P.R. Sharma, J.
1. This is a defendant's Second Appeal against the judgment and decree dated the 12th of October, 1960 passed by the Addl. District Judge Gwalior, in Civil Appeal No. 57-A of 1960.
2. The facts giving rise to the suit out of which the present appeal arises axe that the present appellant entered into an agreement on 9-3-1956 for purchase of the house in dispute for a sum of Rs. 4500/- from its owner Babulal. Surajmal and Kanhaiyalal with prior knowledge of this agreement purchased the said house on 7-4-1956 from Babulal for a Sum of Rs. 6000/- under a registered deed. The defendant was at the time of the sale occupying a shop forming part of the said house on a rent of Rs. 12/-/- p.m. On 26-5-1956 the present respondents served a registered notice on the defendant demanding arrears of rent from 7-4-1956.
This notice was followed by another dated 9-7-1956 terminating the defendant's tenancy with effect from the 7th of September, 1956 or in the alternative from 10-9-1956. This notice also contained a demand for the arrears of rent. The defendant thereupon filed a suit against the plaintiffs and their predecessor-in-title Babulal for specific performance of the contract dated 9-3-1956 with Babulal for the purchase of the house, of which the suit accommodation forms a part. The plaintiffs on the other hand filed the present suit on 25-9-1956 for eviction of the defendant from the premises under his occupation.
3. The defendant contended, inter alia, that the plaintiffs were purchasers of the house in question with notice of his prior contract with Babulal. They were, therefore, according to his contention not entitled to recover any rent from him or to eject him. The defendant further alleged that he had offered to pay the arrears of rent under protest to the plaintiffs but the latter did not accept the offer. He, therefore, contended that the suit was not maintainable.
4. The trial Court held that the plaintiffs were the purchasers of the house in question with notice of the prior agreement entered into by Babulal in favour of the defendant for sale to him of the house in question. It further held that an offer to pay rent under protest was tantamount to refusal to pay the arrears of rent as such and that the defendant was, therefore, liable to be evicted u/s. 4-A of the M.P. Accommodation Control Act, The trial Court held that the plaintiffs did not genuinely require the premises for their own business. It, however decreed the plaintiffs' suit for ejectment on the basis of non-payment of rent.
5. On appeal it was held by the learned Addl. District Judge that 'the appellant had not set up a case in defence of his possession under S. 53-A of the Transfer of Property Act, and that he could not invoke the aid of that section, since he was in possession of the suit accommodation even after the alleged un-registered contract of sale dated the 9th of March, 1956 with Babulal as his tenant. It was further held by the lower appellate Court that the provisions of Section 91 could be availed of by the present appellant only when he won in the suit for specific performance of the contract of sale.
Till such, a sale-deed is executed, in consequence of the decree in the suit for specific performance, by the subsequent purchaser in favour of the present appellant, the latter cannot, on the strength of the prior agreement acquire any title to the property agreed to be sold. Reliance was placed by the learned Judge for this observation on the decision in Appa Rao v. Veeranna, AIR 1953 Mad 409.
6. In support of the present appeal the learned counsel for the appellant urged several grounds; Firstly he contended that the lower Courts erred in holding that the present, appellant has not tendered the amount of arrears of rent. In paragraph 4 of his written statement the defendant stated that he had both prior to as well as after the receipt of the plaintiffs' notice offered to pay the rent under protest, but that the plaintiff was not prepared to state in writing the fact that the rent had been paid under protest.
In his deposition the defendant stated that he did not remit the amount of arrears of rent after receipt of the notices because he had verbally informed that he was willing to pay ^^vkil ds rksj ij**
In his reply Ex. D/2 to the plaintiff's notice the defendant did not, however, make any statement about his preparedness to pay the rent under protest. The decision in Ram Krishna v. Mohd. Yahia, AIR 1960 All 482 on which reliance was placed by the learned counsel for the appellant can have no application to the present case.
The question in that case was whether a fender of payment made prior to the receipt of the notice could be considered in determining whether the defendant was not in default. That obviously is not the case here. The defendant by denying the title of the plaintiff to the land in the replies sent by him to the plaintiffs notices and also having asserted that he had no right to recover any rent from him must be deemed to have made default in payment of the arrears of rent.
I have already shown above that his plea in this behalf as taken in the written-statement is not consistent with his own statement on oath. I would, therefore, hold that the defendant did not pay the arrears of rent nor offered to pay the same as rent prior or subsequent to the receipt by him of the plaintiff's notices. On the other question raised before me, I am of the opinion that the defendant did not in his written-statement state the facts necessary to make out a case of part performance under Section 53A of the Transfer of Property Act, Section 53A of the Transfer of Property Act requires that the party relying on the Section has either fulfilled or is prepared to fulfil his part of the bargain. This fact must be pleaded by him. (See -- Pusaram Maniklal v. Deorao Gopalrao, AIR 1947 Nag 188.)
7. The effect of the provisions of Section 91 of the Indian Trusts Act is that a subsequent purchaser of property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favour the prior agreement to sell has been executed to the extent it is necessary to give, effect to that contract. The only result of this provision will be that if the present appellant succeeds in his suit for specific performance of the contract, the plaintiff in the present suit will by virtue of the provisions of Section 91 of the Indian Trusts Act be deemed to be in possession of the property in trust for the present appellant.
But that does, not mean that till a final decision has been reached the contract creates a right in the present appellant to refuse to surrender possession of the premises, even if such possession was obtained by him not in part performance of the contract but in his capacity as a tenant. There is nothing on the record of the present case to show that the defendant after the execution of the agreement to sell the tenanted property did in exercise of his act of ownership did anything by way of an assertion that his status as a tenant no longer subsisted. Having entered into possession as a tenant and continued to remain in possession in that capacity the defendant cannot, in my opinion, be heard to say that by reason of the agreement to sell his possession is no longer that of a tenant.
8. In this view of the matter the case in Ghasiram v. Shankarlal, AIR 1960 Madh Pra 3, can have no application to the facts of the present case. In that case the only question which arose for consideration was whether the two mortgages executed after the agreement to sell would bind the person in whose favour the agreement to sell had been executed. No question arises in the present case whether the sale effected in favour of the plaintiff is binding on the present appellant. That is a matter yet to be decided in the suit for specific performance of the contract.
The case in Babu Apaji v. Kashinath Sadoba, ILR 41 Bom 438 : (AIR 1916 Bom 1) (FB) on which reliance was placed by the learned counsel for the appellant has been discussed at page 277 of Mulla's Transfer of Property Act (4th Ed.) The vendor in such a case is no doubt under some obligations similar to those of a trustee, but to treat the contract of sale as equivalent to a declaration of trust is an infringement of Section 5 of the Indian Trusts Act, 1882. (See--Official Assignee v. M. E. Moolla Sons Ltd. ILR 12 Rang 589 : (AIR 1935 Rang 84).)
The correct statement of the law as pointed out by the learned author is as stated by Lord Macmillan in Pir Bux v Mohomed Tahar 61 Ind App 388 : (AIR 1934 PC 235) in which it was laid down that an averment of the existence of a contract of sale, whether with or without an averment of possession following upon the contract is not a relevant defence to an action of ejectment in India.
9. Having given my anxious consideration to all the points urged by the learned counsel for the appellant in support of this appeal I am of the opinion that the present appellant cannot till he succeeds in his suit for specific performance of the contract enforce the equities in his favour as against the plaintiff in the present suit, especially because in the present case his possession throughout has been that of a tenant and never in part performance of the contract.
10. I would, for the reasons stated above,hold that this appeal has no force. It is hereby dismissed with costs.