SARDAR GOVINDRAO MAHADIK & ANR. versus DEVI SAHAI & ORS.

Citation: [1982] 2 S.C.R. 186 · Decided: 15-12-1981 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SARDAR GOVINDRAO MAHADIK & ANR. 
v 
DEVI SAHAI . & ORS. 
December 15, 1981 
[D.A. DESAI AND R.B. MISRA,JJ.J 
Transfer of Property Act, S.Cctio11 53A-Scope of 
The appellant mortgagor took a loan by mortgaging his house property to 
the respondent mortgagee. The mortgage was a mortgage with possession. 
According to the mortgagee sometime thereafter the mortgagor agreed to sell the 
property to him and that pursuant to !his agreement requisite stamps were 
purchased and a draft sale deed was drawn up. The sale deed was however not 
registered. 
A few days later the mortgagor sold the property to another person and the 
mortgagor and the subsequent purchaser filed a suit against the mortgagee for a 
deeree for redemption. 
In the written statement the mortgagee claimed that even though the sale 
deed was not registered, since he was in possession of the property in part per-
formance of the contract of sale and continued to be in possession and did 
several acts attributable to the contract, the mortgagor was debarred from en-
forcing any right against him in respect of the property. It was also claimed 
that since the mortgagor himself had no subsisting title to the property on the 
date of sale, he could not have transferred the property to the subsequent 
purchaser. 
The trial court held that though the sale deed was executed but since it 
was net registered the transaction of sale was not complete. The Court further 
held that benefit of section 53 A is not available to the mortgagor defendant 
because the mortgage being a mortgage with possession, continued possession of 
the mortgogee after the date of contract would not be in part performance of the 
contract, and also the payment made for the purchase of stamps and for expenses 
of registration could not be said to be in furtherance of the contract because that 
amount was paid before the execu1ion of the contract. 
Ia the mortgagee's appeal the High Court held that he was entitled to the 
benefit of section 53A against the mortgagor and the subsequent purchaser for the 
reason that he was in possession of the property and paid Rs. 1000 in furtherance 
of the contract, 
The appellant 1n Civil Appeal No. I 145 of 1969 filed a suit against the 
!nortgaiior for reco\er)' of a cJcbt owed to him and obtained attachment of the 
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s. GOViNb RAO v. DEVi SAHAi 
187 
suit property before judgment. The suit eventually ended in~a decree in his 
favour. In the aution of the suit property since there were no bidders the decree 
holder's bid was accepted with the permission of the Court. 
The High Court allowed the decree holder to be impleaded as a respondent 
in the mortgagee's appeal which was then pending in the High Court. 
A 
It was contended on behalf the mortgagor that the deeree bolder could not 
II 
maintain an application under Order XXII, Rule 10 of the Code of Civil Proce-
dure because be could not be said to be claiming under the mortgagor. (Rule 10 
of order XXJI CPC provides for continuance of any action by or against a person 
who acquires any interest either by assignment, creation or devolution during 
the pendency of the suit with the leave of the Court.) 
' 
HELD : To qualify for the protection of the doctrine of part performance it 
must be shown that there is a con tract to transfer immovable property for 
consideration and the contract is evidenced by a writing signed by the person 
sought to be bound by it and from which the terms necessary to constitute the 
transfer can be ascertained with reasonable certainty. After establishing these 
circumstances, it must be further shown that a transferee had in part performance 
of the contract either taken possession of the property or any part thereof or 
the transferee being already in possession, continued in possession in part 
performance of the contract and had done some· act in furtherance of 
the contract. The acts claimed to be in part performance must be unequivo-
cally referable to the pre-existing contract and the acts of part performance 
must unequivocally point in the direction of the existence of contract and 
evidencing 
implemention 
or 
performance of contract. 
There 
must be 
a real nexus between the contract and the acts done in pursuance of the con-
traact or in furtherance of the contract and must be unequivocally referable to 
the contract. When series of acts are done in part performance one such may 
be payment of consideration.

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