LexPATEL NATWARLAL RUPJI versus SHRI KONDH GROUP KHETI VISHAYAK AND ANR
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PATEL NATWARLAL RUPJI v. SHRI KONDH GROUP KHETI VISHAYAKAND ANR DECEMBER 6, 1995 [K. RAMASWAMY, FAIZAN UDDIN AND B.N. KIRPAL, JJ.) Transfer of Property Act, 1882, S.53A-f'art Peifonnance of con- tract-Payment of part of consideration-Agreement of sale fraudulently made in order to defeat right of decree holder to proceed against property-Posses- sion given to third party-Right of third party under S. 53-A. A sum of Rs. l, 31, 596.07 was due from Secretary of Respondent No. 1 and an award for recovery was made against him. Land of the debtor was attached to recover the dues. Public Notice was published. A B c Appellant filed Special Civil Snit for declaration and for permanent D injunction restraining the second Respondent from selling the land and also for perpetual injunction restraining him from interfering with the appellant's possession and enjoyment of the land before Senior Civil Judge. The Trial Court decreed the suit. On appeal the Division Bench of the High Court allowed the appeal and dismissed the suit. . E In the present appeal it was contended on behalf of the Appellant that by operation of Section 53-A of the Transfer of Property Act, he was entitled to retain possession of the land; that he had already performed his part of the contract except payment of a sum of Rs. 5000 which was to be paid at the time of registration of the document; he having had lawful F agreement is entitled to the declaration as prayed for and the consequent injunctions; the attachment of the property being subsequent to the agree- ment the appellant was entitled to resist the action of the respondents. Dismissing Petition, this Court HELD : 1. The doctrine of part performance in Section 58(3) of the Transfer of property Act was not available to establish title to the property. The doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English Law. Section 53-A confers no title on G the transferee but if imposes a statutory bar on the transferor to seek H 289 290 SUPREME COURT REPORTS [1995) SUPP. 6 s.c.R. A possession of the immovable property from the transferee. Equally, Section 53 A does not confer any title on the defendant in possession, nor can he maintain a suit on title. Section 53-A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant. [294-E, 293-F-H) 2. A Person who. pleads equity must come to the court with clean B hands. To save the property, fraudulent unregistered agreement of sale was brought into existence without adequate consideration. The agreement was executed after the attachment but before the attachment order of the Trial Court to defeat the right of the respondents to proceed against the property. It cannot be used as a title for the declaration In the suit, but C the benefit of Section 53-A can be availed of as a shield to retain posses- sion. The Appellant has not come to the Court with clean bands. He is a party to the fraud. Th~ _attachment before Judgment prevails over the agreement. [295-B, D, E-F, 196,4) Ram Gopal Reddy v. The Additional Custodian, Evacuee PropeTty, D Hyderabad, AIR (1966) S.C. 1438; Delhi Motor Company & Ors. v. U.A. Basurkar & Ors., [1968) 2 SCR 720; Sardar Govindrao Mahadik & Anr. v. Devi Sahai & Ors., [191!U 1 SCC 237 and Sheth Maneklal Mansukhbhai v. Mis Honnusji Jamusji Ginwal/a & ijpns, [1950) SCR 75, relied on. 3. The c·ontract for sale of lmmov11ble property doe$ nr• •nnfer any E title except when covered under Section 54 of tbe Act and ~stered under Section 17 of the Registration Act. Equally, It does not creafl' !II' interest In the property. It merely gives a right to enforce it specifically as an equitable relief in a conrt of law. [294-F] F Technicians Studio Pvt. v.Lila Ghosh & Ors., [1978) 1 SCR 516, relied on. 4. The statutory right of part performance under Section S3-A caanot be used for the declaration sought in the suit, [296-AI G CIVIL APPELLATE JURISDICTION : Special leave petition (c) No. 11280 of 1989 From the Judgment and Order dated 18.6.88 of the Gujarat High Court in F.A. No. 11 of 1976. H P.C. Kapur for the Petitioner. PATELNATWARLALRUPJI v. KOND GROUP KHETJVISHAYAK 291 The following Order of the Court was delivered : This special leave petition is directed against the judgment and order dated June 18, 1988 of the Division Bench of the Gujarat High Court rendered in First Appeal No. 11 of 19
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