JUDGMENT

M. Karpagavinayagam, J.

1. Veerabadra Naicker, the appellant herein is the defendant.

2. Sambanda Naicker, the respondent herein filed a suit for declaration of his title to the suit properties and for recovery of possession of the same. The trial Court dismissed the suit. Aggrieved by the same, Sambanda Naicker, the plaintiff, respondent herein filed an appeal before the lower appellate Court, which in turn allowed the appeal and decreed the suit. Hence, this second appeal.

3. The case of the plaintiff is as follows:

"The suit properties originally belonged to one Adhikesavalu Naidu. The said Adhikesavalu Naidu purchased the said properties as per the sale deed dated 1.11.1966. On 5.1.1977, he sold the properties to Sambanda Naicker, the plaintiff as per the registered sale deed. When the plaintiff attempted to take possession of the suit properties after his purchase, the defendant obstructed the plaintiff from taking possession. However, on the intervention of the Panchayatdars, the defendant agreed not to interfere with the plaintiff's possession. From then onwards, the plaintiff was in possession and enjoyment of the suit properties. Patta was transferred in his name. The plaintiff was also paying kists for the suit properties. In 1981 January, the defendant claiming a portion of the suit properties as his own, trespassed into the properties and took possession forcibly. Hence, the suit for declaration of title and for recovery of possession."

4. The case of the defendant is as follows:-

"The defendant entered into an agreement on 16.4.1974 with Adhikesavalu to sell some of his properties to Adhikesavalu. On the same day, another agreement was entered into between Adhikesavalu and the defendant by which Adhikesavalu agreed to sell his suit properties and other properties. On the date of agreement itself, the defendant was put in possession of the suit properties. The plaintiff was fully aware of the agreement. Even before the purchase of the properties by the plaintiff, the plaintiff was put on notice by the defendant about the agreement of sale. The sale deed was executed by Adhikesavalu in favour of the plaintiff due to the collusion between them. There was no Panchayat and the plaintiff was never in possession of the suit properties. He is enjoying the suit properties as part performance of the agreement of sale dated 16.4.1974. Hence, the plaintiff is not entitled to the relief of declaration and possession."

5. On the above pleadings, necessary issues were framed. On the plaintiff's side, the plaintiff examined himself as P.W.1 and examined one Lakshmipathy as P.W.2 and marked Exs.A1 to A7. The defendant examined himself as D.W.1 and marked Exs.B1 to B20.

6. After considering the evidence on record, the trial Court dismissed the suit. However, in the appeal filed by the plaintiff, the suit was decreed granting the relief of declaration and recovery of possession. Hence, the second appeal.

7. At the time of admission of the second appeal, the following three substantial questions of law were formulated by this Court by the order dated 3.10.1988:

1) Whether the appellant is entitled to be protected in regard to the possession of the suit properties obtained under the agreement dated 16.4.1974 from the owner, applying the principles of Section 53A of the Transfer of Property Act?

2) Whether the truth of the agreement dated 16.4.1974 between the appellant and the owner Adhikesavalu could be established by letting a secondary evidence in the shape of the Exhibits B.2 to B.8 and B.20?

3)Whether the possession of the suit properties with the appellants and the notice Ex.B.20 dated 21.2.1977 sent to the vendor under Ex.A.2 before registration of sale deed would be sufficient in law to hold that the plaintiff/respondent was put on notice of the agreement dated 16.4.1974 between the appellant and the owner for the sale of the suit properties to the appellant and that therefore the plaintiff-respondent was not a bona fide purchaser for value?

8. In elaboration of the above substantial questions of law, Mr. Veeraraghavan, the counsel appearing for the appellant/defendant has made the following contentions:

(1) Under an agreement dated 16.4.1974 executed between the defendant/appellant and the owner Adhikesavalu, Adhikesavalu agreed to sell the suit properties and other items of lands to the defendant and pursuant to the said agreement, the defendant was put in possession of the suit properties on the date of the agreement that defendant has performed his part of the obligations under the agreement and that therefore, his possession of the suit properties in part performance of agreement sale is protected under Section 53A of the Transfer of Property Act.

(2) The plaintiff/respondent is not a bona fide purchaser for value without notice of the prior agreement of sale dated 16.4.1974 executed by Adhikesavalu in favour of the defendant and that therefore, as a subsequent transferee under the registered sale deed Ex.A2 dated 5.1.1977 executed by the owner Adhikesavalu, the plaintiff is not entitled to be granted the relief of recovery of possession from the defendant.

(3) The owner Adhikesavalu on 16.04.1974 having entered into lawful agreement to sell the suit lands to the defendant and put the defendant in possession of the same, the subsequent transfer of the suit lands by sale under the registered sale deed dated Ex.A2 dated 5.1.1977 executed in favour of the plaintiff/respondent cannot override the prior agreement dated 16.4.1974 in favour of the defendant and that therefore, the plaintiff had no title to the suit lands to recover possession of the suit properties.

9. In reply to the above contentions, Mr. Nageswaran, the counsel for the respondent would make the following submissions:

"The appellant is not entitled to be protected in regard to the possession of the suit properties obtained under the agreement dated 16.4.1974 under Section 53A of the Transfer of Property Act, since the main ingredients, namely the existence of an agreement in writing, in pursuance of which the defendant was put in possession and the willingness to perform his part of the contract on the side of the defendant have not been established by the defendant, who wants protection under the said section and as such, the rights of a transferee, viz., the plaintiff for consideration who has no notice of the contract or of the part performance cannot be affected, in view of the fact that there is no material placed by the defendant that before the purchase, the plaintiff was put on notice."

10. Both the counsel have also filed their written submissions. They would cite several authorities, which we shall see later.

11. I have heard the counsel for the parties and I have given my anxious consideration to the rival contentions and also gone through the records.

12. The fact that the suit properties belonged to Adhikesavalu Naidu and the said Adhikesavalu Naidu sold the suit properties through Ex.A2, the registered sale deed dated 5.1.1977 in favour of the plaintiff cannot be seriously disputed.

13. According to the plaintiff, he is entitled to declaration of title on the basis of Ex.A2 and initially, he was not able to take possession of the properties because of the obstruction by the defendant, but due to the intervention of the Panchayatdars, he took possession of the suit properties and he has been in enjoyment of the same and in 1981, the defendant trespassed into the properties and took possession.

14. According to the defendant, on 16.4.1974, an agreement was entered into between the defendant and Adhikesavalu Naidu by which Adhikesavalu Naidu agreed to sell the suit properties along with other properties for sale consideration and on that date, in pursuance of the said agreement, he was put in possession and thereafter, he has been in possession and at that time of alleged purchase, the plaintiff was put on notice by the defendant about the agreement of sale and his possession and as such, the plaintiff is not a bona fide purchaser and the defendant's possession is protected under Section 53A of the Transfer of Property Act.

15. The plaint and the evidence adduced by the plaintiff would indicate that the plaintiff was not aware of the existence of the agreement dated 16.4.1974 between Adhikesavalu Naidu and the defendant and before the execution of the sale deed, the plaintiff was not put on notice by the defendant that he was in possession of the suit properties in pursuance of the said agreement. These things would show that the specific stand taken by the plaintiff is that he was a bona fide purchaser, who has no notice of the agreement of sale.

16. On the other hand, it is specifically pleaded by the defendant both in the written statement that the plaintiff was aware of the agreement and possession by the defendant and the alleged purchase is only due to the collusion between the plaintiff and Adhikesavalu Naidu.

17. The plaintiff has produced the documents Exs.A1 and A2 to show that the properties were purchased by him from Adhikesavalu Naidu on 5.1.1977. Ex.A1 is the sale deed which was executed by the original vendor to Adhikesavalu Naidu. According to the plaintiff, the said original sale deed Ex.A1 was handed over by Adhikesavalu Naidu to the plaintiff at the time of sale of the suit properties. Though Ex.A2 dated 5.1.1977, it was registered only on 16.3.1977. Though the stamp papers of Ex.A2 are dated 13.8.1976 which are standing in the name of the plaintiff, the document has been written only on 5.1.1977. Thereafter, after three months, the same was registered on 16.3.1977.

18. According to the plaintiff, he was not aware of the agreement and only when he went to the field after registration of the deed, he was obstructed by the defendant on the strength of some agreement.

19. Both in the chief examination and cross-examination, P.W.1, the plaintiff would emphatically state that he was not put on notice about the agreement and possession. The relevant portion in the chief examination is as follows:

@mg;go mf;hpbkz;l; ,Ug;gJ vdf;F bjhpahJ/ mg;go mf;hpbkd;l; gw;wp gpujpthjp K:yk; Mjpnfrtd; brhy;ypaJ ,y;iy/@

In cross-examination, he would state as follows:

@fpuak; th';fpa xU tUlj;jpw;Fs; 10?12 khjj;Jf;Fs; th';fpa ,lj;Jf;F nghndd;/ mth; tuf;TlhJ vd;W jLj;jhh;/ mjdhy; me;j ,lj;Jf;F nghf Koatpy;iy vd;why; Vd; jLf;fpwha; vd;W nfl;nld;/ mg;gjhd; mth; mf;hpbkz;l bra;jpUg;gjhf brhd;dhh;/ ve;j njjpapy; mf;hpbkz;l; vd;W brhy;ytpy;iy/ Mjpnfrtd; mf;hpbkz;l; gw;wp mg;nghJ nfl;nld;/ mf;hpbkz;l;il gw;wp rk;ge;jk; gLj;jhnj cdf;F fpuak; bfhLj;Jl;nld;/ epy';fis vLj;Jf; bfhs; vd;why; rhpahk;/ hp$p!;l;nu&d; Mfp tUlk; fHpj;J nghd nghJ jhd; mf;hpbkz;l; gw;wp bjhpa[k;/@

The reading of the deposition of P.W.1 would not reveal that anything was culled out from him to indicate that he was aware of the possession of the defendant in pursuance of the agreement.

20. Besides that, Ex.B9 dated 28.7.1977, the lawyer notice sent by the plaintiff to Adhikesavalu Naidu and the defendant would show that the plaintiff demanded Adhikesavalu Naidu to secure possession of the suit properties as per the sale deed dated 5.1.1977 as he was being obstructed by Veerabadra Naicker, the defendant. The said notice sent by the plaintiff would further reveal that the defendant Veerabadra Naicker did not disclose to him the nature of title under which the defendant obstructed to his taking possession. The relevant portion of the notice is this:

"The first of you (Adhikesavalu Naidu) has covenanted under the deed that there is no defect in title and that if any found the first of you (Adhikesavalu Naidu) would clear the same and then give perfect title and possession to my client being a bona fide purchaser for until while my client want to take possession of the property the second of you (Veerabadra Naicker) obstructed my client from having possession and the second of you (Veerabadra Naicker) is creating a cloud on the title of the property. .......My client does not admit the claim of the second of you (Veerabadra Naicker) to my client from taking delivery of possession of the properties. Second of you (Veerabadra Naicker) has not so far disclosed to my client or anybody as to his title under which such obstruction is caused."

21. Admittedly, this notice dated 28.7.1977 sent by the plaintiff to Adhikesavalu Naidu and the defendant was received by the defendant and the said notice has been marked as one of the defendant's documents, namely Ex.B9. It is admitted in the cross-examination by D.W.1, the defendant that there is no reply to this notice.

22. So, these documents would show that either before 5.1.1977, the date of execution of the sale deed or prior to 16.3.1977, the date of registration of the sale deed or up to 28.7.1977, the date of notice sent by the plaintiff to the defendant and Adhikesavalu Naidu, he was not put on notice about the possession of the defendant in pursuance of the agreement.

23. It has been specifically mentioned in Ex.B9 dated 28.7.1977 by the plaintiff that he is a bona fide purchaser. Even then, no reply was sent by the defendant intimating that the plaintiff was already put on notice about the agreement. That apart, the defendant never alleged either in the written statement or in his evidence that the plaintiff received his notice prior to the execution of the sale deed.

24. It is the case of the defendant that notice Ex.B20 was sent to Adhikesavalu on 21.2.1977. Though the notice was addressed to four persons including the plaintiff, no evidence was let in that the notice was sent to the plaintiff also and the same was received by him. As a matter of fact, Ex.B20 was marked through D.W.1 only in the further chief examination. Even in that, the defendant would state that he sent notice Ex.B20 to Adhikesavalu. He never stated either in the chief examination or in the cross-examination that he sent notice dated 21.2.1977 to the plaintiff and the same was received by him prior to the registration of the document dated 16.3.1977.

25. Under those circumstances, there is no difficulty in holding that the plaintiff is a bona fide purchaser of the suit properties.

26. The main thrust of the argument is that the appellant/defendant is entitled to protection under Section 53A of the Transfer of Property Act and as such, the plaintiff would not be entitled to declaration and possession.

27. Under Section 53A of the Transfer of Property Act, whenever a claim is raised for protection under that section, the claimant has first to establish not only an agreement in writing, on which the claim is founded, but also the other elements, required on his part for attracting the section, that is, its main part as distinguished from its proviso, viz., that either he has taken possession of the disputed property, in whole or in part, in performance of the agreement, or, if he was already in such possession, he has continued in possession in part performance of the said agreement and has done some act in furtherance of the contract. Further, he has either performed his part of the said contract, or is willing to perform the same, and it is only when these acts are established, the claimant can be said to have established his claim under Section 53A.

28. When such a claim is established, it may be defeated by his adversary claiming title by showing that he was a bona fide purchaser of transferee for value without notice of the claimant's claim or agreement or the part performance thereof and is, as such, entitled to the benefit of the proviso to the section.

29. The purpose of the proviso merely is to defeat a claim which would otherwise, have succeeded under the main part of the section. The question of this proviso does not arise until and unless the claimant has substantiated his claim under the main part of the section.

30. As we have held above, though there are materials to show that the plaintiff was not aware of the agreement before the purchase, we can now see whether the defendant, in the present case, has complied with the requirements of Section 53A.

31. It is settled law that if the defendant fails to establish the said requirements, the proviso would not come into the picture at all and, whether the plaintiff has or has not notice of the defendant's agreement or the part performance thereof, he will be entitled to succeed, as pointed out in the decisions in MAHIBUDDIN v. DANDIRAM (A.I.R.1966 ASSAM & NAGALAND 46), PROVA RANI v. LALIT MOHINI , YASODAMMAL v. JANAKI AMMAL and

GOVINDRAO MAHADIK v. DEVI SAHAI .

32. Regarding the requirements to be fulfilled under Section 53A of the Act, the recent judgment rendered by the Supreme Court in SHRIMANT SHAMRAO SURYAVANSHI v. PRALHAD BHAIROBA SURYAVANSHI (2002(2) M.L.J.115) has prescribed some conditions. The relevant portions of the Supreme Court judgment in para 16 are as follows:

"There are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act. The necessary conditions are:-

(1) there must be a contract to transfer for consideration any immovable property;

(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;

(3) the writing must be in such words which the terms necessary to construe the transfer can be ascertained;

(4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;

(5) the transferee must have done some act in furtherance of the contract; and

(6) the transferee must have performed or be willing to perform his part of the contract."

33. Thus, under Section 53A, the appellant should plead and prove mainly the existence of an agreement in writing and the possession in pursuance of the said agreement and part performance of the said agreement or willingness to perform his part of the contract.

34. In the light of these pre-conditions, we shall now consider whether these requirements have been fulfilled.

35. According to the defendant, two agreements were entered into in respect of two sets of properties on 15.4.1974 and 16.4.1974. As far as the suit properties are concerned, it is specifically pleaded that the agreement was entered into on 16.4.1974.

36. As pointed out by the counsel for the respondent, it was not referred to in the written statement that it is a written agreement. However, it is stated that the relevant agreement was handed over to the Collector, Urban Land Tax Ceiling Regulation Act. Though it is not specifically mentioned as a written agreement in the written statement, since it is stated that the original agreement was handed over to the Collector, the defendant must have taken steps to produce the said agreement for ascertainment of the terms of the alleged agreement with reasonable certainty.

37. Even in Ex.B20, the notice dated 21.2.1977 sent by the defendant served upon Adhikesavalu, there is no reference to the terms found in the agreement dated 16.4.1974. In the reply Ex.B7, Adhikesavalu stated that the suit properties were in possession of Adhikesavalu and the appellant has to pay Adhikesavalu a sum of Rs.7,000/- as the balance amount. This would clearly indicate that the appellant was due and liable to pay Rs.7,000/- to the plaintiff's predecessor in title to have the sale in question completed. Admittedly, this Ex.B7 dated 3.3.1977 though was received by the defendant, he would never choose to reply with reference to the liability.

38. So, the conjoint reading of Exs.B20 and B7, besides the absence of any reply to Ex.B7, would certainly show that the appellant was never ready and expressed willingness to perform his part of the contract so as to claim protection under Section 53A of the Transfer of Property Act.

39. It is contended by the counsel for the appellant that since the agreement was lost, he can produce the secondary evidence as provided under Section 65(c) read with Sections 61 and 63 of the Evidence Act. He would also cite the following decisions to substantiate his plea:

1) MANEKLAL v. H.J.GINWALLA AND SONS ;

2) BOBBA SURAMMA v. P.CHANDRAMMA ;

3) KARTHIKEYA MUDALIAR v. SINGARAM PILLAI (1956 (II) M.L.J.515);

4) RAMKRISHNA v. MAHADEI .

40. This contention, in my view, cannot be countenanced, in view of the fact that it was not established through the acceptable evidence that the agreement was lost in the Collector's Office. The defendant has not taken any steps to get a certificate from the Collector's Office that the original agreement was handed over by the defendant in the Collector's Office and the same was lost. Under those circumstances, it cannot be contended that the same can be proved by the secondary evidence.

41. It is true that Ex.B7, the reply sent by Adhikesavalu to the defendant on 3.3.1977 after having received the notice Ex.B20, would refer to the agreement between the defendant and Adhikesavalu. But, in this context, it is to be noticed that according to the defendant, there were two agreements executed between the parties, one on 15.4.1974 and another on 16.4.1974. It is the specific case of the defendant that the suit properties relate to the agreement dated 16.4.1974. In Ex.B7, Adhikesavalu would refer to the agreement dated 15.4.1974 only and not about the agreement dated 16.4.1974.

42. Though in Ex.B7 there is a reference about the suit properties, Adhikesavalu has specifically stated that the suit properties were in his possession and not in the possession of the defendant. Under those circumstances, this document would not be of any help to the defendant as the same would not prove the plea of the defendant that he was in possession of the suit properties in pursuance of the agreement dated 16.4.1974.

43. That apart, the lower appellate Court, the last Court of Fact would consider the other materials and gave factual finding that the plaintiff though initially was not in possession of the suit properties after sale deed, at the intervention of the Panchayatdars, he took possession and was in enjoyment of the suit properties and only in the year 1981, the defendant trespassed into the properties and took possession, in the light of the kist receipts filed by the plaintiff to prove his possession for some years and for those years, the defendant was not able to produce any document to prove his possession. This factual finding, in my opinion, cannot be said to be wrong.

44. In view of what is stated above, even though the plaintiff has proved his title in pursuance of the document Ex.A1 and purchased the same as a bona fide purchaser, the defendant was not able to prove the requirements of Section 53A of the Transfer of Property Act. Consequently, it has to be held that the plaintiff would be entitled to the reliefs sought for.

45. Therefore, the judgment and decree passed by the lower appellate Court are liable to be confirmed and accordingly confirmed. Thus, the second appeal is dismissed. No costs.