NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROPERTY LAW - I

PROJECT ON

CASE ANALYSIS

DELHI MOTORS CO. v. U.A. BASRURKAR1

Submitted To: Submitted by:

Dr. Sanjay Kumar Yadav Ronak Patidar

(Associate Prof.) 2018BALLB93

1
AIR 1968 SC 794.

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 ACKNOWLEDGEMENT

“ At the very beginning I would like to thank Dr. Sanjay Kumar Yadav was affording us the
opportunity to research and present our findings and our views on such varied topics
concerning Property Law. This paper would not have come fruition without the able guidance
of our teacher. But also thanking Dr. V. Vijaykumar, Vice Chancellor, National Law
Institute University, Bhopal, to give us a chance to present our research. ”

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 SYNOPSIS

INTRODUCTION
Delhi Motors Co. v. U.A. Basrurkar is an important ruling and authority in matters related
to doctrine of part performance. The court discuss the nature of statutory provision that is S.
53A, adopted from English equitable doctrine of part performance. The paper analyses the
case and subsequently comment on the other judgments and nature of the provision. At last,
the author presents his views after going through other authoritative judgments, historical
background and objective of the provision.

SCOPE AND LIMITITATION

The followings are the relevant sections for the case under discussion:
 S. 106, Transfer of Property Act, 1882.
 S. 107, Transfer of Property Act, 1882.
 S. 53A, Transfer of Property Act, 1882.
 S. 27A, Specific Relief Act, 1877.

The scope of critical study is limited to only S. 53A, Transfer of Property Act, 1882. While
the sufficient light has been thrown over other relevant sections and arguments advanced.

REVIEW OF LITERATURE
Section 53A, Transfer of Property Act, 18822 - Part Performance
This section adopts the doctrine of part performance as a statutory provision. “The doctrine is
an English equitable doctrine evolved to prevent transferor from taking any advantage on
account of non-registration of the document, if the transferee has performed his part of the

2
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 2[***] where there is an instrument of transfer, that the transfer has not been
completed in the manner prescribed therefore 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 thereof.]

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contract and in pursuance thereof has taken possession of some immovable property.” 3
However, the scope of statutory provision under Indian law is narrower than the scope under
English law. It is said that under Indian law, equity is passive in nature. It can be used only as
a shield not as a sword. However, question arise while using it as a defence is it necessary
that transferee must be defendant or position as plaintiff or defendant is irrelevant until it is
used as a shield not as a sword. It does not confer title of transferee over the property.

Section 27A, Specific Relief Act, 18774

This provision is also similar to the above provision but scope of two provisions are different.
Section 53A as discussed above is passive equity whereas it provided active equity. It is
applicable only when he, in part performance had taken complete possession. Also, Section
27A was limited only to lease whereas section 53A applies to all transfers.

RESEARCH OBJECTIVE
 To critically analyse the case of Delhi Motors v. U.A. Basrurkar.
 To understand the nature of Section 53A.
 To analyse the current understanding of Section 53A in light of objective of doctrine
of part performance.

PART – I
3
Durga Prasad v. Kanhaiyalal, AIR 1979 Raj 200 (202); Theodar Shohanlal v. Chunnilal, (1995) 2 Sim LJ 926
(P&H).
4
Now deleted in the present Act of 1963.

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 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 495 of 1965

Decided on: 08.01.1968

Appellants: Delhi Motor Company and Ors.

v.
Respondent: U.A. Basrurkar and Ors.

Hon’ble Judges/Coram: J.C. Shah, Vashishtha Bhargava and V. Ramaswami, JJ.

Citation: AIR 1968 SC 794.

FACTS OF THE CASE

 Messrs. Delhi Motor Company (A-1) is a partnership firm of which A-2 to A-5 are
partners. U. A. Basrurkar (R-1), the managing director of New Garage Ltd., a private
limited company. R-2 to R-5 were members of the Board of Directors.
 The firm instituted a suit for possession of part of the building on the basis of an
agreement of sub-lease.
 The firm, evidenced the agreement to sub-lease or the sub-lease, using three
documents. According to the firm, though these documents did not directly evidence a
sub-lease, but in substance and in fact the agreement was of sub-lease by the company
to the firm.
 But, according to the company, three documents placed were negotiations for entering
into a partnership. There was no agreement of sub-lease or a completed sub-lease.
Even the agreement for partnership was never completed.
 In February, 1950, the managing director did not have the authority to enter into this
transaction on behalf of the Company with the firm. Thus, Board of Directors passed
resolution on 22nd March,1950, authorising the managing director to enter into this
transaction.
 The firm came into possession of two portions with effect from 1st April, 1950.
According to the firm, the company did not give possession of other portion of the
leased property and also started obstructing with other portions which were secured
by the firm on 1st April, 1950. A stage came when the firm was completely
dispossessed from the property leased.

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  The firm instituted a suit on 18 th June, 1952. The principal prayer in the suit was for
delivery of possession.

The trial court held that the agreement does not require registration as these documents show
agreement for a sub-lease.

The High Court of Punjab held that these documents constituted a completed lease or
agreement to lease falling within S.2(7) of the Indian Registration Act 5. The High court
disallowed the suit on the ground that lease or agreement to lease evidenced by documents in
writing were unregistered, thus, could not be enforced.

ISSUE(S)
1. Whether the lease falls under the S. 107 of the TPA where lease must be registered or
falls under the S. 106 of the TPA where lease being in respect of immovable property

5
“lease” includes a counterpart, kabuliyat, and undertaking to cultivate or occupy, and an agreement to lease;

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 for purposes other than agricultural or manufacturing is deemed to be a lease from
month to month thus consequently registration is not necessary as S. 107 is
inapplicable?
2. Whether the firm could claim possession under S. 53A of the TPA? Whether the S.
53A is available to a lessee other than as defence?
3. Whether the firm could claim possession of the property on the basis of specific
performance of the contract?
3.1 Whether the three documents presented by the firm as a evidence constituted
agreement in writing?
3.2 Whether the S. 27 of Specific Relief Act can be interpreted as to allow specific
performance even if the possession of part of the property is obtained by the
lessee?

ARGUMENT(S) ADVANCED
FOR APPELLANT

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  Sub-lease completed when the board of director passed the resolution but it does not
require registration as it is not evidenced by these three documents only but was
completed when company gave possession on 1st April, 1950.
 Also, S. 107 TPA was not applicable as lease was not, year to year or for any term
exceeding on year or reserving a yearly rate.
 Although lease relied upon is a lease of immovable property, however, the firm
submitted that lease was not for any fixed period, thus could not be considered as a
lease from year to year basis. Also, rent reserved is not yearly.
 Learned counsel for the firm submitted that no fixed period was mentioned in these
documents, therefore, S. 106 of TPA should be applicable and accordingly lease for
immovable property for purposes other than agriculture or manufacturing must be
deemed to be a lease from month to month.
 It was submitted that as per S. 53A of TPA, the firm could claim possession. The
respondent must be debarred from enforcing any right against the firm which has
already taken the possession of the part of the property. Learned counsel placed this
submission relying on the Allahabad High Court’s “Ram Chander v. Maharaj
Kunwar, I.L.R. (1939) All. 809”6.
 Learned counsel for the firm also relied upon “Ram Kumar Das v. Jagadish
Chandra Deb Dhabal Deb, (1952) 1 SCR 269”7.
 Alternatively, it was also submitted that the three documents together were an
agreement for lease in writing, thus, the firm could claim specific performance of
contract under S. 27 of Specific Relief Act. S. 27 should be interpreted as such that it
is applicable also if possession of part of the property is obtained by the lessee.

FOR RESPONDENT

6
The High Court, in allowing the claim of plaintiff (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.”
7
“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.

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  According to the company, three documents placed were negotiations for entering
into a partnership. There was no agreement of sub-lease or a completed sub-lease.
Even the agreement for partnership was never completed.

REASONING AND JUDGMENT

 The court finds, the submission that S. 107 is not applicable rather presumption under
S. 106 must be drawn in the present lease fails because the lease is lease of
immovable property for a term exceeding one year which is fully governed by S. 107

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 of the TPA. Even the firm made submissions on the basis of three documents,
therefore, court interpreted these documents and found that lease existed from these
documents was for period exceeding one year. These documents clearly showed that
the first payment of rent was to be for a period of 15 months. Thus, S. 107 was
applicable according to which lease for the immovable property exceeding one year
must be made under registered instrument. As the lease is evidenced by unregistered
documents, the firm could not claim rights on the basis of such documents.
 On the submission that, since there was no mention of fixed period for the lease in
these documents the lease must be presumed to be a lease from month to month under
S. 106, the court said that it was immaterial whether the lease was from month to
month or from year to year because the court had already found that S. 107 is
applicable as lease was for a period exceeding one year.
 “The court did not agree with the firm’s claim over possession under S. 53A. Court
held that it would be incorrect to allow firm’s claim under S. 53A as the section does
not give lessee a right to claim possession but only guarantee bar against enforcement
of right by a lessor in respect of property of which the lessee has already taken
possession. S. 53A is available only as a defence.”8
 The court found it incorrect to rely on Ram Chander v. Maharaj Kunwar.
According to the court the interpretation even in that case is of no importance to the
firm in the present case. The court differentiated the two case as in the present case
the firm wanted to enforce right and seek decree of possession against the lessor but
in that case plantiff was in the position of defendant seeking to protect his rights. The
court said that no principle was laid down that S. 53A is available other than as a
defence. In the present case in no way it could be inferred that firm is actually seeking
defence of the rights. Thus, S. 53A of TPA was inapplicable.
 The court found that Ram Kumar Das v. Jagadish Chandra Deb Dhabal is also
irrelevant to this case. As the facts of the two cases are different, in the Ram Kumar
Das case, Kabuliyat was not used to ascertain the term of the lessee rather other
documents were used such as rent receipts and on the basis of these documents it was
found that lease rent was paid monthly. Whereas in the present case, nowhere during
the pleadings it was showed that apart from three documents presented there are other
material from which it could be inferred that lease was paid monthly. Even before the
8
The court relied on interpretation laid down by their Lordships of the Privy Council in “Probodh Kumar Das v.
Dantmara Tea Company, 66 I.A. 293.

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 trial court and high court, no such evidence was shown or pleaded. Thus, the court
clearly found S. 106 of TPA inapplicable.
 S. 27 of the Specific Relief Act was inapplicable because of the following reason,
 One, S. 27 is applicable only when entire contract is in writing, while in the
present case the firm itself came forward with the case that the entire contract
was not in writing.
 Two, S. 27 can’t be interpreted as to allow claim of specific performance even
if possession of the part of the property is obtained by the lessee. The court
focusing on the difference in the language of S. 27 Specific Relief Act and S.
53A of TPA, understand that possession must be obtained of the entire
property to which contract remains. The firm never got possession of the
entire property.
 Moreover, the firm did not claim specific performance of contract in its plaint
itself. Decree for possession, damages and injunctions was sought as a relief.

Thus, on the basis of above discussion, the court dismissed the appeal seeking the possession
of the property.

RATIO
 “A lease showing, directly or indirectly, that it is for over one year is one for over one
year.”

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  “Section 27A can be availed by lessee only when, in part performance of the contract,
had taken possession of the entire property or, being in possession, continued in
possession of the property in part performance of the contract.”
 “The section is only meant to bring about a bar against enforcement of rights by a
transferor in respect of property for which the transferee had already taken possession,
but does not give any right to the transferee to claim possession or to claim any other
right on the basis of an unregistered transfer, The section is only available as a
defence to a transferee and not as conferring a right on the basis of which the
transferee can claim rights against the transferor.”

PART II: ANALYSIS OF THE CASE

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“ In the case discussed above an unregistered sublease purported to have been executed by the
respondents in favour of the appellants and the premises said to have been given possession
of to the appellants and from where they were forcibly dispossessed by the respondents. ”

As far as the view regarding the enforceability of the documents, which were evidenced as an
agreement for lease, was concerned the court upheld the high court’s view that the case
involve completed lease or at least agreement for lease of immovable property and since rent
is to given after 15 months, the lease falls under section 107 of the transfer of property.
In the recent decision of SC in Birendra Pratap Singh v. Gulwani Singh, 9 “that in a lease
where no term is specified but an annual rent is provided (as in the present case where rent
was payable on an annual profit-sharing basis, etc.) then it can only be either a permanent
lease or a lease from year to year.”
The lease agreement where term of lease is more than a year falls under section 107 TPA,
therefore, it must be made with registered instrument. Since the three documents were not
registered, the court is correct in upholding that the lease agreement was unenforceable.

But when the arguments of the appellants on the basis of Sec 53A and the exposition of the
law by the court while refusing the argument are noted, things get interesting.
The court in the case under discussion said that, “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 was 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 66 I.A. 293.”10

9
AIR 1968 SC 1069, 1071.
10
Supra Note. 1, at para 7.

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In this connection it might be of interest to briefly note the historical background and
objective of Section 53A of TPA. It was added through amendment in 1929. The concept of
part performance, an equitable doctrine under English law, was adopted as a statutory
provision in India. It was enacted to relax the strict statutory law under registration act and
transfer of property act. However, the scope of the provision adopted in India is narrower
than principle of part performance of the English law. “In India, the equity of part
performance is considered as a passive equity. The protection is available to transferee only
as a defence and not as an attack.”11
Thus, it can be used only as a shield and not as a sword. In other words, a transferee can
always make a defensive use of the equity in section 53A. But a question arises whether this
means that transferee can use S. 53A only as a defendant or transferee can use it both as a
plaintiff or a defendant while defending itself from transferor. What is meant by defence and
defensive use of equity?
But with all due respect the above view cannot be correct. It is incorrect to say that lessee can
never appear as plaintiff to claim protection under S. 53A. This view is good as far as it goes,
but it doesn’t go far. This view is narrower and defeat the objective. “The object of the
provision is to to prevent a transferor or his successor from taking any advantage on account
of the non-registration of the document, provided the transferee has performed his part of the
contract and in pursuance thereof has taken possession of some immovable property. This
right is available to the transferee as defence in order to protect his possession.” 12 When the
transferee forcefully dispossessed by the transferor, this view does not provide for equity.
The correct legal position is as laid down in Ram Chander v. Maharaj Kunwar13, “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

11
In England the euity of part performance is both active as well as passive, but in India it is passive only. See
Chaliagulla Ramachandrayya v. Boppana Satyanarayan, AIR 1964 SC 877.
12
Durga Prasad v. Kanhaiyalal, AIR 1979 Raj 200 (202); Theodar Shohanlal v. Chunnilal, (1995) 2 Sim LJ
926 (P&H).
13
I.L.R. (1939) All. 809

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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.”
Also, as view taken in Oudh Chief Court’s case, they observed, “We are unable to consider
that their Lordships of the Privy Council by the use of the word ‘defendant’ in the above
observation [in Prabodh Kumar Das v. Dantmara Tea Co. Ltd., AIR 1940 PC 1] intended to
mean that the right conferred by Sec. 53A was not available to a person in the position of Mt.
Firdaus Jahan and that the mere position of a party in the heading of a suit would determine
whether he is or is not entitled to benefits of the section. The subsequent sentence makes this
clear. When they use the word "defendant," they use it to describe the position of a person
who pleads Section 53A, and they say his position must be that of a person who invokes it for
defending himself against his transferor. In Municipal Board, Etah v. L. Moradhuj, AIR
1940 All. 340, while dealing with the remark of their Lordships of the Privy Council in
Probodh Kumar Das v. Dantmara Tea Co. Ltd., thought that where their Lordships spoke of
a defendant they did so with reference to the particular facts of the case before them. In Mt.
Shankri v. Milkha Singh A.I.R. 1941 Lah. 407, a full Bench of the Lahore High Court
pointed out that in the Privy Council case above referred to no question of ousting the
transferee from possession had arisen. The plaintiff there wished to be declared the owner
because of certain advantages attaching to the person in whom the legal title vested. Such a
declaration could not be granted in view of the provisions of the Transfer of Property Act,
which contains an express bar to any transfer of title on the strength of such an instrument.
The learned Judges go on to say that there did not appear to be any particular reason why a
person, the legality of whose possession has been denied, should wait for an action to be
brought against him as a trespasser before seeking to establish the legality of his possession,
even though he may have been under some misapprehension as to the full nature of his
rights.”14
“

Thus, it is submitted that view taken by the supreme court in the case under discussion is
incorrect as explained no inference could be drawn from the Probodh Kumar case that the

14
Ewaz Ali v. Firdous Jehan, AIR 1944 Oudh 212.

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provision is available only as a defendant. However, the court didn’t clearly overrule the
Allahabad HC ruling but without expressing any opinion on the correctness and disallowing
the relief under S. 53A seems to be over-ruling. If the court interpreted that relief is not
available to transferee as a plaintiff, then the court has misinterpreted the provision which
does not fulfill the objective and remains a dead letter. ”

The court was wrong in holding that “What the firm is actually seeking to do is to enforce the
rights under the lease and in such a case section 53A of the Transfer of Property Act is clearly
inapplicable.”

“ Thus, it is submitted that the position taken by the court in the case has led to confusion over
correct interpretation of law. Further, the court should have discussed the Allahabad HC’s
ruling and subsequently should have make it clear the nature of the provision. ”

Also, the court in relation to the applicability of Section 27A, delivered correct ruling as firm
never had complete possession of the property. The court correctly distinguished the
language of two sections, S. 53A of TPA and S. 27A of Specific Relief Act, 1887.

CONCLUSION

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“ A consideration of the foregoing cases leads us to the conclusion that the equitable doctrine
of part performance enacted in section 53A can be availed of by a transferee only as a
defence and not as a weapon of attack. Again “defence” and defensive use of the equity do
not necessarily require the transferee, to appear in a court or law only as a defendant. The
transferee, even if he appears in a court as plaintiff can get protection of section 53A
provided, of course, he uses it as a shield and not as a sword. Equally a defendant will not be
entitled to avail of the provisions of section 53A if he uses them as a weapon or attack. ”

BIBLIOGRAPHY

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Online Sources
 www.manupatrafast.com
 “The Doctrine of Part Performance in India”, G.M. Sen. www.ili.ac.in
 “Nature of Right Under Section 53A of The Transfer of Property Act 1882”, A.K.
Srivastava and Bal Kishna. www.ili.ac.in
Books
 Pollock and Mulla, Transfer of Property Act, Lexis Nexis, 2018.
 Saxena Poonam, Property Law, Butterworth, 2018.
Cases Referred
 Ram Chander v. Maharaj Kunwar, I.L.R. (1939) All. 809.
 Ewaz Ali v. Firdous Jehan, AIR 1944 Oudh 212.
 Prabodh Kumar Das v. Dantmara Tea Co. Ltd., AIR 1940 PC 1.

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