RANCHHODDAS CHHAGANLAL versus DEVAJI SUPADU DORIK AND ORS.

Citation: [1977] 2 S.C.R. 621 · Decided: 17-01-1977 · Supreme Court of India · Bench: A.N. RAY · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

RANCHHODDAS CHHAGANLAL 
v. 
DEVAJI SUPADU DORIK AND ORS. 
lanuary 17, 1977 
[A. N. RAY, C.J., M. R BEG AND JASWANT SINGH, JJ.] 
621 
Transfer of Property Act, 1882_:Sec. 53A-Doctrine of part performance-
Whether transferee should be ready and willing 
to 
perform-Indian Penal 
Code-Finding without issue-Not sustainable-Cross objection-If judgment 
can be challenged by respondent without filing cross objection. 
Article 133 of Constitution-Practice and procedure-Objection about vali-
dity of grant of certificate-To be raised at what stage . 
. ,1 
The appellant agreed to sell certain land to the respondents by an agree-
ment for sale entered into between t):ie parties for Rs. 17,000/-. The respon-
dent was put in possession pursuant to the said agreement after Rs. 12,000/-
were paid. 
He failed to pay the balance of Rs. 5,000/- in spite of demand by 
the appellant 
The appellant filed a suit for possession of the land and, in the 
· alternative, for a decree for Rs. 5,000/- with interest. 
The respondent contended that the agreed price was Rs. 12,000/- which wa~ 
already paid and that, therefore, Rs. 5,000 /- were not payable. The resoondent 
contended that if the court came to the conclusion that Rs. 17,000/- was the 
agreed price then the Court should take into account certain amount which 
was already paid by the respondent. 
A 
B 
c 
D 
The Trial Court _decreed the appellant's suit for possession and came to th1 
conclusion that the agreed price was Rs. 17,000/-. The High Court in 
an 
E 
appeal confirmed the finding of the Trial Court that the 
agreed 
price 
wai 
Rs. 17,000/-. The High Court, however, granted the decree of Rs. 
5,000 /-
with interest but refused the prayer for possession. 
Allowing the appeal, 
HELD : ( 1) The respondent was. never ready and willing to perform the 
aireement as alleged by the appellant: One of the ingredients of part perfor-
mance under s. 53A of the Transfer of Property Act is tliat the transferee has 
F 
taken possession in part performance of the contract. In the present 
case, 
there was ncr performance in part by the respondent of the contract· between 
the parties. 
The doctrine of part performance is a defence. It i• generally not 
a sword but a shield. The act of part performance must be such a• not only to 
be referable to a- contract such as that alleged but to be referable to no other 
title 
Section 53A requires a positive act of readiness and willingness on the 
part of the transferee to perform the agreement. 
[624 A-E] 
(2) The High Court wrongly found that there was an extension of the per-
G 
formance of the contract by one year. There was no issue rai•ed 
on that 
point. It is well settled that there should be specific issues on question• of fact. 
The contention that the appellant could not put an end to the contract if ther• 
was failure on the part of the respondent 
to 
perform 
the 
agreement 
is 
fallacious. 
[ 624 F-G] 
(3) It was not open to the resoondent to challenge the findin~ of the Hf~h 
Court that the agreement was for Rs. 17.000/-. The respondent can certainly 
H 
~unnort the iudgment on anv ground which is onen to him under the imn1rnned 
judgment. The respondent did not file any cross-obiection on the ftndin~ in the 
jud~ment of High Court about the nrice of the agreement. It 11, 
therefore, 
not open to him to challe11ge the finding. 
[623 G-H] 
622 
SUPREME COURT REPORTS 
[1977] 2 S.C.R. 
A 
( 4) The contention of the respondent that certificate was 
not competent 
because the value all along had not been over Rs. 20,000/- cannot be allowed 
t!' be taken at the late stage. If the respondent had taken this point at the 
t1~e when the. matter was heard in the High Court the appelliint could have 
sausfied the High Court. Such a plea was not raised even in the statement of 
case. [623 D-Fl 
B 
c 
D 
E 
F 
G 
H 
Stare of Assain and Anr. etc. v. Basanta Kumar Dass etc. etc. 
(1973] 
(3}> 
S C.R. 158, followed. 
' 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 945 of 1972. 
(From the Judgment and Decree dated 15-10-1969 of the Bombay 
High Court in First Appeal No. 420163). 
· 
V. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, 
for the 
appellant. _ · 
Sharad Manohar and Suresh Sethi, for the respondents. 
The Judgment of the Court was delivered by 
RAY, C.J. 
This appeal is by certificate from the judgment dated 
15·0ctober 1969 of the Bombay High Court in First Appeal No. 420 
of 1963. 
The trial court by its judgment dated 24 June 1963 decre

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