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PETITIONER: SHANKAR GOPINATH APTE

       Vs.

RESPONDENT: GANGABAI HARIHARRAO PATWARDHAN

DATE OF JUDGMENT25/08/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. GUPTA, A.C.

CITATION:  1976 AIR 2506            1977 SCR  (1) 411  1976 SCC  (4) 112  CITATOR INFO :  D          1987 SC1242  (8,11)

ACT:             Transfer  of  Property Act (4 of 1882), s.  53A,  Indian         Easements  Act (5 of 1882), s. 60 (b), and  Indian  Contract         Act (9 of 1872), s. 221--Scope of.

HEADNOTE:             Practice  and Procedure--High Court’s duty to give  rea-         sons even in cases of summary dismissal.             The respondent executed a power of attorney in favour of         the  appellant,  which  ex-facie showed that it  was  to  be         effective for a period of one year and that it was  executed         to  enable the appellant to manage the  respondent’s  lands.         The  appellant immediately thereafter wrote a letter to  the         respondent agreeing to undertake the duties specified in the         power of attorney and to pay her a sum of Rs. 2,000 annually         from the income of the lands.  He was to retain the rest  of         the income as his "honorarium".  The appellant then obtained         possession  of the lands from a person who was  in  unautho-         rised  occupation,   and  continued  in  possession  of  the         property  from year to year paying at intervals, the  agreed         sum  of  Rs.  2,000.  He then got his name  entered  in  the         record  of rights as a tenant of the respondent,   and  gave         notice  to  the respondent that,  being ,a tenant,   he  had         acquired  a statutory right to purchase the lands under  the         Bombay  Tenancy and Agricultural Lands Act.  The  respondent         thereupon  filed a suit for the recovery of the amount  that         may  be  found due to her from the appellant on  taking  ac-         counts, and for an injunction restraining the appellant from         obstructing her in the enjoyment of the property.   Alterna-         tively,she prayed for a decree for possession of the lands.             As  the  Civil Court had no jurisdiction to  decide  the         respondent’s  claim because of the appellant’s claim  to  be         her tenant, the issue of tenancy was referred to the Tehsil-         dar  under s. 85-A or the Bombay Tenancy Act.  The  proceed-         ings  under this section came to an end after the  appellant         carried his contention unsuccessfully from the Tehsildar  to         the  Supreme Court.  The appellant then sought to amend  his         written statement by incorporating the plea that he was in         possession of the lands, in part performance of an agreement

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       of sale between himself and the respondent, and that  there-         fore he was entitled to defend his possession under s. 53-A,         Transfer of Property Act, but the application for  amendment         was  rejected.  The suit was then decreed giving  possession         of  the  lands  to the respondent with a  direction  to  the         appellant  to pay a sum of Rs. 4390 to the respondent.   The         appeal to the High Court was dismissed summarily.         In appeal to this Court, it was contended.             (1) that the power of attorney executed by the  respond-         ent  in  favour of the appellant was a  sham  and  colorable         document,  its  real object being to put  the  appellant  in         possession as a potential purchaser,  and that therefore  s.         53-A Transfer of Property Act is applicable,             (2) that the appellant must, in any event, be deemed  to         be  a licensee of the respondent protected under  s.  60(b),         Easements Act, 1882, since he had executed works of a perma-         nent character on the lands involving heavy expenses;             (3)  that possession of the lands should not  have  been         awarded  to the respondent along with its valuable  improve-         ments  without compensating the appellant for  their  value;         and         (4) that the decree for Rs. 4390 should not have been passed         as there was question of accountability.         412         Dismissing the appeal,             HELD:  (1) In matters involving construction of  written         instruments where rival interpretations have more than  mere         plausibility, the High Court ought to give a brief statement         of  reasons even while dismissing the appeal  summarily.  In         the  instant case, the High Court had called for the  record         to  verify whether the decree of the trial court  was  legal         and proper.  Therefore, a brief statement of reasons  should         have  been given by the High Court saving the Supreme  Court         from considering the pleading and evidence for itself.  [415         D-E]             (2) The appellant is not entitled to protect his posses-         sion under s. 53-A, Transfer of Property Act.  [415 G]         (a)  The application for amendment of his written  statement         was belated;                                                     [415 G]         (b) the conditions of the section were not satisfied.                                                   [416 D]             (i) There was no written contract at all as required  by         the  section.  A letter written by the respondent’s  brother         to the appellant could not be so construed as at best, it is         written  evidence  of  a contract for sale   but   not   the         written contract for sale itself.  [416 C]             (ii)  The  terms necessary to  constitute  the  transfer         cannot  be  ascertained with reasonable certainty  from  the         letter; and the appellant was not put in possession in  part         performance  of the contract.  He obtained possession  under         the  power of attorney as an agent and there is  nothing  to         show  that the character of his possession ever  changed  to         that  of a potential purchaser.  He continued to  remit  off         and on, the agreed sum of Rs. 2,000 to the respondent  which         is  entirely inconsistent with his character as a  potential         purchaser of the lands.  [416 D]             (c:)  Though the recital in the power of  attorney  that         the respondent was herself in possession of the property was         not  consistent with the true facts, and the real object  of         the power of attorney was to enable the appellant to  obtain         possession of the lands from persons in unauthorised posses-         sion, it could not be said that the power of attorney was  a         sham  and colourable document.  In fact, it was acted  upon,         because,  immediately  after its  execution  the   appellant

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       wrote  a  letter, which had become part and  parcel  of  the         power  of attorney, accepting its terms.  Assuming that  the         power  of  attorney is a sham and colourable  document,  the         appellant can claim no right except the two rights which  he         had claimed, namely, as a tenant as a prospective purchaser.         But these rights were negatived.  [416 H; 417 C-D]             (3)  The argument that the appellant was a  licensee  is         based  upon the assumption that the power of attorney was  a         nominal  document.  But in view of the finding, that it  was         intended  to be acted upon and was in fact acted upon,  this         argument  has no basis.  Moreover, there, is no evidence  as         to  what  improvements were made or what expenses  were  in-         curred  by the appellant.  Assuming that the appellant  exe-         cuted  some work of a permanent character, it could  not  be         said  that he did so "acting upon the licence", as  required         by  s. 60(b), Easements Act.  He must have done it not as  a         licensee,  but in the belief that he was a tenant and  would         become a statutory purchaser, or that he could implement the         alleged oral agreement for sale.  [417 E-F]             (4)  (a)  No  issue that  possession  with  improvements         should not be given to the respondent was raised.  [418 B]             (b)  In  neither of the two capacities he  put  forward,         namely, tenancy and possession in part performance, could he         claim the value of improvements alleged to have been made by         him.  [418 C]             (c)  The amounts said to have been spent by  the  appel-         lant,  without any reference whatsoever to  the  respondent,         cannot  also be recovered under s. 221 of the Contract  Act,         on which the appellant sought to rely, as that section  does         not in terms apply.  [418 E]             (5)  The  decree for Pa. 4390 does not suffer  from  any         infirmity  because the contention of the respondent in  sub-         stance was that the appellant had  failed to pay the  agreed         sum of Rs. 2000 to her for certain years.  [418 A]         413

JUDGMENT:         CIVIL  APPELLATE  JURISIDICTION :--Civil Appeal No.  467  of         1976.             (Appeal  by  Special Leave from the Judgment  and  Order         dated  6-2-1975  of the Bombay High Court  in  First  Appeal         No.13/75).         B.D. Bad, S.B. Wad and Mrs. L Wad, for the appellant.             U.R.  Lalit, P.H. Parekh and Miss Manju Jetley  for  the         respondent.         The Judgment of the Court was delivered by             CHANDRACHUD, J.  This appeal by special leave arises out         of an order dated February 6, 1975 of the Bombay High  Court         dismissing  First  Appeal No. 13 of  1975  summarily.   That         appeal was filed by the appellant,  Shankar Gopinath   Apte,         against  the  decree  passed by the learned II  Joint  Civil         Judge, Senior Division, Poona in Special Civil Suit No.  107         of  1968.  That suit was filed by the  respondent,  Gangabai         Hariharrao  Patwardhan  to recover the amount  that  may  be         found  due to her on taking accounts from the appellant  and         for an injunction to restrain the appellant from obstructing         her  in the enjoyment of the suit  property.  Alternatively,         the  respondent  prayed for a decree for possession  of  the         suit lands.             The  suit  property  consists of  3  agricultural  lands         bearing  Survey Nos. 98/1-1, 98/1-2 and 99,  admeasuring  in         all  54  acres and 20 gunthan. The lands are situated  in  a         village called Kiwale in Pune district.

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           These  lands  belonged originally  to  the  respondent’s         husband  who  died on February 20, 1960 leaving her  as  his         sole  heir.   On December 29, 1961 a power of  attorney  was         prepared  for being executed by the respondent in favour  of         Western  India Trustee and Executor Co. Ltd.,  Satara.   The         object  of the power of attorney, as expressed therein,  was         inter  alia, to authorize the Company to collect the  income         of  the land and to take steps for disposing of the land  by         sale. But for some reason or the other the document remained         unexecuted.   On February 1, 1963 the respondent executed  a         power  of  attorney  in favour of the  appellant.  The  true         nature  of  this document and its real purpose are  both  in         dispute but ex-facie, the document was to be effective for a         period  of one year and was executed in order to enable  the         appellant to manage the respondent’s lands and to arrange to         cultivate  them.  By a letter dated March 3, 1963  addressed         to  the  respondent, the appellant agreed to  undertake  the         duties specified in the power of attorney and to pay to  her         a sum of Rs. 2000 annually from the net income of the lands.         The  rest of the income, according to the letter, was to  be         retained by the appellant for his "honorarium".             Within two or three weeks of the execution of the  power         of attorney, the appellant succeeded in obtaining possession         of  the lands from one Nathuram Agarwal on payment of a  sum         of Rs. 9300. Nathuram, it appears, had come to be in posses-         sion  of the lands through one Motiram who was a  tenant  of         the  respondent but who was unable to meet  his  commitments         under the terms of the tenancy.  The appellant continued  in         possession of the property from year to year on payment,  at         intervals,  of  the agreed sum of Rs. 2000  per  annum.   On         January 1, 1967 the appellant’s name, on an application made         by him, was entered in  the         414         record of rights as a tenant of the respondent; In February,         1968 appellant gave a notice to the respondent under section         32-0 of the Bombay Tenancy and Agricultural Lands Act  stat-         ing  that,  being a tenant of the lands, he had  acquired  a         statutory right to purchase the lands and that he was  will-         ing to exercise that right.  Respondent disputed the  appel-         lant’s  claim by her reply of February 26 and after  an  ex-         change of further notices, respondent filed the present suit         on May 3, 1968.             By  his written  statement dated October 16,  1968   the         appellant raised various technical contentions but his  main         defence  to  the suit was that he was in possession  of  the         lands  as  a  tenant of the respondent and in  view  of  the         provisions of the Bombay Tenancy Act, the Civil Court had no         jurisdiction to entertain the suit.  The appellant contended         that the power of attorney was executed by the respondent in         his  favour solely in order to enable him to obtain  posses-         sion of the lands from Nathuram and that, otherwise, it  was         a sham document, a mere cloak for inducting him on the  land         by evicting an unauthorized occupant.             Several  issues were struck by the trial court on  these         pleadings  but it is only necessary to state at  this  stage         that since the main issue in the suit was whether the appel-         lant  was  in  possession of the lands as a  tenant  of  the         respondent,  the Civil Court had no jurisdiction  to  decide         the  respondent’s claim for possession and had to refer  the         issue of tenancy to the Tahsildar under section 85-A of  the         Bombay Tenancy Act.             The  Tahsildar decided the issue against  the  appellant         holding  that he was not a tenant of the  respondent.   That         finding  was  confirmed in appeal by the Collector  but  the         Maharashtra  Revenue Tribunal, allowing a revision  applica-

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       tion  filed by the appellant, differed from  the  concurrent         finding  of fact recorded by the authorities below and  held         that  the  appellant  was in possession of the  lands  as  a         tenant  of the respondent. The judgment of the Tribunal  was         set aside by the Bombay High Court in Special Civil Applica-         tion No. 1430 of 1971.  The High Court held that the  appel-         lant  was  in  possession of the lands as an  agent  of  the         respondent under the power of attorney and that the Tribunal         was  in error in upsetting the finding of the Collector  and         the  Tahsildar  that the appellant was not a tenant  of  the         respondent.  The appellant’s application for leave to appeal         to this Court was dismissed by the High Court and the  peti-         tion for special leave filed in this Court met with the same         fate.  The  proceedings  under section 85-A  of  the  Bombay         Tenancy Act ended sometime late in 1972.             Thereafter,  on December 4, 1972 the appellant filed  an         application in the trial court for amendment of his  written         statement  seeking leave to plead that he was in  possession         of  the  lands in part performance of an agreement  of  sale         between himself and the respondent and that therefore he was         entitled to defend his possession under section 53-A of  the         Transfer  of Property Act.  That application was opposed  by         the  respondent  and was dismissed on April 13,  1973.   The         appellant  filed  a civil revision application in  the  High         Court against that order.  After admitting the revision, the         High  Court heard both the sides and confirmed the order  of         the trial court rejecting the amendment application. The         415         High  Court  held that the revision  application  raised  no         question of jurisdiction and that the application for amend-         ment made by the appellant was mala fide.             At long last, the suit which was field by the respondent         in May, 1968 was taken up for hearing in January, 1974.   On         November  30, 1974 the suit was decreed by the trial  court.         On  February  6,  1975 the appeal filed  by  the,  appellant         therefrom was dismissed summarily by the High Court.  On the         very next day the respondent obtained possession of the suit         lands from the appellant, which in the long context, must go         on  the record as a matter of refreshing promptitude.   This         Court granted special leave to the appellant in April, 1976.             We would have been saved the futile exercise of  looking         at the pleadings and considering the evidence for  ourselves         if only the High Court had given us the benefit of its views         while dismissing the appeal summarily.  A brief statement of         reasons would have served that purpose. The unspeaking order         "Dismissed"  which  the  High Court has  passed  affords  no         indication  whatsoever as to the reasons which impelled  the         Court  to deal with the appeal before it as unworthy of  any         serious  consideration.  In matters  involving  construction         of written instruments where rival interpretations have more         than mere plausibility, the High Court ought to give a brief         statement of reasons while dismissing the appeal  summarily.         In the instant case the High Court had called for the record         before  dismissing  the  appeal which  only  shows  that  it         thought  it  necessary to verify certain  matters  from  the         record  in  order to find whether the decree passed  by  the         trial  court  was  legal and proper.  But since  on  a  full         consideration  of  the appeal and on hearing both  sides  we         have  come  to the conclusion that the appeal is  devoid  of         merit,  we.  propose to dispose it of ourselves  instead  of         remanding it to the High Court.             The main plank, and perhaps the only one, of the  appel-         lant’s defence in the trial court was that he was in posses-         sion  of  the lands as a tenant of the  respondent.   Having         carried  that point from the Tahsildar to the Supreme  Court

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       and  having failed to establish it, the appellant set up  an         entirely  new  and inconsistent case at the hearing  of  the         suit that he was in possession of the lands under an  agree-         ment  of  sale  and was therefore entitled  to  protect  his         possession  under  section 53A of the Transfer  of  Property         Act.  The application for amendment of the written statement         seeking  leave  of the trial court to raise  this  plea  was         rejected  by it and the order was confirmed in  revision  by         the High Court. Apart from the fact that the application for         amendment  was made at a late stage of the  proceedings,  on         merits,  there  is no substance whatever in  the  contention         that  the  appellant is entitled to protect  his  possession         under  section  53A.  That section provides, in  so  far  as         material,  that  if  any person contracts  to  transfer  for         consideration  any immovable property by writing  signed  by         him  or  on  his behalf from which the  terms  necessary  to         constitute  the transfer can be ascertained with  reasonable         certainty,  and the transferee has, in part  performance  of         the  contract, taken possession of the property or any  part         thereof,  or the transferee being already in possesion  con-         tinues in possession in part performance of the contract and         has done some act in furtherance of the contract and         416         is  willing to perform his part of the contract, then,  even         though the contract is required to be registered but has not         been  registered, the transferor is debarred from  enforcing         against the transferee any right in respect of the  particu-         lar property except a right expressly reserved by the  terms         of  the contract. The first and foremost difficulty  in  the         appellant’s way is that there is no written contract at  all         under  which  the respondent can be said to have  agreed  to         sell  the property to the appellant. Counsel for the  appel-         lant  relied  on a letter (Ex. 147) dated  January  4,  1968         which was written by the respondent’s brother to the  appel-         lant as constituting a written contract of sale. Even assum-         ing  that the respondent’s brother was authorized  to  write         the  letter on her behalf, it only refers to an oral  agree-         ment  between the appellant and the respondent  under  which         the  latter had agreed to sell the lands to the  former.  By         that  letter,  the  respondent’s  brother  complained   that         though  the appellant had agreed to purchase the lands for a         sum  of  rupees one lakh and to pay the  full  consideration         within a period of six months, he did not take any steps  in         fulfilment  of these terms. At best, the letter  is  written         evidence of an oral contract of sale but is not the  written         contract  itself.  On this narrow ground the  contention  of         part  performance is liable to fall. Besides, many a  condi-         tion  of  section  53A of the Transfer of  Property  Act  is         unfulfilled. The terms necessary to constitute the  transfer         cannot  be  ascertained with reasonable certainty  from  the         letter,  the respondent obviously was unwilling  to  perform         his  part of the contract, and the appellant was not put  in         possession in part performance of the contract.  Admittedly,         he obtained possession under the power of attorney  executed         by the respondent in his favour and there is nothing on  the         record  to  show that the character of his  possession  ever         changed  as a result of the contract of sale. The  appellant         continued to remit, off and on, the agreed annual sum of Rs.         2000 to the respondent, which was entirely inconsistent with         his character as a potential purchaser of the lands. In this         background,  we are not surprised that the trial court  dis-         missed  the  appellant’s  application for amendment  of  the         written statement and the High Court,. while confirming that         order  in  revision, characterized the application  as  mala         fide.

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           It is urged on behalf of the appellant that the power of         attorney  is a sham and colourabIe document, its object  was         to  arm  the  appellant with a written  authority  to  evict         unauthorised  occupants  from the lands and  that  its  real         purpose was to put the appellant in possession as a  potent-         iaI  purchaser.  To an extent, it is correct that  the  real         object  of  the power of attorney was  different  from  that         which is expressed in the document.  The real object was  to         enable the appellant to obtain possession of the lands  from         Nathuram  Agarwal and others who were m  possession  thereof         unauthorisedly.   The  power of attorney  recites  that  the         respondent  herself was in possession of the lands but  that         was  an  untrue statement of which the  explanation  may  be         sought  in  the notorious unwillingness of a true  owner  to         acknowledge in writing the possession of a trespasser.   But         though  the recital that the respondent was herself in  pos-         session  of  the property was not consistent with  the  true         facts, it is wrong for that reason to say that the power  of         attorney  was a sham and colourable document.   Admittedly;,         immediately  after the execution of the power  of  attorney,         the  appellant  wrote a letter (Ex. 155) dated  February  3,         1963 to the respondent            417         accepting the power of attorney in terms, agreeing to pay to         her  a sum of Rs. 2000 per year from the net income  of  the         lands  and  reserving  the rest of the  income  as  his  own         "honorarium". Unquestionably, the letter was written by  the         appellant  in furtherance and in fulfilment of the terms  of         the  power  of  attorney. Then again, in the  absence  of  a         concluded sale, the appellant continued in possession  under         the power of attorney and indeed he used to make the  annual         payment of Rs.2000 to the respondent, which by reason of the         letter  Ex. 155,, had become a part and parcel of the  power         of attorney itself. It is therefore impossible to accept the         appellant’s  contention1 that the power of attorney was  not         intended to be acted upon and was a sham.             The  appellant having failed to establish that he was  a         tenant of the respondent or that he was put in possession of         the  lands in part performance of an agreement of  sale,  we         are unable to appreciate the drive of a persistent  argument         that  the power of attorney is a sham and  colourable  docu-         ment.  Assuming  that it is so, the appellant can  claim  no         right  apart from that document except the two rights  which         stand  negatived.  It then is  inconsequential  whether  the         power of attorney was or was not intended to be acted upon.             Faced  with  this difficulty, learned  counsel  for  the         appellant  was driven to raise points on which there  is  no         pleading,  no issue and naturally no satisfactory  evidence.         The first of such contentions raised by Mr. Bal is that  the         appellant must be deemed to be a licensee of the  respondent         and  since he has executed work of a permanent character  on         the  land  involving heavy expenses, the  licence  would  be         irrevocable under section 60(b) of the Easements Act,  1882.         This argument was made expressly on the assumption that  the         power  of  attorney  was a nominal  document  and  therefore         inoperative.   In view of our finding that the  document_was         intended  to be acted upon and was in fact acted  upon,  the         argument or irrevocable licence does not survive for consid-         eration.   But  having  spent  some  time  in  chasing   the         argument,,  we are constrained to say that such evidence  as         there  is  on the record seems inadequate to prove  the  im-         provements  made or the expenses incurred by the  appellant.         He has admitted in his evidence that the   figures which  he         gave in his examination-in-chief as regards the amount spent         on improvements were stated from memory and that he had  not

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       produced  his  accounts to corroborate the oral  word.  Only         one  .more  thing  need be stated: even  assuming  that  the         appellant has executed work of a permanent character on  the         land it cannot be said that he has done so "acting upon  the         licence", as required by section 60(b) of the Easements Act.         If  he  really improved the land by executing a  work  of  a         permanent  character, he did so in the belief that  being  a         tenant he will become a statutory purchaser of the land,  or         that the oral agreement of sate will one  fine day be imple-         mented.   The  execution of work would therefore be  in  his         capacity  as a tenant or a prospective purchaser and not  in         his capacity, as a licensee.             Mr.  Bal also challenged the decree for the  payment  of         Rs.4390 which has been passed in favour of the respondent by         the trial court. It is true that there was no accountability         as  such  between the appellant and the  respondent  but  in         substance the contention of the respondent         418         was  that  the  appellant had  failed  to  pay   the  agreed         amount   of Rs. 2000 to her for certain  years  and   should         therefore  be  held accountable to pay the same.  There  is,         on  merits, no infirmity in the finding of the  trial  court         that a sum of Rs. 4390 is due to the respondent in pursuance         of the letter of consent, Ex. 155.             Finally, Mr. Bal urged that the trial court was in error         in  awarding possession of the suit lands to the  respondent         along with the valuable improvements made by the  appellant.         No issue was sought on this question and indeed no  argument         was made in the trial court that it could not award  posses-         sion of the lands together with the improvements.  Original-         ly,  the sole defence of the appellant to the suit was  that         he was a tenant. That contention having failed, he attempted         to  urge  that  he was in possession of the  lands  in  part         peformance  of a contract of safe. In neither of  these  two         capacities could he claim the value of improvements  alleged         to have been made by him. That explains why he did not  urge         the contention which he is now urging as an argument of last         resort             Counsel for the appellant attempted to draw some  suste-         nance from the provisions of section 221 of the Contract Act         in  support of the claim for the value of  improvements  but         that  section has nothing to do with the case. It  gives  to         the  agent  a lien over the principal’s  property  which  is         received by the agent, until the amount due to the agent  as         commission,  disbursements  and services in respect  of  the         property has been paid or accounted for to him. The  amounts         said  to have been spent by the appellant for improving  the         property, without any reference whatsoever to the respondent         cannot  be recovered under section 221 of the Contract  Act,         as it does not fall within its terms.             In the result, the unspeaking order of dismissal  passed         by  the Bombay High Court can seek its justification in  the         reasons  given  by  us  above.  The  appeal  is  accordingly         dismissed with costs.         V.P.S.                                 Appeal dismissed.         419