Property Law

Sardar Govindrao Mahadik v. Devi Sahai

AIR 1982 SC 989; (1982) 1 SCC 237

Facts

Govindrao Mahadik mortgaged his house with possession to Devi Sahai for ₹10,000.
Devi Sahai was already in possession as mortgagee.
He claimed that the mortgagor later agreed to sell the property to him.
Stamps were purchased and a draft sale deed was prepared, but no registered sale deed was completed.
The mortgagor subsequently sold the equity of redemption to Gyarsilal through a registered sale deed.
The mortgagor and subsequent purchaser sued Devi Sahai for redemption.
Devi Sahai invoked Section 53A, contending that he continued in possession in part performance of the sale agreement.

Whether possession originally obtained as mortgagee could become possession in part performance.
Whether the alleged agreement and related acts satisfied Section 53A.
Whether Devi Sahai could resist redemption.

Section 53A requires:
a written contract signed by the transferor;
ascertainable terms;
consideration;
possession taken or continued in part performance;
an act in furtherance of the contract; and
performance or continuing willingness by the transferee.
Where the transferee was already in possession, some clear act must show that the character of possession changed under the contract.

Devi Sahai entered possession as a mortgagee, not as a purchaser.
Merely remaining in the property after an alleged sale agreement was legally neutral.
His continued occupation was equally referable to the existing mortgage.
For Section 53A, the act relied upon must be unequivocally referable to the sale contract.
The alleged payment of ₹1,000 for stamps and registration expenses did not provide sufficient proof:
the timing of the payment was disputed;
it apparently preceded the alleged contract; and
it did not clearly change the nature of possession.
The evidence regarding the terms and nature of the alleged sale was inconsistent.
There was no complete written contract satisfying the statutory requirement.
Devi Sahai also failed to establish continuous readiness and willingness to complete the transfer.
Section 53A could not transform an incomplete and uncertain transaction into ownership.
His possession therefore remained mortgagee possession, which was subject to the mortgagor’s right of redemption.

Devi Sahai was not entitled to protection under Section 53A.
Continued possession as mortgagee did not by itself constitute part performance.
The registered purchaser of the equity of redemption was entitled to redeem the mortgage.
The mortgagee could not retain the property as an alleged purchaser.