1. This appeal has been filed by the defendant against the judgment and decree of the Additional District Judge, Jullundur, dt. 20th May, 1975.
2. Briefly, the facts are that Ram Parkash plaintiff No. 1 and Hans Raj father of plaintiffs Nos. 2 to B (now respondents 4 to 8) were the owners of the property in dispute and Teja Singh defendant was the tenant under them. The plaintiffs filled an application for ejectment against the defendant under the Punjab Security of Land Tenures Act. The defendant contested the application and denied the relationship of landlord and tenant. He inter alia pleaded that plaintiff No. 1 and Hans Raj had entered into an agreement dated 8th July, 1959 to sell the land to him, The application was dismissed by the Assistant. Collector. It was averred that even if there was an agreement between plaintiff No. 1 and Hans Raj on the one side and the defendant on the other, that was unlawful for the reason that the property was a joint Hindu family property. It was further averred that the defendant also committed breach of the agreement as he failed to perform his part of the same. Consequently, they filed a suit for possession against the defendant.
3. In the written statement, the defendant controverted the allegations of the plaintiffs and inter alia pleaded that he was in possession of the land in part performance of the agreement dated 8th duly, 1959, and was always ready and willing to perform his part of the agreement and is prepared to do so even now, but the plaintiffs have failed to perform their part of the agreement. He further stated that a sum of Rs. 740/- was due from him to the plaintiffs, which they were not ready to receive from him. Some other pleas were also taken by the defendant which are reflected in the issues. On the pleadings. of the parties, the following issues were framed:--
1. Whether the suit is not maintainable in the present form? OPD
2. Is the suit not properly valued for purposes op court-fee and jurisdiction? OPD
3. Whether Khata and Khatauni numbers of the suit land are necessary to be given? If so, to what effect? OPD
4. Whether plaintiffs Nos. 4 to 6 are also legal heirs of Hans Raj deceased OPP
5. Whether Hans Raj deceased and plaintiff No. 1 executed an agreement to sell the sat land in favour of defendant? OPD
6. If issue No. 5 is proved, whether Said agreement is illegal, unlawful, incorporative as alleged in para 5 of the plaint? OPD
7. Whether defendant has acquired title by adverse possession? OPD
8. Whether defendant is estopped and barred from claiming any title on account of adverse possession? OPP
9. Whether the defendant is in possession of the land in suit in pursuance of the alleged agreement to sell? OPD
The trial Court decided issues Nos. 1, 2 and 7 against the defendant and issues Nos. 5 and 9 in his favour. Issue No. 3 was not pressed. Issues Nos. 4 and 8 were decided in favour of the plaintiffs and issue No. 6 against them. The Court further held that the defendant was ready and willing to perform his part of the agreement. In view of the aforesaid findings, it dismissed the suit of the plaintiffs. On appeal, the findings on the above said issues, except that on issue No. 9, were not challenged. The contentions raised before the Additional District Judge were that the defendant was not in possession of the property in part performance of the agreement, that he did not do any act in furtherance of the agreement and that he was not ready and willing to perform his part of the agreement. The Additional District Judge rejected the first contention and accepted the latter contentions. Consequently, he accepted the appeal and decreed the suit of the plaintiffs. The defendant has come up in second appeal to this Court.
4. Mr. Rana submits that the appellant had paid several installments of the price in furtherance of the agreement that he is still willing to perform his part of the agreement and that the findings of the Appellate Court to the contrary are erroneous. On the other hand, Mr. Majithia has argued that the appellant committed breach of agreement, firstly in Jan. 1961, and then in June, 1961 when he did not pay the due installments. Thereafter, he was not ready and willing to perform his part of the agreement as he was not inclined to pay the balance amount to the respondents. According to him, the appellant, therefore cannot take the benefit of S. 53A of the Transfer of Property Act (hereinafter called 'the Act') and findings of the first Appellate Court are unassailable.
5. I have given due consideration to the arguments of the learned counsel. In order to determine the question, it is necessary to read S. 53A, which is as follows:
'53A. Part-performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
and the transferee has, in part-performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that the contract, though required to be registered; has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law from the time being in force; the transferor or any person claiming under him all be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly. provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part-performance thereof.'
It is evidence that the necessary conditions for application of the section are firstly, that there should be a contract to transfer for consideration any immovable property; secondly, that the contract should be in writing and its terms can be ascertained with reasonable certainty thirdly, that the transferee in part-performance of the contract has taken possession of the property or any part thereof or if he is already in possession, he continues in possession in part-performance of the contract; fourthly, that the transferee has done some act in furtherance of the contract; and fifthly, that the transferee has performed or is willing to perform his part of the contract.
6. It is not disputed that the agreement is of sale of immovable property for consideration and is in writing from which the terms of the contract can be ascertained with reasonable certainty. Both the Courts have given a concurrent finding that the defendant-appellant was in possession of the property in part-performance of the contract. This finding has not been challenged by the counsel for the respondents and, in my view, rightly. The appellant was already in possession of the land at the time of the agreement as a tenant. The defendant-appellant has led evidence that he did not pay any rent after he entered into the agreement for purchase of the land. A reference in this regard may be made to the statements of Ishar Singh DW 2 and Kartara Ram DW 3. Both of them said that the defendant did not pay any Batai etc. to the owners. Their statements find support even from the Khasra Girdawari wherein he has been shown to be in possession of the land on account of sale. The respondents have not been able to show that the appellant had been paying Batai etc. to them. Therefore, I am of the opinion that the finding of the Courts below that the appellant was in possession of the land in part-performance of the contract is unassailable.
7. Now, it is to be seen whether the transferee had done some act in furtherance of the agreement. The agreement for sale was entered into between the parties on 8th July, 1959. The sale consideration was fixed as Rs. 3,200/- out of which Rs. 500/- were paid at the time of the agreement and the balance amount was to be paid in five installments, the four installments were of Rs. 500/- each and the last installment was of Rs. 700/-. The installments were to be paid in Jan. 1960, June, 1960, Jan. 1961, June, 1961 and Jan. 1962. It is not disputed that the appellant paid the installments which became due in Jan. 1960 and June 1960, in time. Regarding the installment which felt due in Jan. 1961, he paid the amount of Rs. 460/- in May, 1961. In June, 1961, Hans Raj, one of the transferors, died. Therefore, the subsequent installments were not paid by the appellant. He served a notice dated l5th Dec. 1961, on the respondents that he would pay the installments; after the mutation in the names of the deceased's heirs was attested. From narration of the facts, it is evident that in part-performance the agreement, he paid the first two installments in time and the third installment a few months after the due date. It was by the transferors. It is well-settled that regarding the sale of immovable property, time is not of the essence of the contract unless it is proved that the parties intended that the time would be of the essence the contract. Therefore, if there is some deay in payment of the consideration, the contract does not stand rescinded. It is also a well-settled that if the amount of consideration is to be paid the transferee in the installments and he does not pay the same by the due dates, the transferor, having accepted irregular payments, shall be deemed to have waived his right to insist upon regular payments. In this regard, reference may be made to a Division Bench judgment of the Mysore High Court in Rahmat Unnissa Begum v. Shimoga Co-operative Bank Ltd., AIR 1951 Mys 59. In that case, the plaintiff entered into an agreement with the defendant in January 1941, certain property for Rupees 1,400/- and a sum of Rs. 200/- was to be paid as part of the purchase money and the balance in monthly installments of Rs. 15/-, the entire amount being payable by the end of Dec. 1947. It was agreed that if any one installment was not paid, the property could be otherwise disposed of by the transferor. The plaintiff was irregular in paying the installments but the defendants went on accepting the same. It was held that by accepting the irregular installments the transferor has waived his right to insist upon regular payments and the transferee was lulled into the belief that if he paid the full amount by the end of Dec. 1947, the transferee would convey the property to him. In view of the above position, I hold that the appellants in this case by making payment of three installments has done some act in furtherance of the agreement. Consequently, I set aside the finding of the Appellate Court in this regard.
8. Lastly, it is to be seen whether the appellant is willing to perform his part of the contract. From the language of the section, it is clear that the material date on which the transferee should be willing to perform his part of the agreement is that on which the section is sought to be made use of by him. For determining it, a reference may be made to the statement of the appellant. He admitted the agreement and did not refuse to pay the balance amount of consideration. Even during hearing of the appeal Mr. Rana made a statement that the appellant was ready to pay the balance amount. It a true that he took a plea in the written statement that an amount of Rs. 740/- was due from him and he made a similar statement. The Courts below came to the conclusion that an amount of Rs. 1,240/- was due from him and Mr. Rana has not challenged that finding. Rather, he says that the appellant is ready to pay the amount. In order to avoid further litigation, he has given an undertaking that the amount wil1 be deposited in the Court for payment to the plaintiffs within four months. It appears that the mistake regarding the balance amount was on account of arithmetical calculation. From the aforesaid circumstances, I feel convinced that the appellant is willing to perform his part of the contract. A simi1ar matter came up before the Mysore High Court in Nanjedevaru v. H. V. Rama Rao, AIR 1959 Mys 173. In that case, the defendant took a plea that he was in possession of the property in part performance of the contract and therefore, protected under S. 53A. In appeal, an offer was made by this counsel to deposit the balance amount. The Court held that the defendant was entitled to the benefit of the said section. The relevant observations are as follows (at pp 175-76):--
'Apart from this as Mr. Krishnamurthi himself admitted before me, the condition as to willingness must subsist up to the date of hearing of the matter, i.e. even up to the date of hearing of the appeal. I put to the learned Advocate for the appellant whether or not he was willing to deposit it the sum of Rs. 1 350/- in the trial Court and he expressed his willingness to do so and gave an undertaking on behalf of his client to that effect.
In my opinion, therefore, it must be held that the transferee was willing to perform his part of the contract.'
The first Appellate Court was of the opinion that the appellant was required to prove that he had always been ready and willing to perform his part of the agreement. In my view, the interpretation put by the Court on the section was erroneous.
9. For the aforesaid reasons, I accept the appeal, set aside the judgment and decree of the appellate Court and dismiss the suit of the plaintiffs. No order as to costs.
10. Appeal allowed.