The correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of the contract backs out and pleads non-registration as defence, a defence analogous to S. 4 of the statute of frauds".
21. In Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (2) LW 148, Ratnam, J. as he then was held thus:-
" In the absence of production of the agreements, it cannot be assumed that the obligation of the petitioner to pay the rents came to an end either on 28.8.1969 or on 5.11.1969 and there of, the petitioner should be regarded as having continued to remain in possession free from the obligation to pay the rent to the landlord. It is in this connection, a reference to the decision in Duraiswami Nadar v. Nagammal 1981 (l) MLJ 35 becomes necessary. It was pointed out in that decision that unless the agreement of sale itself, in specific terms, refers to the fact that the liability to pay rent had Ceased, it cannot be concluded that the relationship of landlord and tenant had also come to an end. Indeed, in Govind Rao Mahadik v. Devi Sabai, the Supreme Court pointed out at page 1001 and 1002 as follows:-
" Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior of the contract and continues to retain possession.
Madras High Court
Govindaswami Pillai vs Manoranjitham Ammal And Another on 13 March, 1998
Equivalent citations: 1998 (3) CTC 200
1. The defendant is the appellant. The respondents 1 and 2 instituted the suit O.S.No.32 of 1981 on the file of the Sub-Court, Chidambaram against the appellant herein for recovery of possession of four items of suit properties, for recovery of Rs.9,000 towards past mesne profits and for future mesne profits.
2. The trial court dismissed the suit in respect of the suit item 1 and 2 and decreed the suit in respect of the suit items 3 and 4, besides relegated the parties for ascertainment of mesne profits under Order 20, Rule 1, CPC. The respondents preferred A.S.No.167 of 1983 on the file of the District Court, South Arcot at Cuddalore. The appellant herein preferred cross Objections. The first appellate Court allowed the appeal and granted a decree as prayed for possession in respect of the four items and relegated the claim of mesne profits by proceedings under Order 20, Rule 12, CPC.
3. Being aggrieved, the defendant has preferred this second appeal. For convenience, the parties will be referred to as arrayed in the trial court.
4. Before setting out the pleadings, it is essential to record that the title of the plaintiffs for all the four items is not disputed. The learned counsel for the appellant/defendant confined the claim in this appeal in respect of the items 1 and 2 and fairly admitted that the appellant is giving up claim in respect of the suit items 3 and 4 and as such the decree of the courts below in respect of the items 3 and 4 may be confirmed. In this Second Appeal, we are concerned with suit item 1 and 2 alone.
5. The plaintiffs claim that they are the owners of suit item 1 and 2. The plaintiffs and the defendant entered into an agreement, agreeing to sell and purchase the suit properties and the agreement was entered between them on 4.8.1975, whereby the plaintiffs agreed to sell the suit properties to the defendant for a total consideration of Rs.24,000 while acknowledging the payment of Rs.4,000 towards advance. The parties have agreed to complete the sale before 30.12.1975. The plaintiff claim that under the agreement the possession of the properties have been handed over to the defendant and the defendant had failed to perform his part of the contract. As the defendant had committed breach of the agreement to purchase, the defendant had forfeited his rights of tenancy in respect of the suit properties. Hence, the suit for a recovery of possession of all the four items and for recovery of mesne profits.
6. To the notice issued by the plaintiffs, the defendant had sent, a reply claiming that he is a tenant in respect of the suit properties 1 and 2, that the plaintiffs are not entitled for recovery of possession and that the suit for mesne profits also is not maintainable before the Civil Court. Per contra, the defendant pleaded that he is in possession of the suit properties 1 and 2 as a cultivating tenant, that his name has been entered in the record of Tenancy relating to the suit properties, that the plaintiff's are not entitled for recovery of possession, that it is the plaintiff, who had committed breach as they have gone back on their promise, that the defendant has paid Rs.5,000 during August, 1975; Rs.2,000 as well that the defendant called upon the plaintiffs to execute the deed of sale and that the plaintiffs have failed to comply. The defendant also pleaded that the defendant had sent a reply.
7. On the pleadings, the trial court framed as many as 9 issues. The second plaintiff examined himself as PW1, besides two others as PWs 2 and 3, while the defendant examined himself as DW1. The plaintiffs marked Exs.A1 to A8, while the defendant had marked Ex.B1 a lease deed.
8. The trial Court by judgment dated 26th April 1983 dismissed the suit in respect of the suit items 1 and 2 and decreed the suit in respect of items 3 and 4 and relegated the parties for ascertainment of mesne profits by proceedings under Order 20, Rule 12, CPC. In respect of the suit items 1 and 2, the trial court rendered a definite finding that the defendant is a cultivating tenant, that the defendant continued to be a cultivating tenant in respect of the suit items 1 and 2, that the plaintiffs cannot recover possession from the defendant in respect of the suit items 1 and 2 before the Civil Court and that the Civil Court has no jurisdiction in respect of the suit items 1 and 2. In respect of the items 3 and 4, the trial court found that the defendant is not a cultivating tenant in possession and that he cannot resist the suit for. recovery of possession in respect of the items 3 and 4 of the suit properties.
9. On appeal by the plaintiffs, the first appellate Court allowed the appeal preferred by plaintiffs dismissed the cross objections and decreed the suit in its entirety, while holding that the defendant had forfeited his tenancy in respect of the suit items 1 and 2 as his possession is that of a purchaser and that the defendant cannot claim tenancy nor he could claim the benefits of Tamil Nadu Cultivating Tenants Protection Act. Being aggrieved, the defendant has preferred the present second appeal At the time of admission, the following substantial questions of law were framed:-
"1. Whether the Court below, having found that the defendant is not a cultivating tenant in respect of items 1 and 2 of the suit lands from 1960 onwards, is legally correct in arriving at his conclusion?
2. Whether even under the sale agreement the defendant is continued as a cultivating tenant as there is a recital regarding the character of posses-sion?
3. Whether the suit for possession is maintainable in a Civil Court?
4. In any event whether the court below should have held that the defendant is entitled to protection against dispossession in view of Section 53-A of the Transfer of Property Act in respect of all the suit items".
10. Mr. R.G. Rajan, learned counsel appeared for the defendant/appellant while Mr. P. Sukumar appeared for the respondent and sought to support the judgment of the trial court. Mr. P. Sukumar vehemently contended that no interference is called for with respect to the judgment and decree of the first appellate court in respect of items 1 and 2 as according to the learned counsel, the character of possession of the defendants in respect of the suit items 1 and 2, on and after Ex.A1 sale Agreement dated 4.8.1975 is not that of tenant and the defendant is in possession of the suit items in terms of the sale agreement and part performance of the sale agreement, besides pointing out that the defendant cannot still contend that he is a tenant of the suit property after the sale agreement Ex.A1.
11. As already pointed out Mr. R.G. Rajan, learned counsel for the appellant contended that he is not challenging the decree of the trial court as confirmed by the first appellate court in respect of the suit items 3 and 4 as admittedly, the defendant was never a tenant in respect of the said two items. Hence the judgment and decree of the trial court as confirmed by the first appellate court in respect of the two items 3 and 4 have to be confirmed.
12. The legal contention raised by Mr. R.G. Rajan, learned counsel for the appellant is well supported by catena of decisions of this court as well as Supreme Court namely:-
1. Annamalai Goundan v. Venkatasami Naidu and others, 1959 (1) MLJ 301.
2. Sardar Govindrao Mahadik and another v. Devi Sabai and others, . 3. R. Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (II) L.W. 148. 4. R. Kanthimathi and another v. Beatrie Xavier, 1996 (1) MLJ 666. 5. Vellaiyan v. Mookammal, 1997 TLNJ 289.
13. It is well Settled that even after the owner agreeing to sell, the ownership continues to be with the owner and the agreement will not create any interest in the property in favour of the purchaser, who had agreed to purchase and as such there is no scope for merger.
14. In the present case, admittedly the defendant is a tenant in respect of the suit items 1 and 2, even prior to this agreement to purchase the land under Ex.A1 dated 4.8.1975. In fact the defendant, admittedly in respect of the suit items 1 and 2 had been registered as a cultivating tenant and his name finds place in the approved tenancy register. There is no controversy that the defendant is in possession of the, suit items 1 and 2 even prior to sale agreement and he continued as such even after Ex.A1 sale agreement dated 4.8.1975. It is not the case of the plaintiff that the defendant has been inducted into possession of the suit items 1 and 2 under the Ex.A1 sale agreement as part performance of the Agreement to sell. Further it is not the case of the plaintiffs under Ex.A1
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