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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 for the time being in force, the transferor or any person claiming under him shall 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.

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The learned Judge observed that a distinction must he drawn between a writing which is a reduction into writing of a previous oral agreement which will fall within the ambit of Section 53A of the Transfer of Properly Act, and a writing in which there is a mere reference to a previous oral agreement which will not attract the provisions of Section 53A of theTransfer of Property Act. The point of distinction would he whether an unregistered sale deed itself can he used for the purpose permissible under Section 53A of the Transfer of ProperlyAct. The writing referred to evidently does not mean any and every collateral writing wherein a reference to the oral agreement might be made. But the writing should be one evidencing the terms of the contract. It may he in the form of an agreement, or it may he some limes in the form of a draft sale deed which has for some reason or the other not been got registered. We have no doubt that such a draft sale deed

lease deed was prepared before the final thekapatra was to be executed. That was to ensure that there should be no difference of opinion, and no changes in the terms of the thekapatra. The learned Judges held that the draft itself could be used in proof of part performance as per Section 53A of the Transfer of Properly Act.

 

 

Madhya Pradesh High Court
Devisahai Premraj Mahajan vs Govindrao Balwantrao And Ors.
on 5 March, 1964
Equivalent citations: AIR 1965 MP 275
Author: P Tare
Bench: P Tare, H Krishnan

JUDGMENT

P.K. Tare, J.

 

53. Fraudulent transfer

(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.

Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.

Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

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It is now well settled that if objection is raised founded on Section 53Transfer of PropertyAct, such objection is distinct and separate from the defence referred to above. As it has been observed by Sir Lawrence Jenkins in — ‘Mina Kumari v. Bijoy Singh’, 44 Ind. App. 72, (P.C.) to attract the provisions of Section 53Transfer of Property Act. It must proceed on the footing that title has passed, but the document under which the title has passed is a voidable one. It is not open to a party to say that the provisions of section 53 are attracted as the document itself or the transaction was a sham one. The question whether Section 53Transfer of Property Act, would be attracted in the present case or not, whether such a defence had actually been raised by the defendant, and even if raised, such defence was available to him or not, would be an alternative claim which would be considered at the proper place later on. At this stage all that we are required to consider is whether the transaction itself was a real one or not.

 

 

Calcutta High Court
Purna Chandra Singha vs Sarojendra Kumar Dutta
on 16 July, 1951
Equivalent citations: AIR 1953 Cal 251, 56 CWN 740
Author: R Mookerjee
Bench: R Mookerjee, K Chunder

JUDGMENT

R.P. Mookerjee, J.

 

 

 

52. Transfer of property pending suit relating thereto

During the pendency in any court having authority 3[4[within the limits of India excluding the State of Jammu and Kashmir] Government or established beyond such limits] by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

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52Transfer of Property Pending suit relating thereto.- During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the propertycannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

adjudication of the case. In so far as Section 52 of the Transfer of Property Act is concerned, it provides a statutory bar on the parties from transferring any interest in the subject matter of theproperty and on this basis it is to be tested that the said alienation is non-est in the eye of law and the party could be governed by the final verdict in the proceedings. The outstanding feature in the provision is that the above said legal consequences would not occur if the alienation were made under the authority of the Court. It is well nigh settled that lis pendens has to be treated as a constructive notice to a purchaser and that he is bound by a decree to be passed in the pending suit.

18. After referring to the relevant decisions on this point the Apex Court has expressed its view that when the purchaser obtained the property during the pendency of the suit without seeking leave of the Court, as required by Section 52 of the Transfer of Property Act, he being a transferee pendente-lite, cannot pray the Court as of right to seek impleadment as a party in the suit. It is also stated that there is no absolute rule that the transferee pendente-lite, without leave of the Court, in all cases allowed to be joined

If it is not shown that the purchase was made without the knowledge of the Court then he disqualifies himself to get impleaded in the suit. The statutory bar contained in Section 52 of theTransfer of Property Act would operate against the person to enter into the suit who is a transferee pendente lite since the transfer is non-est in the eye of law. Such transferee would be entitled for the right of the transferor alone and nothing more. Whatever be the decree, which adjudicates the rights of the transferor, the transferee pendente lite shall be bound by it. It is needless to elaborate the term "under authority of the Court" incorporated in Section52 of the Transfer of Property Act. A party who intends to get transfer of property during the pendency of the suit has to get sanction from the Court.

 

Madras High Court
Rajalakshmi Sivakumar vs N. Rajavelu

DATED : 23..01..2009

CORAM:

THE HONOURABLE MR. JUSTICE S. PALANIVELU

C.R.P. (P.D.) Nos.4315 and 4316 of 2008

and M.P.Nos.1 of 2008

Rajalakshmi Sivakumar … Petitioner

Vs

1. N. Rajavelu

2. Sanjeevi

3. Munuswami

4. Pushpa

5. Kamala Subramanian

6. Selvam

7. Kasthuri Selvam

8. J. Saraswathi Ammal … Respondents

 

 

ORDER IV OF C.P.C. INSTITUTION OF SUITS.

ORDER IV
INSTITUTION OF SUITS

1. Suit to be commenced by plaint

(1) Every suit shall be instituted by presenting a 1[plaint in duplicate to the Court] or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

2[(3) The plaint shall not be deemed to by duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).]

ORDER V
ISSUE AND SERVICE OF SUMMONS

Issue of Summons

1 Summons

1[(1) When a suit has been duly instituted, a summons may issued to the defendant to appear and answer the claim and to file the writ statement of his defence, if any, within thirty days from the date of service summons on that defendant;

Provided that no such summons shall be issued when a defendant has appeal at the presentation of the plaint and admitted the plaintiff’s claim :

Provided further that where the defendant fails to file the written statement wit! the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but whi shall not be later than ninety days from the date of service of summons.;]

(2) A defendant to whom a summons has been issued under sub-rule (1) m appear—

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relati to the suit, or

(c) by a pleader accompanied by some person able to answer all such question.

(3) Every such summons shall be signed by the Judge or such officer as appoints, and shall be sealed with the seal of the Court

148A. Right to lodge a caveat.

1[148A. Right to lodge a caveat.

(1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.

145. Enforcement of liability of surety.

Where any person 1[has furnished security or given a guarantee]-

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree, or

(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon,

2[the decree or order may be executed in the manner therein provided for the execution of decree, namely :-

(i) if he has rendered himself personally liable, against him to that extent;

(ii) if he has furnished any property as security, by sale of such property to the extent of the security;

(iii) if the case falls both under clauses (i) and (ii) then to the extent specified in those clauses,

and such person shall, be deemed to be a party within the meaning of section 47 :]

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.