VASANTHIversusVENUGOPAL (D) THR. LRS.

                         [2017] 4 S.C.R. 919


                             VASANTHI                                      A
                                  v.
                   VENUGOPAL (D) THR. LRS.
               (Civil Appeal Nos. 4311-4312 of 2017)
                          MARCH21, 2017                                    B

           [DIPAK MISRA AND AMITAVA ROY, JJ.)
       Transfer of Property Act, 1882 - s.53A - Part performance -
Protection of possession under - Pre-requisites - When not satisfied
- Suit by appellant-plaintiff for declaration of title in suit property    C
and alsC' for recovery of possession thereof which she claimed to
have purchased from the sons of one 'R' - The original defendant
pleaded that he purchased the suit property from 'R' and was in
possession thereof in view of part performance of the contract and
claimed protection of possession u/s.53A - Plea of plaintiff is that
she was a bona fide purchaser for value without notice of any such         D
agreement between 'R ' and the original defendant and even if such
agreement existed, the defendant was not entitled to remain in
possession of suit property without enforcing the same in law and
thus not entitled to avail protection u/s.53A - Suit dismissed by trial
court holding that possession of original defendant was protected          E
u/s. 53A - Appeal by appellant, dismissed - LPA by appellant
dismissed as not maintainable - On appeal, held: The evidence on
record shows that an agreement for sale was indeed executed
 between R and the original defendant, in part performance whireof
 the original defendant was in possession of suit property - However,
 admittedly neither the original defendant nor the respondents took        F
 recourse to law for specific performance of the agreement - Original
 defendant also failed to plead in the written statement his readiness
 and willingness to perform his part of the contract - Further, the
 sale deed in favour of appellant has been duly proved and in terms
 of evidence it is also clear that the appellant had no notice or          G
 knowledge of agreement for sale between 'R' and the original
 defendant, at the time of her purchase - Thus, though LPA filed by
 appellant-plaintiff was not maintainable, respondents not entitled
  to benefit of protection u/s.53A r/w. s.16, Specific Relief Act having
 failed to aver and prove that they have performed or have always
 been ready and willing to perform the essential terms of the contract     H
                                   919
920            SUPREME COURT REPORTS                       [2017] 4 S.C.R.


A to be performed by them - Suit filed by appellant accordingly
      decrer!d, as prayed for - Specific Relief Act, 1963 - s.16.
             Limitation - Bar of. for filing suit for specific performance -
      When inapplicable for claiming protection of possession uls.53-A,
      Transfer of Property Act, 1882 - Held: Mere expiry of period of
B     limitation for a suit for specific performance may not be a bar for a
      person in possession of an immovable property in part performance
      of a contract to claim protection of possession uls. 53A if all the
      essential pre-requisites of s.53A are complied with - Transfer of
      Property Act, 1882 - s.53A.
c           Code of Civil Procedure (Amendment) Act, 2002 - s. l 00-A -
      Effect of. reiterated.
             Disposing of the appeals, the Court
        HELD:l.l In regard to the availability of the protection of
  Section 53A of Transfer of Property Act, 1883 to the original
D defendant and on his death, to the present respondents, the
  evidence on record does proclaim that the agreement for sale
  dated 20.5.1975 had indeed been executed between 'R', the
  predecessor-in-interest of the vendors of the appellant/plaintiff,
  and the respondents, pursuant. whereto, the respondents are in
E occupation of the suit property. However, adequate evidence is
  not forthcoming to convincingly authenticate that the proposed
  purchaser (original defendant) and thereafter his heirs i.e. the
  present respondents, had always been ready and willing to
  perform his/their part of the contract, which amongst others, is
  attested by his/their admitted omission to enforce the contract in
F law. His/their readiness and willingness to perform his/their part
  of the contract is also not pleaded in the written statement in
  clear.and specific terms as required.(Paras 17, 24] [927-B-C; 930-
      E-G)
        1.2 Further, on a perusal of the evidence adduced, it
G transpires that the sale deed dated 26.6.1982 had been proved
  on behalf of the appellant/plaintiff. The evidence on record,
  further shows that the appellant/plaintiff had no conscious notice
  or knowledge of the agreement for sale dated 20.5.1975 executed
  between 'R', the predecessor-in-interest of her vendors and the
H respondents at the time of her purchase. The fact that at the first
          VASANTHI v. VENUGOPAL (D) THR. LRS.                            921


instance, the appellant/plaintiff had filed an application before the A
Rent Controller for eviction of the original defendant as a tenant,
also attests her ignorance at that point of time of the agreement
for sale and his occupation of the premises in part performance
thereof. (Paras 17, 24 and 25) (929-F; 930-G; 931-A-B)
      2.1 The protection of a prospective purchaser/transferee           B
of his possession of the property involved, is inter alia available
subject to the following prerequisite:
      (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 19) [929-A-B, DJ                                         c
      2.~ In terms of this provision, if the above pre-conditions
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 D
than a right expressly provided by the terms of the contract,
notwithstanding the fact, that the transfer, as contemplated, had
not beeil 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. E
[Para 20) [929-D-F]
      3. Though mere expiry of the period of limitation for a suit
for specific performance may not be a bar for a person in
possession of an immovable property in part performance of a
contract for transfer thereof for consideration to assert the shield     F
of Section 53A of T.P. Act, it is nevertheless imperative that to
avail the benefit of such protection, all the essential pre-requisites
therefor would have to be obligatorily complied with. [Para 26)
[931-D-E)
      4. In view of Section 16 of the Specific Relief Act, 1963,          G
specific performance of a contract cannot be enforced in favour
of a person who, inter alia, 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
unless prevented or waived by the other party thereto. [Para 30)
[932-B-CJ                                                                 H
922            SUPREME COURT REPORTS                        [2017] 4 S.C.R.


A           Shrimant Shamrao Suryavanshi and Am: v. Pra/had
            Bhairoba Suryavanshi by LRs. and Ors. (2002) 3 SCC
            676 : [2002) 1 SCR 393; A. Lewis and Another v. MT.
            Ramamurthy and Others (2007) 14 SCC 87 - relied
            on.
B           Kam/a Devi v. Kushal Kanwar and Am: (2006) 13 SCC
            295 : [2006) 10 Suppl. SCR 1147; Mohd. Saud and
            Anr. v. Dr. (Maj.) Shaikh Ma~fooz and Ors. (2010) 13
            SCC 517 : [2010) 14 SCR 84 - referred to.
                              Case Law Reference
c           [2006) 10 Suppl. SCR 1147         referred to     Para 15
            [2010) 14 SCR 84                  referred to     Para 15
            [2002) 1 SCR 393                  relied on       Para 26
            c2001) 14 sec 87                  relied on       Para 27
D
           CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4311-
      4312of2017.
            From the Judgment and Order dated 31.07.2006 in A. S. No. 124
      of 1990 & against the final Judgment and order dated 08.10.2007 in
      L.P.A. SR. No. 16958 of2007 of the High Court of Judicature at Madras.
E
           R. Basant, Sr. Adv., C. Paramasivam, Arunagiri, Rakesh K.
      Sharma, Advs. for the Appellant.
            Ms. Malini Poduval, Ms. Babita Sant, Advs. for the Respondents.
            The Judgment of the Court was delivered by
F
            AMITAVA ROY, J. 1. Leave granted.
          2. The impugnment herein is both of the judgment and order
  dated 31.7.2006, rendered by the Single Judge of the High Court of
  Judicature at Madras inA.S. No. 124of1990, preferred by the appellant/
G plaintiff questioning the decision of the Subordinate Judge, Cuddalore
  dated 28.4.1989 in O.S. No. 172 of 1987 as well as the order dated
  8. l 0.2007, passed by the Division Bench of the said High Court rejecting
  the Letters Patent Appeal SR. No. l 6958 of2007 preferred by her against
  the dismissal ofAppealA.S. No.124of1990, as not maintainable in the
  face of Section 100-A of the Code of Civil Procedure, 1908 (as amended)
H
            VASANTHI v. VENUGOPAL (D) THR. LRS.                                  923
                     [AMITAVA ROY, J.]

(hereinafter referred to as "CPC/Code").                                         A
      3. We have heard Mr. R. Basant, learned senior counsel for the
appellant/plaintiff and Ms. Malini Poduval, learned counsel for the
respondents.
        4. As the rival assertions are integrated in the pleadings, a brief
reference thereto, is indispensable. The appellant/plaintiff instituted O.S. B
No.172 of 1987 against the predecessor-in-interest of the present
respondents i.e. Venugopal (deceased) praying for a declaration of her
title jn the suit property and also for recovery of possession thereof. She
claimed to have purchased the same vide registered sale deed dated
26.6.1982 for the consideration price of Rs.35,000/- from the so;:is of c
Ramnathan Chettiar, the original owner, whereupon she was registered
in the municipal records as the title-holder thereof. She averred that at
the time of sale, the original defendant Venugopal was in possession of
the property as a tenant of her vendors on payment rent of Rs.100 per
month. As the defendant-Venugopal did neither accept her a~ his landlord
nor agreed to pay the enhanced rent of Rs. 150/-, as demanded, after D
causing a notice to be served on him, the appellant/plaintiff filrd an
application before the Rent Controller, Cuddalore being R.C. O.P. No.
29 of 1986 for his eviction from the suit property.
        5. In the said proceeding, the original defendant-Venugopal denied
the title of appellant/plaintiff in the suit property and claimed to be in       E
occupation thereof on the strength of an agreement of sale executed
between him and the original owner Ramnathan Chettair. At this, the
appellant/plaintiff instituted a suit claiming the reliefs, as aforementioned,
by pleading that neither she was aware of any·such agreement at the
time of her purchase nor of any part performance thereof as claimed              F
and that even if any such agreement did exist, the respondent/defendant
was not entitled to remain in possession of the suit property without
enforcing the same, as contemplated in law. She contended that she
was a bona fide purchaser for value without notice of such agreement
and maintained that the defendant was not entitled to avail the prote;;tion
under Section 53A of the Transfer of Property Act, 1882 (for short,              G
hereinafter to be referred to as "T.P. Act").
      6. The original defendant-Venugopal in his written statement,
while reiterating that Ramnathan Chettiar was the owner of the suit
property, stoutly denied the transaction of sale by his sons in favour of
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924           SUPREME COURT REPORTS                         [2017] 4 S.C.R.


A the plaintiffvide registered sale deed dated 26.6.1982. He also asserted
  that the vendors of the appellant/plaintiff had no subsisting title in the
  suit property to convey to her. He denied that his possession of the suit
  property at the time of purported sale in favour of appellant/plaintiff was
  that cf a tenant under her vendors and reiterated that pursuant to an
B agreement of sale dated 20.5.1975 with the original owner Ramnathan
  Chettiar, he had by installments, in all paid Rs. 26,000/- by 12.4.1976
  which formed a major part of the consideration price. He stated further
  that at the time of execution of the agreement of sale dated 20.5.1975,
  one Purushothainan was in occupation of the suit property as a tenant
  under the original owner, who following the compromise between him
C (tenant) and the landlord vacated the suit premises, whereafter possession
  thereof was delivered by the original owner to him on 1. 7.197 6 and that
  since then, he paid as well the property tax therefor. However, though
  agreed upon and inspite ofrepeated insistences, the original owner did
  not execute the sale deed and after his death, his sons also avoided to do
D so. He claimed protection of his possession in terms of Section 53A of
  T.P. Act and also alleged that the plaintiff was not a bona fide purchaser
  without notice of the agreement for sale between him and the original
  owner. He pleaded as well that his right, secured under Section 53A of
  the T.P. Act, did not stand effaced by any period of limitation, as time
  was not the essence of contract for enforcing the specific performance
E thereof The parties though did exchange additional pleadings, it is
  inessential to dilate thereon.
         7. The Trial Court, on the basis of the pleadings, framed issues
  and by its verdict dated 28.4.1989 dismissed the suit holding inter alia
  that the possession of the original defendant of the suit property was
F protected under Section 53A of th~ TP Act, as the ingredients thereof
  stood complied with by him and tha?the appellant/plaintiff was not entitled
  to the relief of declaration or possession, as sought for.
         8. Being aggrieved, the appellant/plaintiff preferred appeal being
  A.S. No.124of1990 before the High Court ofJudicature at Madras and
G as hereinbefore mentioned, the same also met the same fate. Her Letters
  Patent Appeal being L.P.A. SR No.16958 of 2007 was dismissed as not
  maintainable being in the teeth of Section l 00-A of C.P.C ..
        9. Mr. Basant has assiduously urged that as Section 100-A of
  CPC is not attracted to the LPAfiled by the appellant/plaintiff, dismissal
H thereof, by reference to that provision, is patently erroneous. Without
            VASANTHI v. VENUGOPAL (D) THR. LRS.                                 . 925
                     [AMITAVA ROY, J.]

 prejudici:: to this plea, the learned senior counsel has urged that as the      A
 suit property had been purchased by the appellant/plaintiff by a registered
.sale deed dated 26. 6.1982 from the owners thereof and as the transaction
 has remained unimpeac:hed, the agreement for sale dated. 20.5.1975
 between the predecessor in-interest of the respondents and the original
 owner, even if valid, is of no consequence and, therefore, both the forums
                                                                                 8
 below, have grossly erred in law and on facts in dismissing her suit. He
 further contended that not only the appellant/plaintiff is a bona fide
 purchaser for value without any notice of the said agreement, in the
 face of the failure of the respondents to prove the readiness and
 willingness of their predecessor to perform his part of the contract at all
 relevant times and also his omission to file a suit for specific performance    C
 within the prescribed period of limitation, no protection under Section
 53A ofT.P. Act was available to him and presently to the respondents.
 Further as the respondents/defendants have declined to admit the
 appellant/plaintiff as their landlord, their occupation of the suit premises
 is that of rank trespassers and as such, are liable to be evicted. Mr.
 Basant placed reliance on the decision of this Court in Kam/a Devi vs.          D
 Kushal Kanwar and another (2006) 13SCC 295 and Mohd. Saud
 and another vs. Dr. (Maj.) Shaikh Mahfooz and others (2010) 13
 sec 517.
        10. Ms. Malini Poduval, learned counsel for the respondents, in
repudiation, has argued that the vendors of the appellant/plaintiff, having E
categorically admitted the agreement for sale dated 20.5.1975 between
their predecessor-in-interest Ramnathan Chettiar and the original
defendant Venugopal and his possession of the suit property on the basis
thereof, the finding that the benefit of Section 53A of the TP Act is
extendable to them, is unexceptionable in the facts and circumstances F
of the case. Not only the original defendant had been ever ready and
willing to perform his part of contract, the purported purchase by the
appellant/plaintiff from the heirs ofRarnnathan Chettiar, being wit!l the .,,_
full knowledge of said agreement and the possession of the original
defendant, on the basis thereof, the transaction of sale did neither convey
any title to her nor was it bona fide for all intents and purposes. According G
to the learned counsel, the suit has been rightly dismissed by both the
forums and the dismissal of the LPA filed by the appellant/plaintiff is
also unassailable.
        11. The competing propositions have been duly addressed. The
                                                                                  H
926            SUPREME COURT REPORTS                         [2017] 4 S.C.R.


A disputation pertaining to the maintainability of the LPAdeserves attention
  at the threshold. Section 100-A of the CPC was inserted by the
  amendment Act 104of1976, which reads as under:
            "100-A. No further appeal in certain cases -
            Notwithstanding anything contained in any Letters Patent for
B           any High Court or in any other instrument having the force of law
            in any other law for the time being in force, where any appeal
            from an appellate decree or order is heard and decided by a Single
            Judge of a High ·Court, no further appeal shall lie from the
            judgment, decision or order of such Single Judge in such appeal or
 c          from any decree passed in such appeal."
            12. Though this Section was amended by the Amendment Act 46
      of 1999, reference thereto is avoided as the said amendment was not
      given effect to.
         13. This provision underwent another amendment by Amendment
 D Act 22 of2002, to be refashioned as hereinbelow.
            "100-A: No further appeal in certain cases - Notwithstanding
            anything contained in any Letters Patent for any High Court or in
            any instrument having the force of law or in any other law for the
            time being in force, where any appeal from an original or appellate
 E          decree or order is heard and decided by a Single Judge of a High
            Court, no further appeal shall lie from the judgment and decree of
            such Single Judge."
          14. This amended provision enforced w.e.f. 1.7.2002 predicated
   that notwithstanding anything contained in any Letters Patent for any
 F High Court or in any instrument having the force of law or in any other
   law for the time being in force, where any appeal from an original or
   appellate decree or order is heard and decided by a Single Judge of a
   High Court, no further appeal would lie from the judgment and decree of
   such Single Judge.
 G           15. The purport and purview of this amended provision fell for the
      scrutiny of this Court, amongst others in Kam/a Devi (supra) and Mohd.
      Saud (supra), wherein it was held in unambiguous terms that only Letter:
      Patent Appeal, filed prior to the coming into force of the said amendmert
      vide Act 22 of2002 would be maintainable and as a corollary, by virtue
 H
            VASANTHI v. VENUGOPAL (D) THR. LRS.                                 927
                     [AMITAVA ROY, J.]

of the bar contained therein, Letters Patent Appeal filed thereafter, would     A
not be maintainable.
       16. As the contextual facts in these decisions are inessential, having
regard to the hyaline legal postulations as above, elaboration thereof is
avoided. The dismissal of the LPA of the appellant/plaintiff, in the face
of the above judicially adumbrated explication of Section IOO-A ofCPC           B
by this Court, cannot thus be faulted with.
        17. Reverting to the availability of the protection of Section 53A
of TP Act to the original defendant and on his death, to the present
respondents, to reiterate, the evidence on record does proclaim that the
agreement for sale dated 20.5.1975 had indeed been executed between c
the predecessors-in-interest of the vendors of the appellant/plaintiff and
the respondents herein, pursuant whereto, an amount of Rs. 26,000/- in
all had b~en paid by the proposed purchaser and the possession of the
suit property had been handed over to him in consideration thereof. As
a matter of fact, at the time of execution of said agreement, the suit
property was in occupation of a tenant of the proposed seller i.e. the D
predecessor-in-interest of the vendors of the appellant/plaintiff and that
following a compromise, the tenant delivered possession of the suit
property to the predecessor-in-interest of the present respondents and
since thereafter, they are in occupation thereof. The evidence on record,
however, does not in very clear tenns establish that the appellant/plaintiff E
had conscious notice or knowledge of this agreement for sale at the time
 of her purchase. Admittedly as well, neither the predecessor-in-interest
 of the respondents nor they had taken recourse to law for specific
 perfonnance of the agreement. This assumes importance in view of the
 avennent made in the written statement that even prior to the demise of
 the predecessor-in-interest of the vendors of the appellant/plaintiff, he F
 did not comply with the requests of the original defendant to get the sale
 deed executed and his legal heirs, after his demise, also adopted the
 same non-cooperative stance.
       18. Section 53AofT.P. Act and Section 16 of the Specific Relief
Act, 1964 (for short, hereinafter to be referred to as "Act, 1963"), being G
of significant relevance are extracted hereunder:
       "53A. Part performance.-Where any person contracts to
       transfer for consideration any immoveable property by writing
       signed by him or on his behalf from which the tenns necessary to
                                                                                H
928        SUPREME COURT REPORTS                           [2017] 4 S.C.R.


A        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 or is willing to
B        perform his part of the contract, then, notwithstanding that 2[***]
         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
c        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
D       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
E
        (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 willfully acts at
        variance with, or in subversion of, the relation intended to be
        established by the contract; or
 F
        (c) who fails to aver and prove that he has performeci 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),-
G       (i) where a contract involves the payment of money, it is not
        essential for the plaintiff to actually tender to the 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

H
           VASANTHI v. VENUGOPAL (D) THR. LRS.                                929
                    [AMITAVA ROY, J.]

      willingness to perform, the contract according to its true              A
      construction." (Emphasis supplied)
                                                      l.l
      19. As would be patent from the above quotes, 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       B
      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;
      (bJ The transferee has, in part performance of the contract, taken
      possession of the property or any part thereof, or the transferee,      c
      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.
                                                                              D
       20. In terms of this provision, if the above pre-conditions ~tand
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,    E
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.
       21. On a perusal of the evidence adduced, it transpires that the F
sale deed dated 26.6.1982 had been proved on behalf of the appellant/
plaintiff. PW! Subramanian, the husband of the appellant/plaintiff in his
testimony has stated that at the time of purchase, when he enquired
about the possession of the original defendant, his vendors told him that
he was in occupation of the premises as a tenant and that after the G
purchase, as he (original defendant) refused to pay the rent, the
application before the Rent Controller, Cuddalore was filed for his eviction
therefrom and it was in that proceeding, that the original defendant
disclosed about the agreement for sale, whereafter the suit had to be
filed seeking declaration of title and possession. This witness categorically
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930           SUPREME COURT REPORTS                        [2017] 4 S.C.R.


A denied about his knowledge of such agreement for sale at the time of
  purchase.
         22. PW2 Deenadayalan, one of the sons of the original owner
  Ramnathan Chettiar on oath affirmed the execution of the sale deed
  dated 26.6.1982 in favour of the appellant/plaintiff for a consideiation of
B Rs. 35,000/-. Though, this witness admitted the agreement for sale
  between the original defendant and his father, he mentioned that on
  enquiry, his father had told him that the agreement had lapsed as the
  purchase was not made within time. This witness also categorically
  stated that he did not disclose about the agreement for sale to the
  appellant/plaintiff and instead had disclosed to her husband that the
C original defendant was only a tenant in possession of the suit property.
         23. As against this, the respondents, amongst others sought to
  rely on the testimony of DWI to the effect that he had always been
  ready.and willing to perform the contract and also in the reply to the
  notice sent by the vendors of the appellant/plaintiff conveying the
D cancellation of the agreement, he reiterated his readiness and willingness
  to get the sale deed, on the basis of the agreement for sale, executed.
         24. The attendant facts and the evidence on record, though
  demonstrate that an agreement for sale of the suit property hld been
  entered into on 20.5.1975 between the predecessor-in-interest of the
E vendvrs of the appellant/plaintiff and the original defendant and that an
  amount of Rs. 26,000/- had been paid by the latter for which the possession
  of the suit property had been delivered to him, to reiterate, adequate
  evidence is not forthcoming to convincingly authenticate that the proposed
  purchaser and thereafter his heirs i.e. the present respondents, had always
F been ready and willing to perform his/their part of the contract, which
  amongst others, is attested by his/their omission to enforce the contract
  in law. His/their readiness and willingness to perform his/their part of
  the contract is also not pleaded in the written statement in clear and
  specific term as required. Further the materials on record also do not
  testify in unequivocal terms that at the time of purchase, the appellant/
G plaintiff had the knowledge/information of such agreement for sale or
  the part performance as claimed, so as to repudiate her transaction to be
  neither bona fide nor one with notice of such contract or the part
  performance thereof, as comprehended in the proviso to Section 53A of
  the T.P. Act.
H
           VASANTHI v. VENUGOPAL (D) THR. LRS.                                931
                    [AMITAVA ROY, J.]

 .     25. The fact that at the first instance, the appellant/plaintiff had A
filed an application before the Rent Controller, Cuddalore for evictitm of
the original defendant as a tenant, also attests her ignorance at that point
of time of the agreement for sale and his occupation of the premis.:s in
part performance thereof.
       26. This Court in Shrimant Shamrao Suryavanshi and another B.
vs. Pralhad Bhairoba Suryavanshi by Lrs. and others (2002) 3 SCC
676, while tracing the incorporation of Section 53A in the TP Act, vide
Act of 1929, acting on the recommendations of the Special Comrr.ittee
on the issue, had ruled that mere expiration of the period oflimitatton for
bringing a suit for specific performance would not debar a person in
possession of an immovable property by way of part performance from C
setting up a plea, as contemplated therein in defence to protect his
possession of the property involved. It was however underlined that if
the conditions precedent, as enumerated, in Section 53A of the Act, are
complied with, the law oflimitation would not come in the way of the
said person to avail the benefit of the protection to his possession as D
extended thereby even though a suit for specific performance·of a
contract by him had gone barred by limitation. Explicitly therefore, though
mere expiry of the period oflimitation for a suit for specific performance
may not be a bar for a person in possession of an immovable property in
part performance of a contract for transfer thereof for consideration to
assert the shield of Section 53Aof T.P. Act, it is nevertheless imperative E
that to avail the benefit of such protection, all the essential pre-requisites
therefor would have to be obligatorily complied with.
      27. In A. Lewis and another vs. M. T. Ramamurthy and others
(2007) 14 sec 87, it was propounded that the right to claim protection
under Section 53A ofT.P. Act would not be available, ifthe transferee          F
remains passive without taking effective steps and abstains from
performing his part of the contract or conveying his readiness- and
willingness to that effect.
      28. Added to this, to reiterate, is the proviso to Section 53A ofT.P.
Act which excludes from the rigour of the said provision a transferee          G
for consideration, who has no notice of the contract or of the part
performance thereof.
       29. In the contextual facts, as obtained herein, the materials on
 record do not unmistakably demonstrate that the original defendant during
                                                                               H
932            SUPREME COURT REPORTS                           [2017] 4 S.C.R.


A his lifetime and on his demise, his heirs i.e. the respondents bad been
  always and ever ready and willing to perform his/their part of the contract
  and that the appellant/plaintiff had notice either of the agreement for
  sale or the fact that the original defendant had been in occupation of the
  suit premises by way of part performance of the contract.
B         30.Apropos, Section 16 of the Act, 1963, specific performance of
  a contract cannot be enforced in favour of a person who, inter alia, 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 unless prevented or waived by the other party thereto.
  As mentioned hereinabove, though there is an averment in the written
C statement that before the death of the predecessor-in-interest of the
  vendors of the appellant/plaintiff, the original defendant had requested
  him to execute the sale deed and after his demise, he made similar demands
  with them, evidence is jejune to irrefutably establish the readiP.ess and
  willingness ofhis, during his lifetime and after his death, of the respondents,
D to perform his/their part of the contract. It is also not the case of either
  the original defendant or the present respondents that his/their
  performance of the contract had been either prevented or waived by
  either the vendors of the appellant/plaintiffor their predecessor-in-interest
  at any point of time.
E            31. Noticeably, the sale deed executed in favour of the appellant/
      plaintiff and proved in evidence has not been annulled as on date and is
      thus valid and subsisting.
            32. On an overall view of the matter, we are of the opinion that
      the conclusions recorded by the courts below are based on an erroneous
F     understanding of the prescriptions of Sections 53A of T.P. Act. The
      determinations made thus cannot be sustained.
         33. On an appraisal of the evidence on record, on the touchstone
  of the above legal propositions, we are thus of the considered view, that
  though the LPA preferred by the appellant/plaintiff is not maintainable in
G law, the respondents are not entitled to the benefit of the protection of
  Section 53A of the T.P. Act read with Section 16 of the Act, 1963.
         34. In the result, civil appeal filed against the judgment and order
  dated 31.7.2006, rendered in AS. No. 124 of1990 affirming the judgment
  and order dated 28.4.1989 passed in O.S. No. 172of1987 is allowed
H and Civil Appeal preferred against the judgment and order dated
               VASANTHI v. VENUGOPAL (D) THR. LRS.                            933
                        [AMITAVA ROY, J.]

8.10.2007 passed in LPA SR No. 16958 of 2007 is dismissed. As a A
consequence, the suit filed by the appellant/plaintiff is decreed, as prayed
for. No costs.


Divya Pandey                                           Appeals disposed of.