PETITIONER:
SHANKAR GOPINATH APTE
Vs.
RESPONDENT:
GANGABAI HARIHARRAO PATWARDHAN
DATE OF JUDGMENT25/08/1976
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.
CITATION:
1976 AIR 2506 1977 SCR (1) 411
1976 SCC (4) 112
ACT
Transfer of Property Act (4 of 1882), s. 53A, Indian
Easements Act (5 of 1882), s. 60 (b), and Indian Contract
Act (9 of 1872), s. 221--Scope of.
HEADNOTE
Practice and Procedure--High Court’s duty to give rea-
sons even in cases of summary dismissal.
The respondent executed a power of attorney in favour of
the appellant, which ex-facie showed that it was to be
effective for a period of one year and that it was executed
to enable the appellant to manage the respondent’s lands.
The appellant immediately thereafter wrote a letter to the
respondent agreeing to undertake the duties specified in the
power of attorney and to pay her a sum of Rs. 2,000 annually
from the income of the lands. He was to retain the rest of
the income as his "honorarium". The appellant then obtained
possession of the lands from a person who was in unautho-
rised occupation, and continued in possession of the
property from year to year paying at intervals, the agreed
sum of Rs. 2,000. He then got his name entered in the
record of rights as a tenant of the respondent, and gave
notice to the respondent that, being ,a tenant, he had
acquired a statutory right to purchase the lands under the
Bombay Tenancy and Agricultural Lands Act. The respondent
thereupon filed a suit for the recovery of the amount that
may be found due to her from the appellant on taking ac-
counts, and for an injunction restraining the appellant from
obstructing her in the enjoyment of the property. Alterna-
tively,she prayed for a decree for possession of the lands.
As the Civil Court had no jurisdiction to decide the
respondent’s claim because of the appellant’s claim to be
her tenant, the issue of tenancy was referred to the Tehsil-
dar under s. 85-A or the Bombay Tenancy Act. The proceed-
ings under this section came to an end after the appellant
carried his contention unsuccessfully from the Tehsildar to
the Supreme Court. The appellant then sought to amend his
written statement by incorporating the plea that he was in
possession of the lands, in part performance of an agreement
of sale between himself and the respondent, and that there-
fore he was entitled to defend his possession under s. 53-A,
Transfer of Property Act, but the application for amendment
was rejected. The suit was then decreed giving possession
of the lands to the respondent with a direction to the
appellant to pay a sum of Rs. 4390 to the respondent. The
appeal to the High Court was dismissed summarily.
In appeal to this Court, it was contended.
(1) that the power of attorney executed by the respond-
ent in favour of the appellant was a sham and colorable
document, its real object being to put the appellant in
possession as a potential purchaser, and that therefore s.
53-A Transfer of Property Act is applicable,
(2) that the appellant must, in any event, be deemed to
be a licensee of the respondent protected under s. 60(b),
Easements Act, 1882, since he had executed works of a perma-
nent character on the lands involving heavy expenses;
(3) that possession of the lands should not have been
awarded to the respondent along with its valuable improve-
ments without compensating the appellant for their value;
and
(4) that the decree for Rs. 4390 should not have been passed
as there was question of accountability.
412
Dismissing the appeal,
HELD: (1) In matters involving construction of written
instruments where rival interpretations have more than mere
plausibility, the High Court ought to give a brief statement
of reasons even while dismissing the appeal summarily. In
the instant case, the High Court had called for the record
to verify whether the decree of the trial court was legal
and proper. Therefore, a brief statement of reasons should
have been given by the High Court saving the Supreme Court
from considering the pleading and evidence for itself. [415
D-E]
(2) The appellant is not entitled to protect his posses-
sion under s. 53-A, Transfer of Property Act. [415 G]
(a) The application for amendment of his written statement
was belated;
[415 G]
(b) the conditions of the section were not satisfied.
[416 D]
(i) There was no written contract at all as required by
the section. A letter written by the respondent’s brother
to the appellant could not be so construed as at best, it is
written evidence of a contract for sale but not the
written contract for sale itself. [416 C]
(ii) The terms necessary to constitute the transfer
cannot be ascertained with reasonable certainty from the
letter; and the appellant was not put in possession in part
performance of the contract. He obtained possession under
the power of attorney as an agent and there is nothing to
show that the character of his possession ever changed to
that of a potential purchaser. He continued to remit off
and on, the agreed sum of Rs. 2,000 to the respondent which
is entirely inconsistent with his character as a potential
purchaser of the lands. [416 D]
(c:) Though the recital in the power of attorney that
the respondent was herself in possession of the property was
not consistent with the true facts, and the real object of
the power of attorney was to enable the appellant to obtain
possession of the lands from persons in unauthorised posses-
sion, it could not be said that the power of attorney was a
sham and colourable document. In fact, it was acted upon,
because, immediately after its execution the appellant
wrote a letter, which had become part and parcel of the
power of attorney, accepting its terms. Assuming that the
power of attorney is a sham and colourable document, the
appellant can claim no right except the two rights which he
had claimed, namely, as a tenant as a prospective purchaser.
But these rights were negatived. [416 H; 417 C-D]
(3) The argument that the appellant was a licensee is
based upon the assumption that the power of attorney was a
nominal document. But in view of the finding, that it was
intended to be acted upon and was in fact acted upon, this
argument has no basis. Moreover, there, is no evidence as
to what improvements were made or what expenses were in-
curred by the appellant. Assuming that the appellant exe-
cuted some work of a permanent character, it could not be
said that he did so "acting upon the licence", as required
by s. 60(b), Easements Act. He must have done it not as a
licensee, but in the belief that he was a tenant and would
become a statutory purchaser, or that he could implement the
alleged oral agreement for sale. [417 E-F]
(4) (a) No issue that possession with improvements
should not be given to the respondent was raised. [418 B]
(b) In neither of the two capacities he put forward,
namely, tenancy and possession in part performance, could he
claim the value of improvements alleged to have been made by
him. [418 C]
(c) The amounts said to have been spent by the appel-
lant, without any reference whatsoever to the respondent,
cannot also be recovered under s. 221 of the Contract Act,
on which the appellant sought to rely, as that section does
not in terms apply. [418 E]
(5) The decree for Pa. 4390 does not suffer from any
infirmity because the contention of the respondent in sub-
stance was that the appellant had failed to pay the agreed
sum of Rs. 2000 to her for certain years. [418 A]
413
JUDGMENT
CIVIL APPELLATE JURISIDICTION :--Civil Appeal No. 467 of
1976.
(Appeal by Special Leave from the Judgment and Order
dated 6-2-1975 of the Bombay High Court in First Appeal
No.13/75).
B.D. Bad, S.B. Wad and Mrs. L Wad, for the appellant.
U.R. Lalit, P.H. Parekh and Miss Manju Jetley for the
respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. This appeal by special leave arises out
of an order dated February 6, 1975 of the Bombay High Court
dismissing First Appeal No. 13 of 1975 summarily. That
appeal was filed by the appellant, Shankar Gopinath Apte,
against the decree passed by the learned II Joint Civil
Judge, Senior Division, Poona in Special Civil Suit No. 107
of 1968. That suit was filed by the respondent, Gangabai
Hariharrao Patwardhan to recover the amount that may be
found due to her on taking accounts from the appellant and
for an injunction to restrain the appellant from obstructing
her in the enjoyment of the suit property. Alternatively,
the respondent prayed for a decree for possession of the
suit lands.
The suit property consists of 3 agricultural lands
bearing Survey Nos. 98/1-1, 98/1-2 and 99, admeasuring in
all 54 acres and 20 gunthan. The lands are situated in a
village called Kiwale in Pune district.
These lands belonged originally to the respondent’s
husband who died on February 20, 1960 leaving her as his
sole heir. On December 29, 1961 a power of attorney was
prepared for being executed by the respondent in favour of
Western India Trustee and Executor Co. Ltd., Satara. The
object of the power of attorney, as expressed therein, was
inter alia, to authorize the Company to collect the income
of the land and to take steps for disposing of the land by
sale. But for some reason or the other the document remained
unexecuted. On February 1, 1963 the respondent executed a
power of attorney in favour of the appellant. The true
nature of this document and its real purpose are both in
dispute but ex-facie, the document was to be effective for a
period of one year and was executed in order to enable the
appellant to manage the respondent’s lands and to arrange to
cultivate them. By a letter dated March 3, 1963 addressed
to the respondent, the appellant agreed to undertake the
duties specified in the power of attorney and to pay to her
a sum of Rs. 2000 annually from the net income of the lands.
The rest of the income, according to the letter, was to be
retained by the appellant for his "honorarium".
Within two or three weeks of the execution of the power
of attorney, the appellant succeeded in obtaining possession
of the lands from one Nathuram Agarwal on payment of a sum
of Rs. 9300. Nathuram, it appears, had come to be in posses-
sion of the lands through one Motiram who was a tenant of
the respondent but who was unable to meet his commitments
under the terms of the tenancy. The appellant continued in
possession of the property from year to year on payment, at
intervals, of the agreed sum of Rs. 2000 per annum. On
January 1, 1967 the appellant’s name, on an application made
by him, was entered in the
414
record of rights as a tenant of the respondent; In February,
1968 appellant gave a notice to the respondent under section
32-0 of the Bombay Tenancy and Agricultural Lands Act stat-
ing that, being a tenant of the lands, he had acquired a
statutory right to purchase the lands and that he was will-
ing to exercise that right. Respondent disputed the appel-
lant’s claim by her reply of February 26 and after an ex-
change of further notices, respondent filed the present suit
on May 3, 1968.
By his written statement dated October 16, 1968 the
appellant raised various technical contentions but his main
defence to the suit was that he was in possession of the
lands as a tenant of the respondent and in view of the
provisions of the Bombay Tenancy Act, the Civil Court had no
jurisdiction to entertain the suit. The appellant contended
that the power of attorney was executed by the respondent in
his favour solely in order to enable him to obtain posses-
sion of the lands from Nathuram and that, otherwise, it was
a sham document, a mere cloak for inducting him on the land
by evicting an unauthorized occupant.
Several issues were struck by the trial court on these
pleadings but it is only necessary to state at this stage
that since the main issue in the suit was whether the appel-
lant was in possession of the lands as a tenant of the
respondent, the Civil Court had no jurisdiction to decide
the respondent’s claim for possession and had to refer the
issue of tenancy to the Tahsildar under section 85-A of the
Bombay Tenancy Act.
The Tahsildar decided the issue against the appellant
holding that he was not a tenant of the respondent. That
finding was confirmed in appeal by the Collector but the
Maharashtra Revenue Tribunal, allowing a revision applica-
tion filed by the appellant, differed from the concurrent
finding of fact recorded by the authorities below and held
that the appellant was in possession of the lands as a
tenant of the respondent. The judgment of the Tribunal was
set aside by the Bombay High Court in Special Civil Applica-
tion No. 1430 of 1971. The High Court held that the appel-
lant was in possession of the lands as an agent of the
respondent under the power of attorney and that the Tribunal
was in error in upsetting the finding of the Collector and
the Tahsildar that the appellant was not a tenant of the
respondent. The appellant’s application for leave to appeal
to this Court was dismissed by the High Court and the peti-
tion for special leave filed in this Court met with the same
fate. The proceedings under section 85-A of the Bombay
Tenancy Act ended sometime late in 1972.
Thereafter, on December 4, 1972 the appellant filed an
application in the trial court for amendment of his written
statement seeking leave to plead that he was in possession
of the lands in part performance of an agreement of sale
between himself and the respondent and that therefore he was
entitled to defend his possession under section 53-A of the
Transfer of Property Act. That application was opposed by
the respondent and was dismissed on April 13, 1973. The
appellant filed a civil revision application in the High
Court against that order. After admitting the revision, the
High Court heard both the sides and confirmed the order of
the trial court rejecting the amendment application. The
415
High Court held that the revision application raised no
question of jurisdiction and that the application for amend-
ment made by the appellant was mala fide.
At long last, the suit which was field by the respondent
in May, 1968 was taken up for hearing in January, 1974. On
November 30, 1974 the suit was decreed by the trial court.
On February 6, 1975 the appeal filed by the, appellant
therefrom was dismissed summarily by the High Court. On the
very next day the respondent obtained possession of the suit
lands from the appellant, which in the long context, must go
on the record as a matter of refreshing promptitude. This
Court granted special leave to the appellant in April, 1976.
We would have been saved the futile exercise of looking
at the pleadings and considering the evidence for ourselves
if only the High Court had given us the benefit of its views
while dismissing the appeal summarily. A brief statement of
reasons would have served that purpose. The unspeaking order
"Dismissed" which the High Court has passed affords no
indication whatsoever as to the reasons which impelled the
Court to deal with the appeal before it as unworthy of any
serious consideration. In matters involving construction
of written instruments where rival interpretations have more
than mere plausibility, the High Court ought to give a brief
statement of reasons while dismissing the appeal summarily.
In the instant case the High Court had called for the record
before dismissing the appeal which only shows that it
thought it necessary to verify certain matters from the
record in order to find whether the decree passed by the
trial court was legal and proper. But since on a full
consideration of the appeal and on hearing both sides we
have come to the conclusion that the appeal is devoid of
merit, we. propose to dispose it of ourselves instead of
remanding it to the High Court.
The main plank, and perhaps the only one, of the appel-
lant’s defence in the trial court was that he was in posses-
sion of the lands as a tenant of the respondent. Having
carried that point from the Tahsildar to the Supreme Court
and having failed to establish it, the appellant set up an
entirely new and inconsistent case at the hearing of the
suit that he was in possession of the lands under an agree-
ment of sale and was therefore entitled to protect his
possession under section 53A of the Transfer of Property
Act. The application for amendment of the written statement
seeking leave of the trial court to raise this plea was
rejected by it and the order was confirmed in revision by
the High Court. Apart from the fact that the application for
amendment was made at a late stage of the proceedings, on
merits, there is no substance whatever in the contention
that the appellant is entitled to protect his possession
under section 53A. That section provides, in so far as
material, that if any person contracts 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, 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 possesion con-
tinues in possession in part performance of the contract and
has done some act in furtherance of the contract and
416
is willing to perform his part of the contract, then, even
though the contract is required to be registered but has not
been registered, the transferor is debarred from enforcing
against the transferee any right in respect of the particu-
lar property except a right expressly reserved by the terms
of the contract. The first and foremost difficulty in the
appellant’s way is that there is no written contract at all
under which the respondent can be said to have agreed to
sell the property to the appellant. Counsel for the appel-
lant relied on a letter (Ex. 147) dated January 4, 1968
which was written by the respondent’s brother to the appel-
lant as constituting a written contract of sale. Even assum-
ing that the respondent’s brother was authorized to write
the letter on her behalf, it only refers to an oral agree-
ment between the appellant and the respondent under which
the latter had agreed to sell the lands to the former. By
that letter, the respondent’s brother complained that
though the appellant had agreed to purchase the lands for a
sum of rupees one lakh and to pay the full consideration
within a period of six months, he did not take any steps in
fulfilment of these terms. At best, the letter is written
evidence of an oral contract of sale but is not the written
contract itself. On this narrow ground the contention of
part performance is liable to fall. Besides, many a condi-
tion of section 53A of the Transfer of Property Act is
unfulfilled. The terms necessary to constitute the transfer
cannot be ascertained with reasonable certainty from the
letter, the respondent obviously was unwilling to perform
his part of the contract, and the appellant was not put in
possession in part performance of the contract. Admittedly,
he obtained possession under the power of attorney executed
by the respondent in his favour and there is nothing on the
record to show that the character of his possession ever
changed as a result of the contract of sale. The appellant
continued to remit, off and on, the agreed annual sum of Rs.
2000 to the respondent, which was entirely inconsistent with
his character as a potential purchaser of the lands. In this
background, we are not surprised that the trial court dis-
missed the appellant’s application for amendment of the
written statement and the High Court,. while confirming that
order in revision, characterized the application as mala
fide.
It is urged on behalf of the appellant that the power of
attorney is a sham and colourabIe document, its object was
to arm the appellant with a written authority to evict
unauthorised occupants from the lands and that its real
purpose was to put the appellant in possession as a potent-
iaI purchaser. To an extent, it is correct that the real
object of the power of attorney was different from that
which is expressed in the document. The real object was to
enable the appellant to obtain possession of the lands from
Nathuram Agarwal and others who were m possession thereof
unauthorisedly. The power of attorney recites that the
respondent herself was in possession of the lands but that
was an untrue statement of which the explanation may be
sought in the notorious unwillingness of a true owner to
acknowledge in writing the possession of a trespasser. But
though the recital that the respondent was herself in pos-
session of the property was not consistent with the true
facts, it is wrong for that reason to say that the power of
attorney was a sham and colourable document. Admittedly;,
immediately after the execution of the power of attorney,
the appellant wrote a letter (Ex. 155) dated February 3,
1963 to the respondent
417
accepting the power of attorney in terms, agreeing to pay to
her a sum of Rs. 2000 per year from the net income of the
lands and reserving the rest of the income as his own
"honorarium". Unquestionably, the letter was written by the
appellant in furtherance and in fulfilment of the terms of
the power of attorney. Then again, in the absence of a
concluded sale, the appellant continued in possession under
the power of attorney and indeed he used to make the annual
payment of Rs.2000 to the respondent, which by reason of the
letter Ex. 155,, had become a part and parcel of the power
of attorney itself. It is therefore impossible to accept the
appellant’s contention1 that the power of attorney was not
intended to be acted upon and was a sham.
The appellant having failed to establish that he was a
tenant of the respondent or that he was put in possession of
the lands in part performance of an agreement of sale, we
are unable to appreciate the drive of a persistent argument
that the power of attorney is a sham and colourable docu-
ment. Assuming that it is so, the appellant can claim no
right apart from that document except the two rights which
stand negatived. It then is inconsequential whether the
power of attorney was or was not intended to be acted upon.
Faced with this difficulty, learned counsel for the
appellant was driven to raise points on which there is no
pleading, no issue and naturally no satisfactory evidence.
The first of such contentions raised by Mr. Bal is that the
appellant must be deemed to be a licensee of the respondent
and since he has executed work of a permanent character on
the land involving heavy expenses, the licence would be
irrevocable under section 60(b) of the Easements Act, 1882.
This argument was made expressly on the assumption that the
power of attorney was a nominal document and therefore
inoperative. In view of our finding that the document_was
intended to be acted upon and was in fact acted upon, the
argument or irrevocable licence does not survive for consid-
eration. But having spent some time in chasing the
argument,, we are constrained to say that such evidence as
there is on the record seems inadequate to prove the im-
provements made or the expenses incurred by the appellant.
He has admitted in his evidence that the figures which he
gave in his examination-in-chief as regards the amount spent
on improvements were stated from memory and that he had not
produced his accounts to corroborate the oral word. Only
one .more thing need be stated: even assuming that the
appellant has executed work of a permanent character on the
land it cannot be said that he has done so "acting upon the
licence", as required by section 60(b) of the Easements Act.
If he really improved the land by executing a work of a
permanent character, he did so in the belief that being a
tenant he will become a statutory purchaser of the land, or
that the oral agreement of sate will one fine day be imple-
mented. The execution of work would therefore be in his
capacity as a tenant or a prospective purchaser and not in
his capacity, as a licensee.
Mr. Bal also challenged the decree for the payment of
Rs.4390 which has been passed in favour of the respondent by
the trial court. It is true that there was no accountability
as such between the appellant and the respondent but in
substance the contention of the respondent
418
was that the appellant had failed to pay the agreed
amount of Rs. 2000 to her for certain years and should
therefore be held accountable to pay the same. There is,
on merits, no infirmity in the finding of the trial court
that a sum of Rs. 4390 is due to the respondent in pursuance
of the letter of consent, Ex. 155.
Finally, Mr. Bal urged that the trial court was in error
in awarding possession of the suit lands to the respondent
along with the valuable improvements made by the appellant.
No issue was sought on this question and indeed no argument
was made in the trial court that it could not award posses-
sion of the lands together with the improvements. Original-
ly, the sole defence of the appellant to the suit was that
he was a tenant. That contention having failed, he attempted
to urge that he was in possession of the lands in part
peformance of a contract of safe. In neither of these two
capacities could he claim the value of improvements alleged
to have been made by him. That explains why he did not urge
the contention which he is now urging as an argument of last
resort
Counsel for the appellant attempted to draw some suste-
nance from the provisions of section 221 of the Contract Act
in support of the claim for the value of improvements but
that section has nothing to do with the case. It gives to
the agent a lien over the principal’s property which is
received by the agent, until the amount due to the agent as
commission, disbursements and services in respect of the
property has been paid or accounted for to him. The amounts
said to have been spent by the appellant for improving the
property, without any reference whatsoever to the respondent
cannot be recovered under section 221 of the Contract Act,
as it does not fall within its terms.
In the result, the unspeaking order of dismissal passed
by the Bombay High Court can seek its justification in the
reasons given by us above. The appeal is accordingly
dismissed with costs.
V.P.S. Appeal dismissed.
419