MANU/SC/0139/1968 Equivalent Citation: AIR1968SC794, [1968]2SCR720 IN THE SUPREME COURT OF INDIA Decided On: 08.01.

1968 Appellants: Delhi Motor Company and Ors. Vs. Respondent: U.A. Basrurkar and Ors. Hon'ble J.C. Shah, V. Bhargava and V. Ramaswami, JJ. Subject: Property Catch Words Mentioned IN Acts/Rules/Orders: Transfer of Property Act, 1882 - Sections 53-A, 106 and 107; Specific Relief Act, 1877 Section 27-A; Transfer of Property Act - Sections 53-A, 106 and 107 Cases Referred: Probodh Kumar Das and Ors. v. Dantmara Tea Company Ltd. and Ors.MANU/MH/0131/1939; Ram Chander v. Maharaj Kunwar and Ors., ILR 1939 All 809 Citing Reference: Judges:

Probodh Kumar Das and Others v. Dantmara Tea Company Limited & Others Ram Chander v. Maharaj Kunwar and Others Discussed Ram Kumar Das v. Jagadish Chandra Deb Dhabal Deb and Another MANU/SC/0056/1951 Discussed

Mention

Case Note: Property sub-lease Sections 53-A, 106 and 107 of Transfer of Property Act, 1882 and Section 27-A of Specific Relief Act, 1877 appellant-firm claimed possession of certain property damages and injunction contending that respondent-company had sub-leased those properties to them though there was no sub-lease agreement appellant-firm relied on some letters and other

documents to show that there was a complete lease lease if any brought into existence by those documents was certainly for period exceeding one year which could not have been validly made except under registered instrument firm could not claim any right on basis of that lease evidenced by unregistered documents Section 53 A of Transfer of Property Act is only available as defence to lessee and not as conferring right on basis of which lessee can claim rights against lessor no specific performance of agreement under Section 27 A of Specific Relief Act can be claimed by firm because in plaint no such claim was made to claim specific performance possession must be obtained of entire property to which contract relates such possession was not with firm appeal dismissed.

JUDGMENT Bhargava, J. 1. The first appellant, Messrs. Delhi Motor Company, is a partnership firm (hereinafter referred to as "the firm"), of which the other four appellants Nos. 2 to 5 are partners. Respondent No. 6, New Garage Ltd., is a private limited company (hereinafter referred to as "the company"), of which respondent No. 1 was the Managing Director, and respondents Nos. 2 to 5 were members of the Board of Directors. The firm brought a suit against the Company for possession of part of the building known as "Scindia House" situated in Connaught Circus, New Delhi, on the basis of an agreement of sub-lease. Possession was claimed of a portion of the Show-Room on the ground floor, of 1/2 portion of the Balcony, and another portion of the premises which were, in the year 1950, in the possession of Messrs. Kanwar Brothers Ltd. The case put forward by the firm was that the Company was the tenant of Scindia House and was in occupation of the Show-Room and other parts of the building, while a part of it was occupied by Messrs. Kanwar Brothers Ltd. as sub-lessee of the Company. According to the firm, the agreement to sub-lease, or the sub-lease on the basis of which possession was claimed by the firm from the Company, is evidenced by three documents, the first one of which is letter, Ext. P.1, dated 20th February, 1950, written by K. S. Bhatnagar, appellant No. 2, on behalf of the firm, to U. A. Basrurkar, respondent No. 1, who was the Managing Director of the Company. The second document is letter, Ext. P.2, dated 22nd February, 1950, written by respondent No.1 Basrurkar to appellant No. 2 Bhatnagar; and the third document is Ext. P.3, which purports to be notes on agreement arrived at between Basrurkar and Bhatnagar on 22nd February, 1950. The case of the firm was that, though these documents did not purport in so many words to be an agreement of sub-lease to be granted by the Company to the firm, in substance and in fact, the agreement arrived at was of a sub-lease in respect of the premises mentioned above. Since, under the Delhi and Ajmer Merwara Rent Control Act 19 of 1947, if a sub-lease had been granted by the Company to the firm without the consent of the landlord, the Company would have been liable to ejectment from the premises, the agreement was not made as directly evidencing a sub-lease, so that the landlord should not have an opportunity of suing the Company for ejectment. In February, 1950, when the agreement evidenced by these three documents was arrived at, respondent No. 1, U. A. Basrurkar as Managing Director did not have the authority to enter into this transaction on behalf of the Company with the firm and, consequently on 22nd March, 1950, the Board of Directors of the Company, by a resolution Ext. P. 9, authorised the Managing Director to enter into this transaction. Thereafter, the firm came into possession of two portions of the leased property and started its business in them with effect from 1st April, 1950. The two portions of the leased property, which came into the possession of the firm, were a portion of the Show-Room on the ground floor and a half portion of the Balcony on the first floor. The agreement

contained in these letters and documents also required parties to carry out some other obligations and, according to the firm, it complied with them. In order to avoid the liability of the Company for ejectment under the Delhi and Ajmer Merwara Rent Control Act, 1947, the agreement was sought to be given the form of a partnership; and in order to enable the Company to enter into such a transaction, a special resolution Ext. P. 4 was passed on 24th November, 1950 at an Extra-ordinary General Meeting of the Share-holders of the Company amending the Memorandum of Association of the Company. This amendment was subsequently approved by the District Judge and was registered with the Registrar of Companies. So far as the landlord is concerned, he was not a party to these transactions, though, on 5th April, 1951, the landlord gave a letter Ext. P. 22 recognising the possession of the firm, but he specifically stated in that letter that the firm would be a licensee and not a sub-lessee. One other term in the agreement arrived at was that appellant No. 2, K. S. Bhatnagar, was to be taken as a Director of the Company and he was in fact included in the Directors of the Company thereafter. The further case of the firm was that when Messrs. Kanwar Brothers Ltd. vacated the portion of the premises which was included in the sublease, the Company did not give possession of that portion of the leased property to the firm and also started obstructing the use of those portions of the property by the firm of which the firm had secured possession by 1st April, 1950. A stage came when the firm was completely dispossessed from the property leased and, ultimately, after giving notices, the firm instituted a suit on 18th June, 1952. The principal prayer in the suit was for delivery of possession in respect of all the three portions of the leased property. Then, there was a claim for damages to the extent of Rs. 10,000/- in respect of loss incurred on account of dispossession and obstruction in use of the leased property at the instance of the Company. Injunctions were also sought restraining the Company from interfering with the rights of the firm and with their uninterrupted use of the leased property. There were further prayers for other consequential injunctions which need not be described in detail. 2. On behalf of the Company and its Directors, the plea put forward was that there was no agreement of sub-lease or a completed sub-lease between the Company and the firm and that, in fact, all that tool place were negotiations for entering into a partnership. Even the agreement for partnership was never completed, so that the firm was not entitled to any relief at all. 3. The trial Court held that the contract evidenced by these documents was an agreement for a sub-lease and, since this agreement did not require registration, the firm was entitled to the reliefs claimed on the basis of this agreement. The Company and its Directors appealed to the High Court of Punjab and that Court held that these documents constituted a completed lease or at least an agreement to lease falling within s. 2(7) of the Indian Registration Act and, since the lease or the agreement to lease was evidenced by documents in writing and they were unregistered, the lease or the agreement to lease could not be enforced. On this sole ground, the High Court allowed the appeal and dismissed the suit of the firm. The firm has now come up in appeal to this Court by special leave. 4. The first point urged on behalf of the firm was that, in this case, there was a completed sub-lease, but it did not require registration for two reasons. The first reason advanced was that the lease was not evidenced by the documents Exts. P. 1, P. 2 and P. 3 only, but was, in fact, completed subsequently when, after the resolution of the Board of Directors of the Company, the Company gave possession of the leased property to the firm on or about the 1st April, 1950. The second reason was that, in any case, this lease was not a lease from year to year or for any term exceeding on year or reserving a yearly rent, so that s. 107 of the Transfer of Property Act was not applicable and registration was not compulsory. These submissions fail, because the lease, as relied upon by the firm, has to be held to be a lease

of immovable property for a term exceeding one year, and such a lease is fully governed by s.107 of the Transfer of Property Act. The firm itself came forward with the case that the rights that were being claimed were under a lease and the lease was in respect of immovable property consisting of the three portions of the Scindia House which have been mentioned above. It was, however, urged that this lease was not for any fixed term at all and was for an indefinite period, so that it could not be held to be a lease from year to year either. It was further submitted that yearly rent had not been reserved in respect of this lease. Even these submissions were made on the basis that the terms of the lease have to be ascertained from the three documents Exts. P. 1, P. 2 and P. 3 which were relied upon by the firm to claim the relief in the suit. It appears to us that, if these documents are properly interpreted, an inference necessarily follows that the lease, if any, brought into existence by these documents was certainly for a period exceeding one year. Since reliance was placed on these documents on behalf of the firm to urge that there was a completed lease, learned counsel for the firm was asked to point out the provision which fixed the rent payable in respect of the leased property. The only provision, on which he relied to show that rent had, in fact, been agreed upon the fixed, was para 1 of Ext. P. 3 which contains notes on agreement dated 22nd February, 1950. That paragraph is as follows :"Profit share of party No. 1 would be 10% of net profit of New Delhi business only and will be settled at the end of the 1st closing of the financial year which would be 30th June, 1951." 5. Accepting this submission that this paragraph lays down the rent payable, it is clear that, under it, the rent payable for the first time would be 10% of the net profits earned by the firm in its New Delhi business up to 30th June, 1951. The period would naturally begin on the date on which the lease commenced. That date, according to the firm itself, was 1st April, 1950. From these facts it follows that when the rent is to be paid for the first time, it would be an amount of 10% of the net profits earned by the firm in its New Delhi business between 1st April, 1950 and 30th June, 1951, and, naturally enough, the rent will be in respect of the same period. This term, therefore, clearly laid down that the very first payment of rent was to be for a period of one year and three months, so that, even though no further period for the continuance of the lease after 30th June, 1951, was laid down, the lease at least made rent payable for the first period of fifteen months. The lease was, therefore, at least for a period of fifteen months and, consequently, for a period exceeding one year. Section 107 of the Transfer of Property Act was, thus clearly applicable and such a lease could not have been validly made, except under a registered instrument. Admittedly, there was no registration of the documents which constituted the lease and, consequently, the firm could not claim any rights on the basis of this lease evidenced by unregistered documents. 6. Learned counsel tried to urge that, since in these documents no definite period for the lease was mentioned, we should hold that s. 106 of the Transfer of Property Act was applicable and the lease being in respect of immovable property for purposes other than agricultural or manufacturing must be deemed to be a lease from month to month. We are unable to accept this submission, because none of the documents, on which reliance has been placed on behalf of the firm to prove the lease, contains any clause indicating that the tenancy was to be from month to month or the rent was payable monthly. In fact, the indication from para 1 of Ext. P. 3 quoted above is that the rent was to be payable annually, so that the contract itself seems to give an indication that it was to be a lease from year to year and annual rent was payable. These circumstances, however, are immaterial, because we have already indicated earlier our finding that this lease was at least for a minimum period of 15 months and, consequently, s. 107 of the Transfer of Property Act becomes

applicable, irrespective of the question whether it was a lease from month to month or from year to year. The High Court was, therefore, quite correct in holding that on the basis of this lease the reliefs claimed by the firm could not be granted to it. 7. In these circumstances, an argument was put forward on behalf of the firm that, though this contract to lease had not been registered, the firm could claim possession under it in view of the provisions of s. 53A of the Transfer of Property Act, because, in this case, the Company would be debarred from enforcing against the firm any right in respect of that property of which the firm had already taken possession, viz., part of the Show-Room and a portion of the Balcony. In our opinion, this argument proceeds on an incorrect interpretation of s. 53A, because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. This interpretation of s. 53A was clearly laid down by their Lordships of the Privy Council in Probodh Kumar Das and Others v. Dantmara Tea Company Limited & Others MANU/MH/0131/1939 :66 I.A. 293. 8. Learned counsel for the firm, however, relied on a decision of the Allahabad High Court in Ram Chander v. Maharaj Kunwar and Others I.L.R. [1939] All. 809. In that case, the lessee, under a registered lease which was defective and did not comply with requirements of s. 107 of the Transfer of Property Act, brought a suit against a subsequent purchaser of the house of the lessor on the allegation that the purchaser had, in collusion with the Municipal Board, procured the demolition of a portion of the house, and claimed a relief of perpetual injunction restraining the purchaser from demolishing the house or otherwise interfering with the lessee's rights as such, and for restoration of the demolished portion at the purchaser's cost. The High Court, in allowing the claim of the lessee, held :"Now, in the present case, what is it that the plaintiff is attempting to do ? He is not attempting to set up a transfer which is invalid; he has not instituted a suit for the declaration of the validity of the transfer; he has not instituted a suit in which he claims an order against the defendant directing him to perform any covenant of the transfer. What he is seeking to do is to debar the defendants from interfering with his possession into which he has entered with the consent of his transferor after the execution of a transfer in his favour. He is, in other words, seeking to defend the rights to which he is entitled under s. 53A of the Transfer of Property Act. The defendants Nos. 1 and 2 in demolishing part of the property of which the plaintiff had obtained possession were acting suo motu with the aid of the Municipal Board of Moradabad. It is the defendants who are seeking to assert rights covered by the contract. The plaintiff seeks merely to debar them from doing so; the plaintiff is seeking to protect his rights. In a sense, in the proceedings he is really a defendant and we see nothing in the terms of section 53A of the Transfer of Property Act to disentitle him from maintaining the present suit." 9. Without expressing any opinion as to the correctness of the view taken by the Allahabad High Court, we have to point out that the interpretation put on s. 53A of the Transfer of Property Act even by that Court is of no assistance to the firm in the present case. In this case, the firm is seeking to enforce rights under the unregistered lease and to seek a decree for possession against the lessor. The Allahabad High Court in that case proceeded on the basis that the plaintiff of that suit was in the position of a defendant and was only seeking to protect his rights by resort to the provisions of s. 53A of the Transfer of Property Act, so that no principle was laid down by the High Court that s. 53A is available to a lessee

otherwise than as a defence. We are unable to accept the submission that the judgment in that case should be read as recognising a right of a lessee to enforce rights on the basis of an unregistered lease by resort to that provision of law. In fact, if that case be interpreted as laying down such a principle, it must be held that it has been directly over-ruled by the decision of the Privy Council in the case of Probodh Kumar Das and Others 66 I.A. 293 and is not correct. That decision may be justified, if at all, on the basis that, though the lessee in that case was a plaintiff, he was actually seeking protection under s. 53A of the Transfer of Property Act by being in the real position of a defendant. On the question whether a person, who sues as a plaintiff, may still be regarded as defending the rights sought to be conferred upon him by an unregistered deed, we need express no opinion. In the present case before us, the claim, which was put forward by the firm in the plaint, can by no means be construed as a mere defence of the firm's rights. What the firm is actually seeking to do is to enforce the rights under the lease and, in such a case, s. 53A of the Transfer of Property Act is clearly inapplicable. 10. Reliance was also placed on behalf of the firm on the decision of this Court in Ram Kumar Das v. Jagadish Chandra Deb Dhabal Deb and Another MANU/SC/0056/1951 : [1952]1SCR269 , in which case also, a registered Kabuliyat executed by the lessee did not comply with the requirements of s. 107 of the Transfer of Property Act, and on the facts of the case it was held that, though under the Kabuliyat the land was leased out for a period of ten years, the lease in fact must be presumed to be from month to month under s. 106 of that Act. The facts of that case were, however, quite different. In that case, the terms of the lease were not ascertained from the Kabuliyat in which the period of lease was fixed at 10 years. The terms of the lease were ascertained from other documents, including receipts for rent paid by the lessee to the lessor, and on the basis of that evidence it was found that a lease had come into existence under which rent was being paid monthly. No such circumstances appear in the case before us. In fact, it was at no stage pleaded and no evidence was led to show that, independently on the three documents Exts. P. 1, P. 2 and P. 3, there was material from which it could be inferred that a lease from month to month had come into existence between the firm and the Company. No such point was urged either in the trial Court or before the High Court and no such finding of fact exists. In these circumstances, s. 106 of the Transfer of Property Act would clearly be inapplicable, and the lease has to be held to be for a period exceeding one year for the reasons given by us above. 11. In the alternative, learned counsel for the firm urged that the firm was entitled to contend that these documents Exts. P. 1 to P. 3 constituted an agreement in writing to lease the property in suit and could claim specific performance of this contract. There are three reasons why we are unable to accept this submission. The first is that, in the plaint itself, no specific performance of contract was claimed on behalf of the firm. Though the pleadings included averments about this contract, the relief claimed was for a decree for possession, damages and injunctions. These reliefs could only be claimed on the basis of a completed lease and could not be the reliefs in a suit for specific performance of a contract to lease. The second reason is that, as mentioned by us earlier, the firm itself came forward with the case that the entire contract was not included within these three documents Exts. P. 1 to P. 3, because, at the stage when these documents came into existence, the Managing Director of the Company had no authority to enter into such a contract on behalf of the Company and that the contract was only completed subsequently when the Board of Directors passed a resolution authorising the Managing Director to enter into such a contract and actual possession of part of the property was given on or about the 1st April, 1950. The contract being a contract to lease immovable property and unregistered, specific performance of it could not be sought, except under s. 27 of the Specific Relief Act. That section, however, applies only if the entire contract is made in writing, while, according to

the case put forward on behalf of the firm itself, the entire contract was not in writing. The third reason why specific performance of the contract cannot be claimed by the firm under s. 27 of the Specific Relief Act is that such a claim under that provision of law is only available to a lessee, when the lessee, in part performance of the contract, has taken possession of the property, or, being already in possession, continues in possession in part performance of the contract. In the present case, the pleas put forward on behalf of the firm itself show that the firm never got possession of the entire property to which the contract related. Possession was taken by the firm of only two items of property, while the firm never obtained possession of the third item of property which was in possession of Messrs. Kanwar Brothers Ltd. Clause (b) of s. 27 can apply only if possession of the entire property, which is the subject-matter of the contract of lease, has been taken by the lessee. The pleadings in the plaint show that, even though the third item of property was vacated by M/s. Kanwar Brothers Ltd. in December, 1950, possession of that property was never obtained by the firm. 12. To meet this objection, it was urged by learned counsel on behalf of the firm that we should interpret s. 27 of the specific Relief Act as being applicable even if possession of part of the property, which is the subject-matter of the contract, is obtained by the lessee; but we are unable to accept this submission. The language used makes it clear that possession must be obtained of the entire property to which the contract relates. In this connection, it is significant to note that under s. 53A of the Transfer of Property Act, a transferor is barred from interfering with the rights of the transferee, even if the transferee gets possession of any part of the property sought to be transferred by the unregistered document of transfer. That section specifically uses the expression "taken possession of the property or any part thereof", whereas the words used in s. 27 of the Specific Relief Act are : "taken possession of the property". The omission of the words "any part thereof" in s. 27 of the Specific Relief Act when compared with the provision in s. 53A of the Transfer of Property Act clearly brings out the position that the former section is only applicable when possession of the entire property, which is subject-matter of the contract, has been taken, while the latter section is made applicable even if the lessee takes possession of any part of the property. Consequently, on the facts of the present case, the firm could not claim specific performance of the contract under s. 27 of the Specific Relief Act, even if such a claim had been put forward in the plaint. This alternative contention also, therefore, fails. 13. The appeal is, consequently, dismissed, but, in view of the circumstances of this case and the conduct of the parties relating to the contract, we direct parties to bear their own costs of the appeal. 14. Appeal dismissed.

Manupatra Information Solutions Pvt. Ltd.

MANU/SC/0093/2002 Equivalent Citation: AIR2002SC960, 2002(2)ALLMR(SC)267, 2002(2)AWC918(SC), 2002(50)BLJR772, (2002)2BOMLR196, JT2002(2)SC24, (2002)2MLJ115(SC), 2002MPLJ589(SC), RLW2002(2)SC313, (2002)3SCC676, [2002]1SCR393, 2002(1)SCT844(SC), 2002(1)UJ515(SC) IN THE SUPREME COURT OF INDIA Decided On: 22.01.2002 Appellants: Shrimant Shamrao Suryavanshi and Anr. Vs. Respondent: Pralhad Bhairoba Suryavanshi by Lrs. and Ors. Hon'ble V.N. Khare and Ashok Bhan, JJ. Judges:

Counsels: For Appearing Parties: V.N. Ganpule, R. Sunderavardhan, Sr. Advs., S.K. Agnihotri, K.L. Taneja, H. Wahi, S.M. Jadhav, Sunil Kr. Verma, K.L. Janjani and Sanjay K. Visen, Advs., Manoj K. Mishra, Adv. for A.S. Bhasme and S.V. Deshpande, Advs, Subject: Property Catch Words Mentioned IN Acts/Rules/Orders: Transfer of Property 1929; Limitation Act

Act

Sction

53A; Transfer

of

Property

(Amendment)

Act,

Cases Referred: R.S. Nayak v. A.R. Antulay MANU/SC/0103/1984; M.K. Venkatachari and Ors. v. I.A.R. Arunachalam Pillai and Ors. MANU/TN/0265/1967; Mahadeo Nathuji Patil v. Surajbhai Khushal Chand Lakkad and Ors., 1994 Mah L J, 1145 Disposition: Appeals allowed Citing Reference:

R.S. Nayak v. A.R. Antulay, MANU/SC/0102/1984 Discussed

M.K. Venkatachari and Ors. v. I.A.R. Arunachalam Pillai and Ors., MANU/TN/0265/1967 Mahadeo Nathuji Patil v. Surajbhai Khushal Chand Lakkad and Ors., Case Note: Contract - Doctrine of part performance - Defence or protection of possession under Section 53A of the Transfer of Property Act - Essential conditions to be complied with - 1. contract to transfer for consideration any immovable property; 2. must be in writing, signed by the transferor, or by someone on his behalf; 3. writing must be in such words from which the terms necessary to construe the transfer can be ascertained; 4. transferee must in part performance take possession of the property, or any part thereof; 5. transferee must have done some act in furtherance of the contract; and 6. transferee must have performed or be wiling to perform his part of the contract. Limitation - Right of defendant to defend or protect his possession under part performance of the contract laid down under Section 53A of Transfer of Property Act - If conditions under the sections are complied with the law of limitation does not come in the way of defendant to protect his possession of the suit property even though a suit for specific performance of contract is barred by limitationLimitation Act. Property - Interpretation of statutes -Documents or reports preceding the legislation can be legitimately taken into consideration while construing the provisions of an Act. JUDGMENT V.N. Khare, J. 1. In this group of appeals the question that arises for our consideration is "whether in a suit brought by a transferor for recovery of possession of the suit property, a defendant transferee can defend or protect his possession over the suit property obtained in pursuance of a part performance on an agreement to sell under Section 53A of the Transfer of Property Act (hereinafter referred to as 'the Act'), even if a suit for specific performance of an agreement to sell has barred by limitation". 2. Since common question of law is involved in these appeals, we are deposed to notice the facts which have given rise to Civil Appeal No. 2706/1991. 3. The appellants herein were the defendant in the suit brought by the plaintiff-respondent for recovery of the suit property and for mesne profit. On 9 th July, 1964, respondent No. 3 executed an agreement for sale of an agricultural land in favour of appellant No. 1 for a total consideration of Rs. 9,000/-. Appellant No. 1 paid a sum of Rs. 5,700/- towards earnest money. The appellants in pursuance of the said agreement for sale was put in possession over the said property. After the execution of the said agreement, it came to the notice of the appellant that the transferor is negotiating for sale of the said land in favour of respondent No. 1. Under such circumstances, the appellant brought a suit 2 nd August, 1965 for injunction restraining the transferor from selling the said land in favour of respondent No. 1. On 30th April, 1966 the trial court granted injunction as prayed for. It is the case of the appellants that despite the said injunction order, the transferor sold the said property through a registered sale deed dated 24th May, 1966 in favour of respondent No. 1.

Discuss

Dissent

4. After the sale deed was executed, the plaintiff-respondent No. 1 on the strength of the said sale deed brought a suit for recovery of possession of the land. The appellants filed a written statement wherein the suit claim was resisted on the ground that they are in possession of the property in pursuance of agreement entered into on 9 th July, 1964 and their possession is protected as they are always and still willing and ready to perform their part of the contract. Another contention raised was that the decree passed by the civil court in a suit for injunction operates as res judicata and the sale deed which is the basis of the title of the appellant has not been proved. The trial court dismissed the suit. The Learned Single Judge of Bombay High Court dismissed the appeal preferred by the plaintiffrespondents. However, the Letters Patent Bench allowed the Letters Patent Appeal filed by the plaintiff- respondents. The view taken by the Letters Patent Bench was that the protection as regards possession is not available to the defendant-appellants as the suit for specific performance of agreement for sale is barred by limitation. It is against the said judgment of the Letters Patent Bench, the appellants are in appeal before us. 5. The first question that arises for consideration is whether the defendant-appellants are entitled to protect their possession of the suit property obtained in pursuance to part performance of agreement for sale even after the suit for specific performance of contract for sale is barred by limitation. 6. The argument of learned counsel appearing for the appellants is that even though the suit for specific performance of the agreement for sale is barred by limitation, still a transferee in a suit for recovery of possession by the vendor, can defend his possession under Section 53A of the Act so long as he is willing and ready to perform his part of the contract. Whereas the contention raised on behalf of the respondents counsel is that once a remedy for specific performance of an agreement for sale is lost by limitation, the equitable relief of protection of possession of the suit property under the agreement for sale also comes to an end and is lost. In other words, the contention is that the right to defend possession to a vendee is available so long as the period of limitation prescribed by law for its enforcement continues and it comes to an end as soon as the period of limitation expires. 7. A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to lock into the legislative history and structure of the provisions of Section 53-A of the Act. 8. Earlier, the assistance of historical facts or any document preceding the legislation was very much frowned upon for purposes of construction of statutes. At that time, there was some injunction against principle of looking into the historical facts or reports preceding the legislation in construing a statute. However, by passage of time, this embargo has been lifted. 9. In R.S. Nayak v. A.R. Antulay - MANU/SC/0102/1984 : 1984CriLJ613 , it was held thus: "Report of the Committee which preceded the enactment of a legislation reports of Joint Parliament Committee report of a commission set up for collecting information leading to

the enactment are permissible external aid to construction. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment existing State of Law, the environment necessitating enactment of legislation and the object sought to be achieved be denied to Court whose function is primarily to give effect to the real intention of the Parliament in enactment of the legislation. Such denial would deprive the Court of a substantial and illuminating aid to constructions. The modern approach has to a considerable extent eroded the exclusionary rule even in England." 10. Now the accepted view is that the document or report preceding the legislation can legitimately be taken into consideration while construing the provisions of an Act. 11. We, therefore, proceed to examine the question before us in the light of facts stated hereinafter. 12. In England, the provisions of he law of Property Act of the Statute of Fraud provided that no suit or action would be brought on agreement relating to a property which was not in writing signed by the parties. The aim and object of the statute was to protect a party against fraud. However, certain difficulties were experienced when it was found that under an oral agreement a party has performed his part of the contract yet he was unable to bring any action or suit against other party viz., transferor for a specific performance of the agreement which was not in writing in view of the provisions contained in the Statute of Fraud. Under Such situation, transferor managed to play fraud on innocent buyers who entered into an oral agreement and performed their part of the contract. In view of such prevailing circumstances in England, the Court of Enquiry intervened on the ground of enquiry and took action to enforce specific performance of a parole agreement. The view taken by the Court of Equity was that the object behind the Law of Property of the Statute of Fraud was to protect against a fraud, but the provisions of Law of Property of Statute of Fraud were being used as an instrument to help and protect fraud. Thus, the Court of Equity did not permit the Statute of Fraud to be used as an instrument to cover the fraud by the transferor where there was a part performance of a parole agreement. 13. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India the Govt. of India resolved to set up a Special Committee for making recommendations amongst others -- whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the

period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired. 14. The aforesaid recommendation of the Special Committee were accepted by the Govt. of India as the same is well reflected in the aims and objects of amending Act, 1929 whereby Section 53-A was inserted in the Act. 15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, object contained in amending Act 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired. 16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are1) 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 from 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. 17. We are, therefore, of the opinion that if the conditions enumerated above are complied with the law of limitation does not come in the way of a defendant taking plea under Section53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation. 18. The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus the law of limitation bars only an action in a court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law. On the said principle, a defendant in a

suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation. 19. In M.K. Venkatachari and Ors. v. I.A.R. Arunachalam Ors. MANU/TN/0265/1967 : AIR1967Mad410 , it was held, thus: Pillai and

"that defence to limitation is a creature of a positive law and, therefore, cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic". 20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action. 21. In the present case, it is not disputed that the transferee has taken possession over the property in part performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil v. Surajbai Khushal Chand Lakkad and Ors. - 1994 Mah L J 1145, which, according to our view, lay down the correct view of law. In that view of the matter these appeals deserve to be allowed. 22. Since the High Court has allowed the appeals solely on the ground that the remedy for bringing a suit for specific performance is lost, therefore, the defendant is not entitle to protect his possession under Section 53-A of the Act, we, after setting aside the judgment under challenge, send the matters back to the High Court to decide any other question of law, if arises in these appeals. 23. Consequently, the appeals are allowed. There shall be no order as to costs.

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