D.S. PARVATHAMMA versus A. SRINIVASAN

Citation: [2003] 3 S.C.R. 197 · Decided: 31-03-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed

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Judgment (excerpt)

..;,.. 
D.S. PARVATHAMMA 
A 
v. 
A. SRINIVASAN 
MARCH 31, 2003 
[R.C. LAHOTI AND BRIJESH KUMAR,.JJ.] 
B 
Transfer of Property Act, 1882-Section 53: 
Eviction suit by subsequent transferee-Plea of part performance'_ 
Raising of by transferee~Availability of-Held: szich plea is not available C 
since transferee's suit for specific performance is dismissed, he has failed to 
prove that he has taken possession of property' in part perforinance of contract, 
and sub~equent transferee liiho is transferee for consideration has no notice 
of the contract or of the part pe1fo~·1nance thereof in favour oftrqnsferee--,-/t 
cannot be said that transferee has performed or is willing to perform his part D 
of the contract-Thus transferee not entitled. to protect his possession under 
Section 53A and is liable to be evicted-Karnataka Rent Control Act, 1961. 
Part performance--Plea-Availability of when suit for specific 
pe1formance barred by limitation-Held: If all other requisites of Section 53A 
are present such plea can be raised 
Part performance-Essential features-Discussed 
Constitution of India-Article 136-Plea-Raising of-For the first lime 
at the time of hearing of appeal-Availability of-Held: Such plea cannot be 
raised, more so when it is contrary to the stand taken by appellant in courts 
below. 
Original owner of the suit premises inducted appellant as tenant. 
E 
F 
Thereafter original owner and his wife transferred their right, title and 
interest in the property including suit premises to the respondents by way G 
of sale deed. According to the appellant he entered into an agreement to 
purchase the suit property from the original owner whereafter he is 
holding t.he suit premises as prospective vendor. Appellant then filed suit 
for injunction to protect his possession which was later amended by adding 
relief for specific performance. Trial Court held that though there was 
an agreement to sell in favour of the appellant, however, suit was barred I-I 
197 
198 
SUPREME COURT REPORTS 
[2003] 3 S.CR. 
A by limitation; that respondent was a transferee without notice of 
agreement in favour of the appellant, having purchased the property bona 
fide and for consideration; and that the conduct of the appellant was 
inconsistent, thus appellant was not entitled to relief of specific 
performance. Thereafter respondent claiming himself to be owner-landlord 
B filed eviction suitagainst appellant alleging him to be tenant in the suit 
premises which was allowed. High Court upheld the order. Hence the 
present appeal. 
Appellant contended that there is no registered sale deed in favour 
of the respondent and therefore, he cannot be held to be a transferee 
C having acquired ownership rights in the property. 
Dismissing the appeal, the Court 
HELD: 1.1. The essential features of the equitable doctrine of part 
performance as statutorily modufied and incorporated in Section 53A of 
D the Transfer of Property Act, 1882 are 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 and has done some act in 
furtherance of the contract; that the transferee has performed or is willing 
to perform his part of the contract; and that the plea of part performance 
E is not available to be raised against a transferee for consideration who 
has no notice of the contract or of the part performance thereof. 
[202-E-GI 
2.1. In the instant case, appellant cannot be permitted to raise the 
F plea of part performance as the dvil suit which was filed by the appellant 
was initially filed in the year 1989 as a suit for injunction seeking to protect 
his possession. After about four years from the date of institution of the 
suit the relief of specific performance was also added by way of 
amendments. Thereafter, the suit was dismissed in its entirety. Not only 
was the plaintifrs claim f<Jr spedfic performance and monetary relief in 
G the alternative denied, but even the relief of injunction was not allowed 
to him. Thus in view of his suit for specific performance ha\'ing been 
dismissed, it cannot be said that he has performed or was willing to 
perform his part of the contract. 1203-C-D; 204-DI 
H 
2.2. The appellant has failed to allege and prove that he was delivered 
possession in part performance of the contract or he, being already in 
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D.S. PARVATHAMMA v. A. SRINIVAS

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