NANJEGOWDA AND ANOTHER versus GANGAMMA AND OTHERS

Citation: [2011] 10 S.C.R. 700 · Decided: 25-08-2011 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2011] 10 S.C.R. 700 
NANJEGOWDA AND ANOTHER 
V. 
GANGAMMA AND OTHERS 
(Civil Appeal No. 2006 of 2006) 
AUGUST 25, 2011 
[MARKANDEY KAT JU AND CHANDRAMAULI KR. 
PRASAD, JJ.] 
Transfer of Property Act, 1882 -
s. 53A -
Part 
c performance - When attracted - Suit for declaration and 
possession over property - However, defendants claiming title 
over the property on basis of an agreement to sale as also 
irrevocable power of attorney executed by their predecessor-
in-title in their favour - Trial court decreed the suit - Order 
D upheld by the High Court - On appeal, held: Agreement to 
· sale recited that predecessor-in-title had delivered the 
possession of property to defendant no.3 - According to the 
defendtJnts, there had been ban on registration of documents, 
thus, predecessor-in-title executed an irrevocable power of 
E attorney three years later - However, the contents of the 
general power of attorney show that the property at that 
particular time was in possession of predecessor-in-title 
(transferor) - Had defendant no.3 got possession of the 
property in pursuance of the agreement to sale; there was no 
F occasion for predecessor-in-title to recite in clear terms that 
he was in possession of the property - Thus, the finding 
recorded by the courts below that defendants did not get 
possession of the property after execution of the sale deed 
is on correct appreciation of facts and does not call for 
G 
H 
interference - Provision of s. 53A is not attracted. 
'H' purchased certain property from 'R' under a 
registered sale deed. Plaintiffs-wife, daughter and son of 
'H' filed the suit for declaration and possession of the said 
property against the defendants. It was the case of the 
700 
NANJEGOWDA AND ANR. v. GANGAMMA AND ORS. 701 
plaintiffs that 'H' had executed a power of attorney in 
A 
favour of defendant nos 1 to 3 which came to an end on 
the death of 'H'. The defendants did not deny that 'H' had 
purchased the property from 'R' but claimed title over the 
property on basis of an agreement to sale.· The 
defendants also contended that since there was ban on 
B 
the registry of the property, 'H' executed an irrevocable 
power of attorney as also an affidavit of the same date. 
The trial court rejecting the plea of the defendants, 
decreed the suit. The High Court upheld the judgment 
and· decree of the trial court: 
c 
Dismissing the appeal, the Court 
HELD: 1.1 From a plain reading of Section 53A of the 
Transfer of Property Act, 1882, it is evident that a party 
can take shelter behind this provision only when the D 
following conditions are fulfilled. They are: 
(i) The contract should have been in writing signed 
by or on behalf of the transferor; 
(ii)The transferee should have got possession ·of the 
immoveable property covered by the contract; 
E 
(iii)The transferee should have done some act in 
furtherance of the contract; and 
(iv)The transferee has either performed his part of the 
contract or is willing to perform his part of the 
F 
contract. 
A party can take advantage of Section 53A only 
when it satisfies all the aforesaid conditions. All the 
postulates are sine qua non and a party cannot derive 
benefit by fulfilling one or more conditions. [Para 8] [706-
G 
A-D] 
1.2 The agreement to sale dated 27th November, 
1982 recites that 'H' had delivered the possession of 
property to defendant no.3. According to the defendants, 
H 
702 
SUPREME COURT REPORTS 
[2011) 10 S.C.R. 
A there had been ban on registration of documents, thus, 
'H' executed an irrevocable power of attorney on 14th 
July, 1985. The contents of the general power of attorney 
show that the property at that particular time was in 
possession of 'H', the transferor. Had defendant no.3 got 
B possession of the property in pursuance of the 
agreement to sale dated 27th November, 1982, there was. 
no occasion for 'H' to recite in clear terms that he was in 
possession of the property. Thus, the finding recorded 
by the trial ·court as upheld by the High Court that 
c defendants did not get possession of the property after· 
execution ·of the sale deed is on correct appreciation of 
facts, which does not call for interference. In view Qf the 
said finding; the provision of Section 53A of the Transfer 
of Property Act is not attracted and defendants cannot 
D take advantage of that. [Paras 9 and 10) [706-F-H; 707-C-
D) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No._ 
2006 of 2006. 
From the Judgment & Order dated 08

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