NATHULAL versus PHOOLCHAND

Citation: [1970] 2 S.C.R. 854 · Decided: 16-10-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

854 
NATHULAL 
y, 
PHOOLCHAND 
October 16, 1969 
(J. C. SHAH AND K. S. HEGDE, JJ.J 
Transfer of Property Act 4 of 1882, ss. 4 and 53A-Defence of part 
perfonnance under s. 53A--Conditions for-Wh::n defendant is deen1ed 
to be ready and willing to perform his part of contract-Effect of s. 4 on 
provisions of Indian Contract Act, 1872-Sequence in which parties to 
agree1nent are to cc.'rry oi~t their parts of contract-Effect of ss. 10( 4) 
and 70(8) of Madhya Pradesh Land Revenue and Tenancy Act 66 of, 
1950-Repeal of Act 66 of 1950 by Madhya Pradesh Land Revenue Code 
1959 1rhether retrospective. 
The appellant agreed in writing to sell a ginning factory situated in 
· Madhya Pradesh and the agricultural land on which it stood, to the res-
pondent for a sum df Rs. 43,077. The land in question stood entered in 
the revenue records in the name of the appellant's brother. The respon-
dent f!Jade part payment at the time of the execution of the agreement 
and promised to pay the balance by a fixed date. 
On the ground that 
the balance was not paid on the c'ue date, the appellant rescinded the 
contract and commenced an action in the Court of the District Judge. 
Th• defence of the respondent was that he had made arrangements to 
pay the balance of the agreed amount and had offered to pay it; it was 
the appellant who had failed to fulfil his pa'rt of the agreement inasmuch 
as he had not taken steps to get deleted the name of his brother from the 
revenue records. 
The trial court decreed the suit but the High Court 
reversed the decree. 
The appellant filed the present appeal with certifi-
cate. Dismissing the appeal, 
HELD : The respondent was entitled to rely on the doctrine .of part 
performance in s. 53A of the Transfer of Property Act, and s. 70(8) of 
the Madhya Pradesh Land Revenue and Tenancy Act, 1950 was not a 
bar to that defence. Section 70(8) only ,·equires that not only the condi-
tions pre·scribed by s. 70 but registration of sale deed in accordance with 
the land of !registration for the tir.ie being in force is a condition required 
to be complied with before a sale is deemed valid. 
There was no sale in 
the present case and the respondent was not relying on any sale. He was 
retying upon a contract of sale and the equity for defending his possession 
against the claim made by the appellant. 
[858 B-D] 
There \Vas in the present case a contract to transfer for consideration 
immovable property by writing signed by the appellant from which the 
terms necessary to constitute th~ transfer could 
be 
ascertained 
with 
reasonable certainty. 
In part perfo'rm:inc.-e of the contract the respondent 
had taken possession of the property and h: had . in pursuance thereof 
paid an amount of Rs. 22,011. 
The contention ra1Sed on behalf of the 
aopeltant that the act done in pursuance of the contract must be indepen-
dent of the terms of the contract could not be accepted. 
The fir~t three 
conditions for the defence of part performance to be effectively set up by 
the respondent therefore existed. [859 BJ 
The fourth condition in s. 53A-that the transferee has performed or 
is willing to perform his part of the contract-was also satisfied in the 
case because : 
A 
B 
c 
D 
E 
F 
G 
H· 
r 
A 
B 
c 
D 
E 
F 
G 
H 
NATHULAL v, PHOOLCHAND (Shah, /,) 
855 
(i) Jn considering whether a pelrson is willing to perform his part of 
the colilliact the sequence in which the obli~ations undelr a contract are 
to be performed µmst be taken into account. By virtue of s. 4 of the 
Tral)sfer of Property Act the chapters and •ections of the Transfer of 
Property Act which relate to contracts are to be taken as part of the 
Indian Contract Act, 1872. If therefore under the terms of the contract 
obligations of the parties have to be performed in a certain sequence, one 
of the parties to the contract cannot require compliance with the obliga-
ti<!_ns by the other party without in the first instance performing his own 
part of the contract which in the sequence of obligation is performable by 
him earlier. 
(i;) The appellant had expressly undertaken to have the revenue 
records rectified by securing the deleiion of his brothelr's name from the 
revenue records, and it was further an implied condition of the contract 
that the appellant would secure the sanction of the Collector to the 
transferor under s. 70( 4) of the Madhya Bharat Land Revenue and 
Tenancy Act, 66 of 1950. 
The first condition was not fulfilled in due 
time and 

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