defendant is not entitled to get benefit of S 53A of Transfer of property Act

This Court in Shrimant Shamrao Suryavanshi and
another vs. Pralhad Bhairoba Suryavanshi by Lrs. and others
(2002) 3 SCC 676, while tracing the incorporation of Section 53A in
the TP Act, vide Act of 1929, acting on the recommendations of the
Special Committee on the issue, had ruled that mere expiration of
the period of limitation for bringing a suit for specific performance
would not debar a person in possession of an immovable property
by way of part performance from setting up a plea, as
contemplated therein in defence to protect his possession of the
property involved. It was however underlined that if the conditions
precedent, as enumerated, in Section 53A of the Act, are complied
with, the law of limitation would not come in the way of the said
person to avail the benefit of the protection to his possession as
extended thereby even though a suit for specific performance of a
contract by him had gone barred by limitation. Explicitly therefore,
though mere expiry of the period of limitation for a suit for specific
performance may not be a bar for a person in possession of an
immovable property in part performance of a contract for transfer
thereof for consideration to assert the shield of Section 53A of T.P.
Act, it is nevertheless imperative that to avail the benefit of such
protection, all the essential pre-requisites therefor would have to be
obligatorily complied with.
27. In A. Lewis and another vs. M.T. Ramamurthy and others
(2007) 14 SCC 87, it was propounded that the right to claim
protection under Section 53A of T.P. Act would not be available, if
the transferee remains passive without taking effective steps and
abstains from performing his part of the contract or conveying his
readiness and willingness to that effect.
28. Added to this, to reiterate, is the proviso to Section 53A of T.P.
Act which excludes from the rigour of the said provision a
transferee for consideration, who has no notice of the contract or of
the part performance thereof.
29. In the contextual facts, as obtained herein, the materials on
record do not unmistakably demonstrate that the original
defendant during his lifetime and on his demise, his heirs i.e. the
respondents had been always and ever ready and willing to perform
his/their part of the contract and that the appellant/plaintiff had
notice either of the agreement for sale or the fact that the original
defendant had been in occupation of the suit premises by way of
part performance of the contract. 

30. Apropos, Section 16 of the Act, 1963, specific performance of
a contract cannot be enforced in favour of a person who, inter alia,
fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contract
which are to be performed by him unless prevented or waived by the
other party thereto. As mentioned hereinabove, though there is an
averment in the written statement that before the death of the
predecessor-in-interest of the vendors of the appellant/plaintiff, the
original defendant had requested him to execute the sale deed and
after his demise, he made similar demands with them, evidence is
jejune to irrefutably establish the readiness and willingness of his,
during his lifetime and after his death, of the respondents, to
perform his/their part of the contract. It is also not the case of
either the original defendant or the present respondents that
his/their performance of the contract had been either prevented or
waived by either the vendors of the appellant/plaintiff or their
predecessor-in-interest at any point of time.
31. Noticeably, the sale deed executed in favour of the
appellant/plaintiff and proved in evidence has not been annulled as
on date and is thus valid and subsisting.
32. On an overall view of the matter, we are of the opinion that
the conclusions recorded by the courts below are based on an
erroneous understanding of the prescriptions of Sections 53A of T.P.
Act. The determinations made thus cannot be sustained.
33. On an appraisal of the evidence on record, on the touchstone
of the above legal propositions, we are thus of the considered view,
that though the LPA preferred by the appellant/plaintiff is not
maintainable in law, the respondents are not entitled to the benefit
of the protection of Section 53A of the T.P. Act read with Section 16 of the Act, 1963.
REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOS. 4311-4312 OF 2017

VASANTHI
V
VENUGOPAL (D) THR. L.RS.
Dated:MARCH 21, 2017.
Citation: AIR 2017 SC 1569,(2017) 4 SCC723