Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi
Supreme Court of India, 22 January 2002, 2 judges
A transferee in possession under part performance can defend that possession under Section 53A of the Transfer of Property Act even though a suit for specific performance of the agreement has become time-barred.
Facts
In 1964 the transferor agreed to sell agricultural land to the first appellant, who paid earnest money and was put in possession. Despite an injunction obtained by the appellants, the transferor sold the land by a registered sale deed in 1966 to the first respondent, who then sued the appellants for possession. The appellants pleaded that their possession under the 1964 agreement was protected, as they were always ready and willing to perform their part. The trial court dismissed the suit and a Single Judge of the Bombay High Court dismissed the appeal, but the Letters Patent Bench allowed the plaintiffs' appeal, holding that the protection was lost because a suit for specific performance had become barred by limitation.
Questions before the Court
- Can a defendant transferee protect possession under Section 53A of the Transfer of Property Act after a suit for specific performance of the agreement has become barred by limitation?
What the Court held
- Section 53A neither forbids nor restricts the defence once limitation for a suit for specific performance has expired. Read with the Special Committee's report and the objects of the amending Act of 1929, it was meant to protect such a transferee even after that period.
- The transferee must satisfy six conditions: a written contract signed by the transferor to transfer immovable property for consideration, terms ascertainable from it, possession taken in part performance, some act in furtherance of the contract, and performance or willingness to perform his part.
- The Limitation Act bars only the remedy by suit or application, not a defence. A defendant may therefore raise part performance in defence of possession though he cannot enforce that right by suit.
- The appeals were allowed, the High Court's judgment set aside, and the matters sent back to the High Court to decide any other question of law.
Why it matters
The judgment settles that the shield of Section 53A of the Transfer of Property Act survives the expiry of limitation for a suit for specific performance. It lists the six conditions for invoking the section, uses the Special Committee's report as an aid to construction, and approves the Full Bench of the Bombay High Court in Mahadeo Nathuji Patil as laying down the correct law.
In the Court's words
Copied from the official judgment; each passage links to its page.
“We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation.”
“In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law.”
“It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action.”
Provisions interpreted
Case and bench
- Parties
- Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (D) by LRs.
- Case
- Civil Appeal No. 2706 of 1991 (with Civil Appeal Nos. 1349 of 1991, 1350 of 1991 and 3304 of 1993)
- Decided
- 22 January 2002
- Bench
- V.N. Khare, Ashok Bhan
- Opinions
- Unanimous. Judgment delivered by V.N. Khare, J.
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