RAMBHAU NAMDEO GAJRE versus NARAYAN BAPUJI DHOTRA (DEAD) THROUGH LRS.

Citation: [2004] SUPP. 3 S.C.R. 817 · Decided: 25-08-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed

Judgment (excerpt)

' • 
RAMBHAU NAMDEO GAJRE 
A 
v. 
NARAYAN BAPUJI DHOTRA (DEAD) THROUGH LRS. 
AUGUST 25, 2005 
[ASHOK BHAN AND S.H. KAPADIA, JJ.] 
B 
Transfer of Property Act, 1882 : 
Ss. 53-A and 54-Part performance-Agreement to sell in favour of 
proposed vendee-Vandee jitrther executing an agreement to sell in favour C 
of third person-Suit for possession filed by original transferor against 
said third person-Defendant claiming benefit of s.53-A-Held, doctrine 
of part performance can be availed by a proposed transferee against his 
transferor or any person claiming under him and not by a third person with 
whom original transferor does not have a privity of contract-Doctrine of D 
part performance. 
Predecessor-in-interest of the respondent-appellant, claiming 
himself to be owner of certain agricultural land, filed a suit for 
possession, stating that the defendant-appellant had wrongfully 
dispossessed him from the said land. The stand of the defendant was E 
that the plaintiff had executed an agreement of sale of the suit land in 
favour of one 'P', the proposed transferee, after receipt of the entire 
amount of consideration and the latter in turn executed a further 
agreement of sale in favour of the defendant and put him in possession 
of the suit land in part performance of the agreement; and as such the F 
defendant was entitled to protect his possession on the basis of 
equitable doctrine of part performance enshrined in s.53-A of Transfer 
of Property Act, 1882. The suit was decreed by the trial court but 
dismissed by the first appellate court. However, the High Court held 
that the defendant was not entitled to protect his possession under s.53- G 
A of the Act. Aggrieved, the defendant filed the present appeal. 
Dismissing the appeal, the Court 
Held : 1.1. The doctrine of part performance as contemplated in 
Section 53-A of Transfer of Property Act, 1882, can be availed of by H 
817 
818 
SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. 
A the proposed transferee against his transferor or any person claiming 
under him and not against a third person with whom he does not have 
a privity of contract. It is rooted in equity and provides a shield of 
protection to the proposed trransferee to remain in possession against 
the original owner who has agreed to sell to the transferee if the 
B proposed transferee satisfies other conditions of Section 53-A. It 
operates as an equitable estoppel against the original owner to seek 
possession of the property which was given to the proposed vendee in 
part performance of the contract. In the instant case, there was no 
agreement between the appellant and the respondent, the original 
C owner, in connection with the suit land. Appellant has been put in 
possession of the suit land on the basis of an agreement of sale not by 
the respondent but by the proposed transferee; therefore, the privity 
of contract is between the proposed transferee and the appellant and 
not between the appellant and the respondent. Appellant being a third 
party and not a privy to the transaction on which the estoppel rests 
D can take no advantage of it. (823-C-E; 825-C-Ej 
Shrimant Shamrao Suryavanshi & Anr. v. Pralhad Bhairoba 
Suryavanshi, (2002] 3 SCC 676, referred to. 
1.2. An agreement to sell does not create an interest on the 
E proposed vendee in the suit property. The proposed transferee did not 
have a transferable interest which he could convey to the appellant by 
entering into ac agreement of sale with the appellant. The appellant 
under the circumstances does not have the equitable right to protect 
his possession as against the owner of the land i.e., the respondent. 
F Appellant is not the transferee within the meaning of Section 53-A. The 
appellant did not get the possessory or equitable title to the suit land 
through the proposed transferee as the letter himself did not have any 
right in the property. [823-F; 825-E-FJ 
G 
State of UP. v. District Judge & Ors., [199711 sec 496, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4610 of 
2000. 
From the Judgment and Order dated 7.10.99 of the Bombay High 
H Court in Second Appeal No. 205 of 1984. 
' 
R.N. GAJRE v. N.B. DHOTRA [BHAN, J.] 
819 
B.N. Deshmukh, Venkateswara Rao Anumolu for S.M. Jadhava for A 
the Appellant. 
Dr. N.M. Ghatate, S.V. Deshpande and Ms. Anuradha Rustogi for the 
Respondents. 
The Judgment of the Court was delivered by 
BHAN, J. : Defendant/appellant (hereinafter referred to as "the 
appellant") has fi

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