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Synopsis

The Supreme Court has said that Section 53-A of the Transfer of Property Act must be strictly construed for it is an exception to the provisions which require a contract to be in writing and registered and which bar proof of such contract by any other evidence.

A bench of Justices J B Pardiwala and R Mahadevan pointed out that Section 53-A of the Transfer of Property Act was inserted partly to set at rest the conflict of views in the country, but principally for the protection of ignorant transferees who take possession or spend money in improvements relying on documents which are ineffective as transfers or on contracts which cannot be proved for want of registration.

"The effect of this Section, is to relax the strict provisions of the Transfer of Property Act and the Registration Act in favour of transferees in order to allow the defence of part performance to be established," the bench said.

The court pointed out that 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 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;

(b) 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;

(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.

"In terms of this provision, if these preconditions 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 than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, 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," the bench said.

The court dismissed a special leave petition filed by Giriyappa and another against the Karnataka High Court's order of August 23, 2024 in a regular second appeal.

The High Court had dismissed the appeal filed by the petitioners (original defendants) and affirmed the judgment and order passed by the first appellate court and also the judgment and decree passed by the trial court.

Kamalamma and others, respondents (original plaintiffs) had instituted the original suit for declaration of title and recovery of possession.

In the apex court, the petitioners contended that the respondents (original plaintiffs) might be the lawful owners of the suit scheduled property but they executed a sale agreement on November 25, 1968 in their favour agreeing to sell two guntas of land out of survey No.24/9 for total consideration of Rs 850 and since then they came to be in possession and its enjoyment.

In the case, the High Court had noted that the defendant had failed to prove that plaintiff had executed the sale agreement in 1968 and put the defendant in possession and enjoyment of the same. On the other hand, the high court had held that the plaintiff had proved that the shed in the suit scheduled property which measured one gunta was constructed by him during 1982-83 and during 1983-84, the defendant illegally occupied the same.

Earlier to that he had also approached the Land Tribunal, Tumakuru, claiming occupancy rights and it came to be dismissed on May 15, 1987 and it has attained finality. The findings returned by the trial court as well as the first appellate court are consistent with the oral and documentary evidence placed on record and as such, this court finds no perversity in the same, the High Court had said.

Thus, on failure to prove execution of the sale agreement, question of providing protection under Section 53A of the TP Act does not arise, the High Court had further held.

The apex court, accordingly, held, "We are of the view that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned judgment and order".

Case Title: Giriyappa & Anr Vs Kamalamma & Ors