Smt. Basanti Bai vs Sri Prafulla Kumar Routrai And Ors
By: Viraj Khemani
101 (2006) CLT 685
FACTS OF BASANTI BAI V. PRAFULLA ROUTRAI & ORS.:
The plaintiff desired to purchase a plot from the defendant for constructing a house. But later finding he found that there was no road to that land, she wanted to buy the land out of another plot to use it to approach road. Later the defendant agreed and entered into an agreement to sell the suit land to plaintiff for a consideration of Rs. 1500/-. It was to be received Rs. 750/- as advance part consideration and land would be settled in defendants favour when plaintiff will pay that receiving the rest amount of Rs. 750/- and sale deed will be executed thereon.
Then plaintiff raised some construction build wall on a portion of the suit land leaving aside the northern side of house to be used to approach road. Then other defendant No. dumped some boulders on the suit land and tried to demolish the structure of the plaintiff on plot. On enquiry the plaintiff learnt that defendant in collusion with other defendants has executed two separate sale deeds in favour of other defendants selling, where he sold land to them. So, plaintiff decided to file a suit.
1.Whether the defendant is liable for specific performance of the property in suit?
2. Whether there is case for frustration of the contract?
3. Whether the Trial Court wrongly interpreted Section 53-A of the Transfer of Property Act in deciding that the agreement is not being in writing so is not enforceable?
The other two defendants in their written statement denied the allegation of the plaintiff and pleaded that they purchased the land from defendant as bona fide purchasers and thereon derived right and title over the same. They denied that there was ever agreement between the plaintiff and defendant for the suit land and pleaded that plaintiff never ever in possession of the suit land. Defendant in his written statement denied that there was any agreement between them for sale of the land and that he received Rs. 750/- from the plaintiff.
After considering the facts, circumstance and evidence presented by both the parties the Trial Court held that there was no agreement between the plaintiff and defendant as alleged and the plaintiff is not entitled to any specific performance of contract. The Trial Court further held that the sale of the suit land in favour of other two defendants are legal, genuine and for valid consideration and as such, those sales are valid in eyes of law.
Challenging the order of the Trial Court, the plaintiff filed appeal before the Add. District judge. During pendency of the appeal, defendant died leaving behind no legal heir and so his name was struck off. The Add. District Judge after consideration of the available materials on record held that after the death of defendant-respondent, specific performance of contract
cannot be made enforceable. So appellant appeal was dismissed. So the appellant filed an appeal before the High court.
The counsel for the appellant argued that the Trial Court misread the evidences presented and the provisions of law and arrived at wrong conclusions. He alleged that the agreement became unenforceable after the death of defendant.
A Court of Second appeal cannot re-assess the evidences presented on record. It can only examine whether the Courts below acted with material irregularity or in excess of jurisdiction while exercising their powers vested in them.
The plaintiff-appellant pleaded that she had an agreement with the defendant for the sale of the land and based on an agreement she paid advance of Rs. 750/- and took over possession of the land and raised construction.
But she could not produce any document regarding the agreement or any receipt of payment of Rs. 750/-. The plan of the house of the appellant revealed that the house of the appellant faced towards the road on the southern side. So there was no need to construction of road. The Trial Court and the Appellate Court cannot be said to be wrong in their findings.
But no contract in writing was available and no evidence was also there to prove the existence of contract. So Courts below cold not provide any protection to the appellant under Section 53- A of the Transfer of Property Act.
The court held that if the contract is legal and enforceable, then even if one of the parties to contract dies leaving behind no heir, any persons, who acquires interest over the subject matter of contract though that deceased party will be bound by the contract and specific performance can be enforced against that person. However, the appellant failed to establish existence of the agreement. So the suit of the appellant was dismissed by the High Court.
LEGAL ASPECT OF LAW INVOLVED:
Doctrine of Part Performance of Contract
Doctrine of Part Performance of Contract is contained in Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as ‘TPA’). Section 53-A of the TPA was added to the statute book in the year 1929 and is a modified form of the equity principle of part performance which got developed in England in the case of: Elizabeth Maddison V/s John Alderson, (1883) .The following postulates are sine qua non for basing a claim on Section 53-A of the TPA:
1.There must be a contract to transfer for consideration any immovable property. 2.The contract must be in writing signed by the transferor, or by someone on his behalf.
3.The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
4.The transferee must in part performance of the contract take possession of the property, or, of any part thereof.
5.The transferee must have done some act in furtherance of the contract. 6.The transferee must have performed or be willing to perform his part of the contract.
It is settled law that Section 53-A of the TPA confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract.
Scope of Doctrine of Part Performance
The Doctrine of Part Performance is applicable to only written and valid contract. It is not applicable to oral or void agreement. The contract must be in writing and signed by the transferor. The transferee has taken possession of the property as a part performance of a contract and transferee must be ready and willing to perform his part of promise. This section is applicable not only to the contract of sale but it is applicable to all such contracts of transfer for consideration. It has been held in Jacobs Private Limited vs. Thomas Jacob that the doctrine is intended to be used as a shield, not a sword.
Edited by Megha Jain