] [706-   G
A-D]
    1.2 The agreement to sale dated 27th November,
1982 recites that 'H' had delivered the possession of
property to defendant no.3. According to the defendants,
                                                               H
    702       SUPREME COURT REPORTS               [2011) 10 S.C.R.


A there had been ban on registration of documents, thus,
  'H' executed an irrevocable power of attorney on 14th
  July, 1985. The contents of the general power of attorney
  show that the property at that particular time was in
  possession of 'H', the transferor. Had defendant no.3 got
B possession of the property in pursuance of the
  agreement to sale dated 27th November, 1982, there was.
  no occasion for 'H' to recite in clear terms that he was in
  possession of the property. Thus, the finding recorded
  by the trial ·court as upheld by the High Court that
c defendants did not get possession of the property after·
  execution ·of the sale deed is on correct appreciation of
  facts, which does not call for interference. In view Qf the
  said finding; the provision of Section 53A of the Transfer
  of Property Act is not attracted and defendants cannot
D take advantage of that. [Paras 9 and 10) [706-F-H; 707-C-
  D)
        CIVIL APPELLATE JURISDICTION : Civil Appeal No._
    2006 of 2006.
      From the Judgment & Order dated 08.02.2005 of the High
E Court of Karnataka at Bangalore in Regular First Appeal No.
  651 of 1998.
          Girish Ananthamuthy (for P.P. Singh) for the Appellants.
          S.N. Bhat for the Respondent.
F         The Judgment of the Court was delivered by
        CHANDRMAULI KR.PRASAD, J. 1. Defendant No.1
  Nanjegowda and his wife defendant No.3 Jayamma are before
  us by special leave against the judgment and decree of
G affirmance.
      2. Plaintiff No.1 Gangamma is the wife of late Honnanna.
  Plaintiff no.2 Vanajakshi is the daughter of plaintiff no.1,
  whereas plaintiff no.3 Nagesha and defendant no.2 Manjunatha
  are her sons. Plaintiffs filed the suit for declaration and
H possession over an area measuring East to West 50 feet and
    NANJEGOWDA AND ANR. v. GANGAMMA AND                        703
      ORS. [CHANDRAMAULI KR. PRASAD, J.]
 North to South 15 feet with. a house built thereon measuring          A
 15x12 feet, appertaining to survey No. 70/19, situated at
 Kamakshipalya,Saneguruvanahalli, Yeshwanthapur Hobli,
 Bangalore North Jaluk in the State of Karnatal<a.
       3. According to the plaintiffs, the property originally
                                                                       8
  belonged to one Ramakrishna. He had purchased the same
  under a registered sale deed dated 13th December, 1978. The
  aforesaid Ramakrishna sold the said property to Honrianna by
  a registered sale deed dated 5th June, 1980. According to ttie
  plaintiffs, Honnanna executed the power of attorney in respect
  of the suit property in favour of defendant nos.1 and 3 which        C
  came to an end on his death on 13th July, 1986. Defendant
  nos.1 and 3 ·hereinafter referred to as the defendants
  (appellants herein) contested the suit. They have not denied that
  Honnanna had purchased the property on 5th June, 1980 from
  Ramakrishna. However, they claim title over the property on the      D
  basis of an agreement to sale dated 27th November, 1982. It
  is further case ofthe defendants that there being a ban on
  registry of the property, an irrevocable power of attorney was
  executed byHonnanna on 14th July, 1985 as also an affidavit
· of the same date.                                                    E

      4. On the basis of the pleadings of the party, the Trial Court
framed various issues including the issue as to whether
defendant nos. 1 and 3 had acquired title to the property after
the death of Honnanna. The Trial Court on appraisal of                 F
evidence, came to the conclusion that defendants had failed
to prove that Honnanna executed an agreement to sale in
favour of defendant no.3 Jayamma. The Trial Court further held
that plea of the defendants that Honnanna delivered
possession of the scheduled property in the light of the               G
agreement dated 27th November, 1982 on the date of
agreement is false. In coming to the aforesaid conclusion, the
Trial Court referred to the contents of the general power of
attorney which indicated that Honnanna had given the general
power ofattorney in favour of Jayamma to manage the property.
While doinq so the Trial Court observed as follows:                    H
    704      SUPREME COURT REPORTS                   [2011] 10 S.C.R.


A                 "48 .......... what can be made from these recitals is
          that Honnanna was in possession of the schedule property
          l;Jpto the date of execution of said general power of attorney
          i.e. 22.7.1985. That being so, the contention of defendants
          1 and 3 that Honnanna delivered portion of the schedule
B         property referred to in the agreement of sale dated
          27.11.1982 on the alleged date of agreement of sale is
          found to be false ..... "

      5. In the light of the aforesaid findings, the Trial Court
  decreed the suit and on appeal by the defendants, the High
C Court had dismissed the appeal and affirmed the judgment and
  decree of the Trial Court.

       6. Mr. Girish Ananthamurthy, learned Counsel appearing
  on behalf of the appellants submits that Honnanna executed an
D agreement to sale in favour of defendant no.3 Jayamma and
  she was put in possession. According to him, after the
  execution of the agreement to sale, the ban on the registration
  of the documents was not lifted and accordingly Honnanna
  executed an irrevocable power of attorney and sworn
E affidavit.acknowledging possession on 14th July, 1985. He
  draws our attention to the agreement to sale (Ext. D-1) dated
  27th November, 1982 and the affidavit dated 14th July, 1985
  (Ext. D-3) and contends that Honnanna having delivered the
  possession of the property, notwithstanding the fact that sale
F deed has not been executed and registered, defendants shall
  have right over the property. In this connection, our attention has
  been drawn to Section 53A of the Transfer of Property Act, 1882
  (hereinafter referred to as the 'Act'). On this ground alone,
  according to the learned Counsel, the courts below ought to
G have dismissed the suit.

         7. Mr. S.N. Bhat, learned Counsel appearing on behalf of
    the plaintiffs-respondents, however, contends that the plea put
    forth by the defendants that they were handed over the
    possession of the property in part performance of the Contract
H
NANJEGOWDA AND ANR. v. GANGAMMA AND ORS. 705
      [CHANDRAMAULI KR. PRASAD, J.] .

is unfounded on fact and hence Section 53A of the Act is not        A
remotely attracted. He points out that the findings recorded by
the Trial Court, as affirmed by the High Court that possession
was not delivered to the defendants is on appraisal of evidence
which does not call for interference in this appeal.
                                                                    B
    8. We have bestowed our consideration to the rival
submissions. Section 53A of the Act which is relevant for the
purpose reads as follows:

          "53A. Part performance- Where any person
    contracts to transfer for consideration any immoveable          C
    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        D
    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 or is willing to         E
    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 therefore by the law         F
    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            G
    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."
                                                                    H
    706           SUPREME COURT REPORTS             [2011] 10 S.C.R.


A         From a plain reading of the aforesaid provision, it is
          evident that a party can take shelter behind this provision
          onlywhen the following conditions are fulfilled. They are:

           (i)     The contract should have been in writing signed by
                   or on behalf of the transferor;
B
           (ii)    The transferee should have got possession of the
                   immoveable property covered by the contract;

           (iii)   The transferee should have done some act in
c                  furtherance of the contract; and

           (iv)    The transferee has either performed his part of the
                   contract or is willing to perform his part of the
                   contract.

D        A party can take advantage of this provision only when it
    satisfies all the conditions aforesaid. All the postulates are sine
    qua non and a party cannot derive benefit by fulfilling one or
    more conditions.

E      9. Bearing in mind the aforesaid principle, we, now,
  proceed to consider as to whether defendants have satisfied
  all the requirements. Had they got possession of the
  immoveable property covered by the contract necessary for
  invocation of Section 53A of the Act? Agreement to sale dated
  27th November, 1982 recites that Honnanna had delivered the
F possession of property to defendaf"!t no.3 Jayamma. According
  to the defendants, there had been ban on registration of
  documents, hence Honnanna executed an irrevocable power
  of attorney on 14th July, 1985. The contents of the general
  power of attorney show that the property at that particular time
G was in possession of Honnanna, the transferor. This would be
  evident from the following recital in the power of attorney:

               "The vacant site as mentioned in the schedule below
          which is in my possession acquired through the registered
H         Sale Deed dated 05.05.1980 registered in the Office of
   NANJEGOWDA AND ANR. v. GANGAMMA AND                      707
     ORS~ [CHANDRAMAUU KR. PRASAD, J.]

     the Sub-Registrar. Bangalore NorthTaluk, in Book No. 1,        A
     Volume 3236 page 210-230 No. 1363, I have hereby given
   · the power in favour of you to look after and manage
     completely on my behalf as I am unable to manage for
     inevitable reasons."
                                                                    B
                                              (underlining ours)

      10. Had defendant no.3 Jayamma got possession of the
property in pursuance of the agreement to sale dated 27th
November, 1982, there was no occasion for Honnanna to recite
in clear terms that he was in possession of the property. In view   C
of the aforesaid, we are of the opinion that the finding recorded
by the Trial Court as affirmed by the High Court that defendants
did not get possession of the property after execution of the
sale deed is on correct appreciation of facts, which do not call
for interference in this appeal. In view of this finding, in our    D
opinion, the provision of Section 53A of the Transfer of Property
Act is not attracted and defendants cannot take advantage of
that.

     11. In the result, we do not find any merit in this appeal
                                                                    E
which is dismissed accordingly but without any order as to the
costs.

N.J.                                        Appeal dismissed.