NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TRIMESTER – 6

PROJECT ON PROPERTY LAW - I

CASE ANALYSIS OF

Rambau Namdeo Gajre v. Narayan Babuji AIR 2004

Author: J.Bhanumathi
Bench: Ashok Bhan, S.H. Kapadia
Date of Judgment: 25/08/2004

SUBMITTED TO : SUBMITTED BY :

Associate Professor.Dr.Sanjay Kumar Yadav Sonia Sabu : 2018BALLB99

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 ACKNOWLEDGEMENT
I would like to place on record special gratitude to my course teacher Associate Professor Sanjay
Kumar Yadav for his timely suggestions, critical evaluation, creative guidance and great support
throughout the project research.

Also I owe a great deal of gratitude to the staff of Gyan Mandir, Library for providing extensive
database resources

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 TABLE OF CONTENTS

MATERIAL FACTS…………………………………………………………………..7

ISSUES OF THE CASE…………………………………………………………….…8

ARGUMENTS OF APPELLANT…………………………………………….………9

ARGUMENTS OF RESPONDENT………………………………………………….10

DECISION OF THE CASE…………………………………………………………...11

RATIO OF THECASE………………………………………………………………..11

CRITICAL COMMENTS……………………………………………………………. 12

CONCLUSION AND SUGGESTIONS………………………………………….…...16

BIBLIOGRAPHY……………………………………………………………….…….17

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RESEARCH OBJECTIVES
 To analyze the case of Rambhau Namdeo Gajre vs Narayan Bapuji Dhotra ;
 To understand the Doctrine of Part performance
 To study Section 53A its essential ingredients and Section 54 of the Transfer of Property
Act

RESEARCH METHODOLOGY

Doctrinal method of study has been used in this project.

REVIEW OF LITERATURE

1. PROVISIONS AND DOCTRINES

 Section 53A of Transfer of Property Act, 1882

53A. Part performance.—Where any person contracts 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, 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 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 thereof1

1
Section 53A of Transfer of Property Act, 1882

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  Section 54 of Transfer of Propert Act, 1882

54. “Sale” defined.—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised
or part-paid and part-promised. Sale how made.—3Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees and upwards, or in the case of a
reversion or other intangible thing, can be made only by a registered instrument. 1In the case of
tangible immoveable property of a value less than one hundred rupees, such transfer may be
made either by a registered instrument or by delivery of the property. Delivery of tangible
immoveable property takes place when the seller places the buyer, or such person as he directs,
in possession of the property. Contract for sale.—A contract for the sale of immoveable property
is a contract that a sale of such property shall take place on terms settled between the parties. It
does not, of itself, create any interest in or charge on such property.2

 Doctrine of Part Performance

If a person makes a agreement with another and lets the other person act on the behalf of the
contract; such a person creates an equity himself that can not be resisted on the mere grounds of
absence of formality in the evidence or contract of such a transfer

2. CASELAWS
 Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi2002 (3) SCC
676

 Mohammad Musa v. Aghore Kumar Ganguli (1914) 42 Cal. 801 ; 28 IC 930.

 Ariff v. Jadunath AIR 1931 PC 79 ; 58 IA 91
 Mian Pir Bux v. Sardar Mohammad Tahir AIR 1934 PC 235.
 Nathulal v Phoolchand AIR 1970 SC 546
 State of U.P. Vs. District Judge & Ors 1997 (1) SCC 496
 Vasanti v Venugopal2017 SC 1569

2
Section 54 of Transfer of Propert Act, 1882

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  Ambaden Waghubhai Haribhaidesai v. Baldevbhai BecharsinghVaghelaAIR 2010 Guj.
17
 Prabodh Kumar Das v. Dantamara Tea Co. LtdAIR 1940 PC 1
3. BOOKS
 Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal
Law Publishers) 561

This book provides basic principles and doctrines of Transfer of Property Act.

 Poonam Pradhan, Property Law (2nd Edition, 2013,  LexisNexis) 253.

This book gives analysis of basic doctrines and related case laws under property law.

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 MATERIAL FACTS
1. Narayan Bapuji Dhotra, the original plaintiff was the owner of the Suit land, Survey No.
94 admeasuring 18 acres and 23 gunthas situated at Village Jambwadi, Taluka Jalna in
the State of Maharashtra.
2. In April 1965, the plaintiff filed the Suit for possession of the property in dispute with the
averment that he had been wrongfully dispossessed from the land by the Defendant.
3. Appellant resisted this suit saying that, the plaintiff and his brother had agreed to sell the
suit land to Mr. Pishorrilal Punjabi under an agreement to sale dated on 16-6-1961, who
paid the entire amount as consideration and was put in possession of the suit land in part
performance of the agreement of sale.
4. Then, the defendants said that, Pishorrilal executed an agreement of sale in his favour on
1st September 1961 and the entire amount of consideration was paid to Pishorrilal and the
defendant was in possession of the Suit land in part performance of the agreement.
5. The Trial Court upon considering evidence on record, concluded in favor of the plaintiff
saying that, mere contract of sale does not create any right or title upon the transferee.
6. Aggrieved by the order of the Trial court, the defendant filed an appeal and the first
appellate court set aside the Trial court judgment and dismissed the suit of plaintiff
saying that the defendant had an equitable title to the suit land.
7. The original plaintiff, Narayan Bapuji Dhotra died.
8. His legal representatives filed an appeal in High court and the court held that the
defendant was not entitled to claim possession of land upon benefit of doctrine of part
performance under Section 53A of Transfer of Property Act.
9. The present case is an appeal to Supreme Court, filed by the defendant (here in after
appellant) against the judgement of High Court.

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 ISSUES OF THE CASE
1. Whether the appellant, who possess suit land on the basis of agreement of sale between
him and Pishorrilal Punjabi dated on 1-9-1961, is entitled for possession of the suit land
by claiming benefit of the equitable doctrine of part performance as stated in Section 53-
A of the Transfer of Property Act ?
2. Whether there is any Privity of Contract between the Appellant/RDefendant and the
Respondent/Plaintiff ?
3. Whether Mr.Pishorrilal Punjabi has a transferable interest in the suit land under the
agreement to sale dated 16-6-1961 ?

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 ARGUMENTS OF APPELLANT

1. Appellant contended that under an agreement of sale dated on 16-6-1961, the plaintiff
and his brother had agreed to sell the suit land to Pishporrilal Punjabi.Pishorrilal Punjabi
had already paid the entire amount of consideration and was put in possession of suit land
in part performance of the agreement dated 16-6-1961.So Pishorrilal had a transferable
interest and ownership of land.
2. Under the agreement of sale between Pishorrilal and appellant, dated on 1-9-1961, the
appellant had paid entire amount of consideration to Pishorrilal and was put in possession
of the suit land by him in part performance of the agreement afore mentioned.Since he
was in possession of land in part performance of contract, the appellant contended that he
was entitled to protect his possession in terms of Section 53-A of the Transfer of Property
Act.

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 ARGUMENTS OF RESPONDENT

1. According to the respondent, he was the owner of the suit land and the land was his self
acquired property.The original agreement of sale dated 16-6-1961 made between him and
Pishorrilal was not placed on record and the certified copy was not proved.So there was
no right or interest created in the suit land in favour of Pishorrilal by virtue of original
agreement.
2. Title in the suit property had not been conveyed to Pishorrilal and he had no title in the
property.So in absence of such a title in property Pishorrilal could neither enter into an
agreement of sale nor transfer possession of the property to the appellant in part
performance of the agreement under Section 53-A of the Act.
3. Respondent also argued that there was no privity of contract between him and the
appellant, as the appellant has been put in possession of the suit land on the basis of
agreement of sale by Pishorrilal, not by respondent. The doctrine of part performance as
contemplated in Section 53-A of the Transfer of Property Act can be availed of by the
proposed transferee against his transferor or any person claiming under him and not
against a third perso with whom he does not have a privity of contract.
4. The essential conditions required to be fulfilled for defending the possession under
Section 53A as culled out in the case Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad
Bhairoba Suryavanshi3,has not been met by the appellant.

DECISION OF THE CASE

3
2002 (3) SCC 676

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The court did not find any merits in the appeal and the appeal was dismissed by the court.

RATIO OF THECASE
The court found out the ratio of the case as :
“Pishorrilal was not having any transferable interest, which he could convey to the appellant by
entering into an agreement if sale with the appellant.Under these circumstances, the appellant did
not had any equitable right to protect his possession as against the respondent, the
owner.Appellant does not get any equitable or possessory title to the suit land through Pishorrilal
as Pishorrilal himself did not had any title or right over the property and the appellant does not
come within the meaning of transferee under Section 53A of Transfer of Property Act.Under
Section 53A, Pisorrilal only had the right to protect his possession as against the proposed
vendee, but not the conveyable interest in property which he could transfer to a third party.”

CRITICAL COMMENTS

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During the British administration in India, the gaps created even after the application of Indian
laws were filled by applying principles of equity.Doctrine of part performance was one such
equitable doctrine, but its application in India was not uniform or certain before 1929. In the case
of Mohammad Musa v. Aghore Kumar Ganguli4, the privy council held that equity of part-
performance could be applied to Indian cases.However in the case of Ariff v. Jadunath5, the privy
council did not apply the doctrine of part-performance in India when the situations were either
the agreement for lease was oral or express violation of the provisions of statutory law namely ,
Section 107 , of the Transfer of Property Act has taken place.Also in the case of Mian Pir Bux v.
Sardar Mohammad Tahir,6 the Privy Council held that English equity of part-performance could
not be availed in India against express statutory provisions regarding registration contained in the
Registration Act, and the Transfer of Property Act.Thus to resolve all these uncertainties in 1929,
the equitable Doctrine of part performance in English law was introduced in to the Indian law of
Transfer of Property Act by the enactment of Section 53A.7

The case of Rambhau Namdeo Gajre vs Narayan Bapuji Dhotra can be regarded as a landmark
judgement which clarifies the position of Section 53A and the application of doctrine of part
performance.While delivering this Supreme Court verdict, Justice Ashok Bhan and Justice
S.H.Kapadia had given mainly three grounds for the dismissal of appeal of appellant.

1. Absence of transferable interest or ownership upon Pishorrilal.

2. No privity of contract between the appellant and respondent.
3. Lack of reasonable care and precaution from the part of appellant.

The Supreme Court judgement Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad Bhairoba

4
Mohammad Musa v. Aghore Kumar Ganguli (1914) 42 Cal. 801 ; 28 IC 930.
5
Ariff v. Jadunath AIR 1931 PC 79 ; 58 IA 91
6
Mian Pir Bux v. Sardar Mohammad Tahir AIR 1934 PC 235.

7
Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal Law Publishers) 561.

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Suryavanshi8, laids down the essential conditions required to be fulfilled if a transferee has to
defend his possession under Section 53A as :

1. A contract to transfer for consideration of any immoveable property must be existing.

2. This contract should be in writing, signed by the transferor, or by someone on his behalf
3. The terms necessary to construe the transfer must be there in such words in writing.
4. The transferee had taken possession of property or any part in part performance of
contract.
5. The transferee had done some act in furtherance of the contract.
6. The transferee willing to perform his part of contract.

These conditions were also given in the case of Nathulal v Phoolchand 9 The court has observed
that these conditions were not met out by the appellant as there was no contract between the
appellant and respondent, thus violating the primary requirement itself.The main issue which
court dealt with was whether an agreement of sale gives a conveyable interest in the land to the
proposed vendee.Analysing section Section 54 of the Transfer of Property Act and referring to
the case of State of U.P. Vs. District Judge & Ors 10, the court had answered to this question in
negative.In this case the court said that “According to Section 54 of Transfer of Property Act, the
property gests conveyed only by registered sale deed which having value more than
Rs.100.”Thus unless there was a registered sale document in favour of Pishorrilal, the title of
ownership continued to vest in Respondent and Pishorrilal lacks the capacity to transfer the
ownership to any other third party.Thus the agreement of sale made between Piahorrilal and
appellant does not come within the meaning of the contact to sale in the first condition and thus
automatically appellant is also evicted from the meaning of transferee under Section 53A.The
court took principle of privity of contract into consideration and gave the ruling that the
respondent was a third party to whom the appellant cannot avail the doctrine of part performance
as contemplated under Section 53A.In the recent judgement of Vasanti v Venugopal 11 also, the
court had reinstated that the ‘pre existence of a contract is the most important limp of Section

8
2002 (3) SCC 676,
9
AIR 1970 SC 546
10
1997 (1) SCC 496
11
 2017 SC 1569

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53A.Further in the case of Ambaden Waghubhai Haribhaidesai v. Baldevbhai
BecharsinghVaghela12, the court held that a suit by proposed transferee under Section 53A will
not be maintainable against the third party.Thus analyzing caselaws and provisions of Transfer of
Property Act, the court can be said to be justified in their decision.

Apart from principles and reasoning stated in the ratio decidenti, the court in its obiter dicta has
also specified the intention behind the introduction of Section 53A into the Transfer of property
Act and discussed its aspects and applications.The Supreme Court observed that doctrine of part
performance as stated in Section 53A creates a bar of estoppel in favour of transferee who has
taken possession of property in part performance and willing to perform his part of contract
against the transferor who tries back to get back the possession by taking advantage of his own
fault.Thus this doctrine provides a shield or defence against the disturbing transferor, although it
has nothing to do with the ownership of the land.In the case of Prabodh Kumar Das v.
Dantamara Tea Co. Ltd13, The Privy Council held that in India the equity of part-performance
was not an active equity and it does not give any right of action to the transferee who is in
possession of property under an unregistered contract of sale,

Inshort, by applying Section 54 and relevant caselaw, court first proves the absence of a contract
to sale and then establishes the violation of the essential conditions for doctrine of part
performance under 53A by describing the ingredients of the Section through caselaw.Further by
applying the reasonable man’s test court also pointys out the lack of a reasonable care and
precaution from the part of appellant.Thus from a critical point of view, in my opinion, Court is
justified in its conclusions and reasons and further the case also reference for the [principles and
application of Doctrine of part performance as stated in Section 53A of the Transfer of Property
Act.

12
AIR 2010 Guj. 17
13
AIR 1940 PC 1

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 CONCLUSION AND SUGGESTIONS

The main principles laid down in the case of Rambhau Namdeo Gajre vs Narayan Bapuji Dhotra
can be summarized as :

1. For availing defence of doctrine of part performance under Section 53A, there must be a
contract of sale between transferor and proposed transferee.
2. The agreement of a sale does not convey any title of ownership from the transferor to the
proposed transferee.

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 3. The section 53A has nothing to with the ownership right of proposed transferor.
4. For the purpose of conveying interest in the land compliance of Section 54 of Transfer of
Property Act is compulsory.

While coming to the present position of Section 53A, after the enactment of Registration and
other related laws(Amendment) Act 2001, the Section has lost its importance.Section 53A was
amended and the words “the contract, though required to be registered has not been registered”
has omitted from Section and thus registration of deed of transfer of immovable property has
become compulsory.14Although tPROVIhe Section can be invoked for any defects other than
registration, in a country like India where a large section still exist without any access to legal
knowledge, making the registration compulsory under Section 17 of the Registration Act, 1908
or Transfer of Property Act15, largely diminishes the scope of Section 53A.Legislature has to take
measures to resolve this confusion so as to ensure equitable remedies to the aggrieved persons.

BIBLIOGRAPHY

PROVISIONS

 Section 53A of Transfer of Property Act, 1882

 Section 54 of Transfer of Property Act, 1882

CASELAWS

 Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi2002 (3) SCC
676

 Mohammad Musa v. Aghore Kumar Ganguli (1914) 42 Cal. 801 ; 28 IC 930.

14
Poonam Pradhan, Property Law (2nd Edition, 2013,  LexisNexis) 253.
15

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  Ariff v. Jadunath AIR 1931 PC 79 ; 58 IA 91
 Mian Pir Bux v. Sardar Mohammad Tahir AIR 1934 PC 235.
 Nathulal v Phoolchand AIR 1970 SC 546
 State of U.P. Vs. District Judge & Ors 1997 (1) SCC 496
 Vasanti v Venugopal2017 SC 1569
 Ambaden Waghubhai Haribhaidesai v. Baldevbhai BecharsinghVaghelaAIR 2010 Guj.
17
 Prabodh Kumar Das v. Dantamara Tea Co. LtdAIR 1940 PC 1

BOOKS

Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal Law Publishers) 561

Poonam Pradhan, Property Law (2nd Edition, 2013,  LexisNexis) 253.

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