Smt.Aruna Gupta vs Sureshchand

This First Appeal u/S.96 of the CPC is at the instance of the defendant No.4 and 5 challenging the judgment of the trial court dated 28th

January, 2000 decreeing the CS No.23-A/1997 filed by the respondent No.1 and 2 (plaintiffs).

The suit was filed by the respondent No.1 and 2 for declaration and possession with the plea that Prabhudayal, father of respondent No.1 and 2

was the owner of the suit house and Vanmala (deceased defendant No.1) and respondent No.4 and 5 Smt. Sushila & Smt. Savita are the

daughters of Prabhudayal. Prabhudayal had died on 27/6/1986 and his wife Birdibai had died on 7/10/1982 and pending the suit defendant No.1

Vanmala had also died. It was pleaded that respondent No.1 and 2 (plaintiffs) and deceased defendant No.1 Vanmala and respondent No.4 and

5 were the only legal heirs of Prabhudayal and after the death of Prabhudayal, on opening the bank locker the will executed by Prabhudayal in

respect of suit house in favour of respondent No.1 and 2 was found by which the deceased defendant No.1 was not given any share in the suit

property. The will was executed on 20th July, 1983 and was registered on the basis of which the respondent No.1 and 2 had claimed title.

Alternatively it was pleaded that if the will is not proved, then being the legal heirs the respondent No.1 and 2 were entitled to get the property

partitioned and get possession of their share. It was further pleaded that after the death of Prabhulal deceased defendant No.1 Vanmala had taken

illegal possession of the suit property and by executing a forged agreement in the name of Prabhudayal, the deceased defendant No.1 Vanmala

had given possession to the present appellants whereas no such sale agreement was executed by Prabhudayal in favour of the appellants.

The suit was opposed by the deceased defendant No.1 Vanmala by filing the written statement and taking the plea that 3/4 of the suit house was

sold by Prabhudayal to the appellant No.1 Smt. Aruna and remaining 1/4 was given by way of will to Vanmala. Subsequently in pursuance to the

sale agreement after receiving the consideration amount possession was given by her to the appellant Smt. Aruna.

The suit was also opposed by appellant No.1 (defendant No.5) by filing the written statement and taking the plea that Prabhudayal during his

lifetime had executed the sale agreement and had received the consideration amount and delivered the possession of the part of the suit house to

the appellant No.1 and after his death the deceased defendant No.1 Vanmala had received the remaining amount and had handed over the

possession of the rest of the portion of the house.

No written statement was filed by the defendant No.2,3 and 4 (appellant No.2) and they were proceeded ex-parte.

The trial court by the judgment dated 28/1/2000 had decreed the suit filed by respondent No.1 on reaching to the conclusion that the will

Ex.P/2 executed by Prabhudayal in favour of respondent No.1 and 2 (plaintiffs) in respect of the suit house has duly been proved. While arriving at

the conclusion the trial court has considered the statements of the witnesses of the will namely PW-3 Mohanlal and PW-4 Chandmal and as also

the evidence of the scribe of the will PW- 5 Umeshchandra Maheshwari and has reached to the conclusion that the will has duly been proved in

accordance with the requirement of the Indian Succession Act. The will has been found to be genuine and above suspicion and by this will the suit

house was bequeathed by Prabhudyal in favour of respondent No.1 and 2. The trial court has also found that though the deceased defendant No.1

Vanmala had raised a plea that the will in respect of 1/4 portion of the house was executed in her favour by Prabhudayal, but no such will was

produced or proved. The agreement to sell Ex.D/3 on which the appellants were placing reliance upon has not been found to be proved, and,

therefore, the trial court has held that the appellants are not entitled to the protection u/S.53-A of the Transfer of Property Act. Since the

respondent No.1 and 2 are found to be the owner of the suit house and possession of the appellants is found to be without any authority of law,

therefore, the trial court while passing the decree has directed the appellants to handover the possession of the suit house to respondent No.1 and

2 and has also granted mesne profit @ Rs.5000/- per month from the date of filing of the suit till the receipt of the possession.

Learned counsel for appellants has confined his argument to the finding of the trial court denying the protection to the appellants u/S.53-A of

Transfer of Property Act and has submitted that the agreement Ex.D/3 has already been exhibited, therefore, the objection relating to non

registration and non payment of stamp duty cannot be raised and that Ex.D/3 contains full description of the property and trial court has committed

an error in holding that Ex.D/3 is not proved. He further submits that since entire consideration amount has been paid by the appellants in

pursuance to the agreement, therefore, they are entitled to protection under the Act.

As against this, learned counsel for respondents supporting the impugned judgment has referred to the written statement, the contents of Ex.D/3,

D/4 and other documentary and oral evidence and has submitted that no error has been committed by the trial court in holding that the execution of

Ex.D/3 is not proved and protection u/S.53-A cannot be extended.

I have heard the learned counsel for parties and perused the record.

U/S.53-A of the Transfer of Property Act, on satisfaction of certain conditions, a party in possession of the property in part performance of

the contract is entitled for protection.

The supreme court in the matter of Nathulal Vs. Phoolchand AIR 1970 SC 546 while considering the scope of Sec.53-A of the Act has

enumerated the conditions which are required to be satisfied for seeking the protection as under:-

9-- The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:

[1] that the transferor has contracted 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;

[2] that 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;

[3] that the transferee has done some act in furtherance of the contract; and

[4] that the transferee has performed or is willing to perform his part of the contract.

If these conditions are fulfilled 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 is debarred from enforcing against the transferee 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.

In the present case, undisputedly Prabhudayal is the original owner of the suit property. The appellant No.2 had not filed any written statement

in the suit and he remained ex-parte before the trial court. So far as appellant No.1 (defendant No.5) is concerned, the minute perusal of the

written statement filed by her reveals that she had not disclosed the relevant particulars of the agreement such as date of its execution, the

consideration agreed, the amount of part consideration paid or the other conditions of the agreement. It is also worth noting that the agreement

Ex.D/3 had seen the light of the day only on 29/1/1997 when it was produced at the stage of cross examination of the plaintiff. The sale agreement

Ex.D/3, though has been exhibited, but is neither registered nor stamped. This agreement was said to have been executed by Prabhudayal on

4/2/1983 and Prabhudayal had died on 27/6/1986, but during his lifetime no attempt was made to get the sale deed executed on this basis. Even

this agreement states that possession of 1/4 portion of the suit house will be given by Vanmalala; deceased defendant No.1 and she was authorised

to execute the sale deed, but the original record reveals that Vanmala had filed CS No.12/1983 on 21/6/1983 against Prabhudayal and Ex.D/4 is

the reply to the application for temporary injunction filed by Prabhudayal along with the affidavit subsequently stating that he was the sole owner of

the suit property and deceased defendant No.1 Vanmala had no right in that and in fact Vanmala was extending threat of life to Prabhudayal. This

reply which was later in point of time itself belies the execution of any such agreement Ex.D/3 by Prabhudayal in favour of appellant No.1 or

execution of will of 1/4 share of suit house in favour of deceased defendant No.1 Vanmala.

It is the settled position in law that the trial court has the advantage of adjudicating the demeanor of the witnesses and the finding arrived at by

the trial court on the basis of the oral testimony of witnesses should not be lightly interfered in appeal.

A perusal of the impugned judgment passed by the trial court reveals that the oral testimony of the witnesses have been minutely appreciated

by the trial court. The appellants and the defendant No.1 had failed to clearly state before the trial court as to when the agreement was executed,

how much was the consideration amount, the dates of payment of consideration amount and the dates on which the remaining consideration

amount was paid. The trial court has rightly noted that the statement of appellant No.1 and deceased defendant No.1 Vanmala are conflicting in

this regard. The appellants have failed to disclose on what date possession of 3/4 portion of the suit house was delivered to them and on what date

the possession of remaining 1/4 portion was given. In the written statement of appellant No.1 also these details are missing. The trial court has

rightly noted that the precise particulars in this regard relating to the time and certainty of execution of sale deed are also missing in the agreement.

Even as per the agreement, Prabhudayal had sold 3/4 portion of the suit house, but which 3/4 portion, even that was not certain. It is also worth

noting that as per Ex.D/3,1/4 portion is sought to have been received by deceased Vanmala by way of will, but no such will has been produced or

proved. The record further reveals that in the civil suit filed by Vanmala application Ex.D/9 was filed by Prabhudayal under his signature again

declaring that Vanmala had no right in the suit house. The absence of the mention of the sale agreement in all these documents, applications and

affidavits executed by Prabhudayal later in point of time, creates suspicion in respect of the execution of Ex.D/3. In respect of the issue of

possession of the suit house, in the written statement appellant No.1 has stated that she is in possession of 3/4 portion of the suit house since 1983

whereas the plea of deceased defendant Vanmala is that the possession of appellant No.1 is since 1986, as against this in the notice dated 20th

August, 1986 given by Vanmala to the plaintiffs, she had claimed herself to be in exclusive possession of the suit house. Same was the position

reflected in the notice dated 27/8/1986 published by Vanmala. The rebuttal notice Ex.P/3 was published by the plaintiffs claiming themselves to be

the owner. There was no mention of agreement Ex.D/3 in these notices, publication etc which also supports the finding of the trial court in respect

of doubtful existence of Ex.D/3. The existence of Ex.D/3 has been denied by the plaintiffs witnesses and the signature of Prabhudayal on Ex.D/3

have also been denied. Even while cross examining the plaintiffs witnesses Satyanarayan and Balkishan no suggestion was given by the appellants

in respect of receipt of consideration amount mentioned in the agreement Ex.D/3. The trial court has also rightly noted that the appellants are the

businessmen having partnership in Arun Prem Pharmaceuticals and they could not have paid the cash consideration amount of rupees three lakhs in

the absence of their own witnesses. Only a chance witness Paraksha, a young boy of 18 years has been examined in this regard. No documents

such as bank account, income tax return etc. has been produced by the respondents to prove the payment of consideration amount mentioned in

Ex.D/3 nor any document is filed by the appellants disclosing the factum of disclosure of suit house to the tax authorities. It is also worth noting that

Prabhudayal was alive till 1986 and Vanmala was alive till 1991, but during their life time no right was asserted by the appellants on the basis of

alleged agreement Ex.D/3. In these circumstances, the trial court has rightly reached to the conclusion that the execution of the agreement Ex.D/3

has not been proved.

Not only this, the appellants have failed to prove that they had paid the consideration amount in pursuance to the agreement Ex.D/3 or the

possession was delivered to them in part performance of the said agreement or they had not done anything in furtherance of the contract or they

had performed or willing to perform their part of the contract. Though the possession of the appellants on the suit house has been proved, but the

appellants had failed to prove that the possession was received by them in pursuance to the agreement to sell. Hence, the trial court has not

committed any error in reaching to the conclusion that the appellants are not entitled to the protection u/S.53-A of the Transfer of Property Act.

In these circumstances, the trial court has rightly passed a decree directing the appellants and the other defendants to hand over the vacant

possession of the suit house and also to pay mesne profit. Hence, no ground is made out to interfere in the judgment of the trial court.

The appeal is accordingly dismissed.