PETITIONER:
RANCHHODDAS CHHAGANLAL
Vs.
RESPONDENT:
DEVAJI SUPADU DORIK AND ORS.
DATE OF JUDGMENT17/01/1977
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SINGH, JASWANT
CITATION:
1977 AIR 1517 1977 SCC (3) 584
ACT
Transfer of Property Act, 1882--Sec. 53A--Doctrine of
part performance-Whether transferee should be ready and
willing to perform--Indian Penal Code--Finding without
issue-- Not sustainable--Cross objection--If judgment can be
challenged by respondent without filing cross objection.
Article 133 of Constitution--Practice and
procedure--Objection about validity of grant of
certificate--To be raised at what stage.
HEADNOTE
The appellant agreed to sell certain land to the re-
spondents by an agreement for sale entered into between the
parties for Rs. 17,000/-. The respondent was put in posses-
sion pursuant to the said agreement after Rs. 12,000/were
paid. He failed to pay the balance of Rs. 5,000/- in spite
of demand by the appellant The appellant filed a suit for
possession of the land and, in the alternative, for a decree
for Rs. 5,000/- with interest.
The respondent contended that the agreed price was Rs.
12,000/- which was already paid and that, therefore, Rs.
5,000/- were not payable. The respondent contended that if
the court came to the conclusion that Rs. 17,000/- was the
agreed price .then the Court should take into account cer-
tain amount which was already paid by the respondent.
The Trial Court decreed the appellant’s suit for posses-
sion and came to the conclusion that the agreed price was
Rs. 17,000/-. The High Court in an appeal confirmed the
finding of the Trial Court that the agreed price was Rs.
17.000/-. The High Court, however, granted the decree of
Rs. 5,000/with interest but refused the prayer for posses-
sion.
Allowing the appeal,
HELD: (1) The respondent was never ready and willing to
perform the agreement as alleged by the appellant. One of
the ingredients of part performance under s. 53A of the
Transfer of. Property Act is that the transferee has taken
possession in part performance of the contract. In the
present case. there was no performance in part by the
respondent of the contract between the parties. The doc-
trine of part performance is a defence. It is generally not
a sword but a shield. The act of part performance must be
such as not only to be referable to a contract such as that
alleged but to be referable to no other title Section 53A
requires a positive act of readiness and. willingness on the
part of the transferee to perform the agreement. [624 A-E]
(2) The High Court wrongly found that there was an
extension of the performance of the contract by one year.
There was no issue raised on that point. It is well
settled that there should be specific issues on questions of
fact. The contention that the appellant could not put an end
to the contract if there was failure on the part of the
respondent to perform the agreement fallacious. [624
F-G]
(3) It was not open to the respondent to challenge the
finding of the High Court that the agreement was for Rs.
17000/-. The respondent can certainly support the judgment
on any ground which is open to him under ’the impugned
judgment. The respondent did not file any Cross-objection
on the finding in the judgment of High Court about the price
of the agreement. It is therefore, not open to him to
challenge the finding. [623 G-H]
622
(4) The contention of the respondent that certificate
was not competent because the value all along had not been
over Rs. 20,000/- cannot be allowed to be taken at the late
stage. If the respondent had taken this point at the time
when the matter was heard in the High Court the appellant
could have satisfied the High Court. Such a plea was not’
raised even in the statement o! case. [623 D-F]
State of Assam and lint. etc. v. Basanta Kumar Dass etc.
etc. [1973] SC.R. 158, followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 945 of 1972.
(From the Judgment and Decree dated 15-10-1969 of the
Bombay High Court in First Appeal No. 420/63).
V.M. Tarkunde, P.H. Parekh and Miss Man]u Jetlay, for
the appellant.
Sharad Manohar and Suresh Sethi, for the respondents.
The Judgment of the Court was delivered by
RAY, C.J. This appeal is by certificate from the
judgment dated 15 October 1969 of the Bombay High Court in
First Appeal No. 420 of 1963.
The trial court by its judgment dated 24 June 1963
decreed the suit in favour of the appellant. The High Court
reversed the judgment of the trial court.
The pre-eminent question in this appeal is whether the
respondent has been ready and willing to perform the agree-
ment entered into with the appellant. The case of the
appellant is that there was an oral agreement for sale of
property consisting of agricultural land admeasuring 23
acres approximately for a sum of Rs. 17000/-. The respond-
ent from time to time paid Rs. 12000/- to the appellant.
The respondent was also in possession of the property. The
appellant called upon the respondent to pay the full amount
of purchase price. The respondent failed to. do so. The
plaintiff, on respondent’s refusal to perform the’ agree-
ment, flied the suit.
In the suit the reliefs claimed were possession of the
property and in the alternative a decree for Rs. 10,500/-
consisting of the principal sum of Rs. 5000/- as the balance
amount of purchase price and interest thereon amounting to
Rs. 5500/-.
The principal defence was that the agreement for sate
was only for Rs. 12000/-. and that the respondent paid the
amount in full. The respondent characterised the suit as
’mean effort to recover illegally the additional price of
the ostensible Rs. 5000/-’. The respondent also alleged
that if the Court decided that the price of the property was
agreed to be Rs. 17000/-, then the respondent would ask
the Court to take into account the sum of Rs. 12000/- paid
by him and also the sum of Rs. 1500/- paid by him from time
to time thereafter.
623
At the trial one of the issues was whether the appellant
proved that the respondent entered into a ’Sauda’ on 24
January 1952 with the appellant’s father to purchase for
Rs.7000/- the properties mentioned in Schedule ’A’ to the
plaint. The other issues were the defendant-respondent
proved that the properties were agreed to be purchased for
Rs.2000/-. A corollary to the issue raised in the written
statement was whether defendant proved the circumstances in
which it was made to appear that the ’Sauda’ was for Rs.
17000/-. In short the defendant alleged fraud against
the appellant. The charge is that the appellant changed
the figure to Rs. 17000/-. The trial court held in favour
of the appellant and rejected the defence of the respondent.
Counsel for the respondent contended that the suit of the
appellant was not maintainable. It was said that the appel-
lant was not competent to maintain the suit by reason of
provisions contained in sections 39 and 55 of the Indian
Contract Act. The gist of the contention is that the appel-
lant could not put an end to the contract if there was
failure on part of the respondent to perform the agreement.
The submission is fallacious. The case of the appellant has
always been that the respondent refused to perform the
agreement. The appellant all along asserted that the agree-
ment was that the property was agreed to be sold only for a
sum of Rs. 17000/-. The respondent refused to Perform the
agreement. The suit therefore was competent and valid.
Another contention was raised by the respondent that the
certificate was not competent because the value all along
has not been over Rs. 20000/-. This Court has held in the
decision in State of Assam and Anr. Etc. v. Basanta Kumar
Dass Etc. Etc. reported in 1973 ’ (3) S.C.R. 158 at page
168 that the objection to valuation cannot be allowed to be
taken at this late stage. But the graver objection to the
respondent not being allowed to challenge the certificate is
that if the respondent had taken this point at the time when
the matter was heard in the High Court the appellant could
have satisfied the High Court or the appellant would have
failed. This Court in any event, if a certificate had been
granted on a challenge being made, would have been in pos-
session of facts and the judgment of the High Court on that
question. That is the main reason why the respondent should
not be allowed to challenge the certificate at this stage.
The respondent has also not raised such a plea in the state-
ment of case.
The remaining question is one of substance and is the
real issue. It is whether the agreement has been performed.
Counsel for the respondent submitted that it was open to
the respondent to contend that the finding of the High Court
that the agreement was for Rs. 17000/- should not be
accepted. Counsel for the appellant rightly challenged
the competency of such an objection. The respondent can
certainly support the judgment 0 many ground which is open
to him under impugned judgment. The judgment is that the
agreement was between the parties, and that the sale price
was Rs.17000/-. The respondent did not file any cross
objection on the finding in judgment on that point. It is
therefore not open to the respondent to challenge that
finding.
624
The principal hurdle in the way of the respondent is
that the respondent has never been ready and willing to
perform the agreement, as alleged by the appellant. The
respondent alleged that the consideration for purchase was
Rs. 12000/-. The respondent has never been ready and will-
ing to perform the agreement alleged by the appellant. The
respondent relied on the doctrine of part-performance. One
of the limbs of part performance is that the transferee has
in the part performance of the contract taken possession of
the property. The most important consideration here is the
contract. The true principle of the operation of the acts of
part performance seems to require that the acts in question
must be referred to some contract and must be referred to
the alleged one; that they prove the existence of some
contract, and are consistent with the contract alleged. The
doctrine of part performance is a defence. It is a sword
and not a shield. It is a right to protect his possession
against any challenge to it by the transferor contrary to
the terms of the contract. The appellant is right in the
contention that there was never any performance in part by
the respondent of the contract between the parties.
In Fry on Specific Performance, Sixth Edition, at page
276 it is stated ’that "the acts of part performance must be
such as not only to be referable to a contract such as that
alleged, but to be referable to no other title; and that the
acts relied upon as part performance must be unequivocally
and in their own nature referable to some such agreement as
that alleged".
The High Court found that the respondent performed in
part the agreement alleged by the appellant. It has been
said by the appellant that the High Court should have appre-
ciated that Section 53-A requires a positive act of
readiness and willingness on part of the transferee to
perform the agreement. In the present case the respondent
who was the transferee under the agreement did not perform
his part of the contract from 1952 till 1963 that is after
the judgment was pronounced by the trial court. The High
Court wrongly found that there was an extension of the
performance of contract by one year. There was no issue
raised on that point. It is well settled that there should
be specific issues on-questions of fact. Parties did’ not
go to trial on that question and there the High Court was in
error in holding that there was an extension of time for
performance of’ the contract. It is therefore erroneous to
say as the High Court did that the respondent can take
advantage of the period between 1953-54.
Some attempt was made by counsel for the respondent that
there was an admission by the appellant’s father that the
purchase price was Rs. 12000/-. This contention cannot be
accepted in view of the finding of the. High Court that the
purchase price was Rs. 17000/-.
One of the questions in the High Court was there should
be no award of interest on the sum of Rs. 5000/- which had
been paid. The High Court rightly allowed interest at the
rate of 6 per cent per annum. We are told the amount of Rs.
5000/- has been deposited in the High Court.
625
For the foregoing reasons we are satisfied that the
decree passed by the trial court was correct and the High
Court was in error in reversing the decree. The High Court
should not have reversed the decree particularly when it was
found that the respondent failed first in regard to the
agreement alleged by the defendant and second in allow-
ing the decree in favour of the respondent on the plea of
part performance of a contract Which was never pleaded by
the defendant/ respondent and was not a contract upon which
there could be any performance in part.
The appeal is therefore accepted. The Judgment of the
High Court is set aside. The judgment of the trial court is
restored. Parties will pay and bear their own costs in this
Court and the High Court.
The respondent will be at liberty to withdraw Rs.
5000/- deposited in the High Court.
P.H.P.
Appeal allowed.
626