Part performance of Contract — Conditions — The Limitation Act does not extinguish the defence, it only bars the remedy — Section 53A does not confer a title on transferee in possession — Transfer of Property Act, section 53A.

The suit of the plaintiff seeking possession of the suit property had been dismissed. The case of the plaintiff was that the defendants had entered into an agreement to sell dated 13-11-1992 with the father of the plaintiff, namely, Sh. Mangat Ram for the purchase of the aforenoted suit property; total consideration was Rs.2,80,000; a sum of Rs.1,05,000 was paid to Sh. Mangat Ram; the defendants agreed to pay the balance consideration on or before 13-9-1993. The balance amount was not paid. The defendants requested Sh. Mangat Ram to cancel the agreement; the defendants had agreed to vacate the property within three to four months. Sh. Mangat Ram expired on 21-4-1997. In spite of requests of the plaintiff to the defendant to vacate the suit property as also the legal notice dated 22-12-2001, the defendants failed to adhere to the said request. Thereafter the suit seeking possession of the suit shop as also damages at the rate of Rs.5,000 per month was claimed. The defendant took defence of part performance of contract u/s.53.

The Court observed that the conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:

(a) That the transferor has contracted to transfer for consideration any immoveable 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;

(b) That the transferee has in part performance of the contract take possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;

(c) That the transferee has done some act in furtherance of the contract; and

(d) That the transferee has performed or is willing to perform his part of the contract.

The provision does not confer a title on the transferee in possession; it only imposes a statutory bar on the transferor. In the instant case, it is not in dispute that an agreement to sell dated 13-11-1992 had been executed by Mangat Ram (the father of the plaintiff) qua the disputed shop in favour of the defendant.

The essential ingredients of the doctrine of part performance had been made out entitling the defendant to seek shelter and protection under this statutory provision. Admittedly in terms of the agreement the defendant was put in possession of the suit shop. The defendant had been given possession of the suit shop; it has also been proved on record that a sum of Rs.2,15,000 had been paid by the defendant to the plaintiff in part performance of the contract; he was also ready and willing to perform his part of the contract and in fact his case was that the balance consideration had also been paid by him to the plaintiff. The case of the plaintiff on the other hand was that this amount had been returned back and a sum of Rs.80,000 had been paid. This document was rightly disbelieved; it did not even bear the signatures of Mangat Ram. In view of agreement to which there was no denial the defendanttransferee is entitled to protect his possession over the suit property taken in part performance of the contract even if the period of limitation to bring a suit for specific performance has expired. The Limitation Act does not extinguish the defence; it only bars the remedy.