SARDAR GOVINDRAO MAHADIK & ANR. versus DEVI SAHAI & ORS.

SARDAR GOVINDRAO MAHADIK & ANR. versus DEVI SAHAI & ORS.

Mere retention of possession by mortgagee already in possession by virtue of the mortgage does not amount to part performance under Section 53A, especially where acts alleged in furtherance of contract occurred prior to written contract and sale deed remains unregistered. The mortgagee is not entitled to the benefit of doctrine of part performance. In regard to auction purchaser, only a stranger is protected if sale proceeds during the pendency of appeal; decree-holder auction purchaser is not entitled to more than the decreed amount, proportionate costs, and interest. Motilal was awarded Rs. 7,500 inclusive of decretal amount, interest, costs, and litigation costs, chargeable on the...

Parties
Appellant: Sardar Govindrao Mahadik; Appellant: Gyarsilal; Respondent: Devi Sahai; Respondent: Motilal
Jurisdiction
India
Judgment Date
15 December 1981
Procedural Posture
Civil Appeal / Final Appellate Decision
Outcome
Civil Appeal No. 1144/69 (Govindrao Mahadik) allowed; High Court judgment set aside, trial court restored. Civil Appeal No. 1145/69 (Motilal) disposed of per directions; Motilal awarded Rs. 7,500 inclusive of all dues and litigation costs, recoverable as charge on property.
Legal Topics
Doctrine of Part Performance, Equitable Relief, Attachment Before Judgment, Rights of Mortgagee, Auction Purchaser Protection
Property Law Civil Procedure Doctrine of Part Performance Equitable Relief Attachment Before Judgment Rights of Mortgagee Auction Purchaser Protection

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Parties

Sardar Govindrao Mahadik

Appellant

Gyarsilal

Appellant

Devi Sahai

Respondent

Motilal

Respondent

Procedural Posture

Civil Appeal / Final Appellate Decision

Legal Issues

  1. 1 Whether mortgagee in possession can claim benefit of Section 53A of Transfer of Property Act by virtue of unregistered sale deed.
  2. 2 Whether acts done prior to contract or mere retention of possession constitute part performance under Section 53A.
  3. 3 Effect of attachment before judgment and subsequent auction sale vis-a-vis rights of auction purchaser and decree holder.

Ratio Decidendi

Mere retention of possession by mortgagee already in possession by virtue of the mortgage does not amount to part performance under Section 53A, especially where acts alleged in furtherance of contract occurred prior to written contract and sale deed remains unregistered. The mortgagee is not entitled to the benefit of doctrine of part performance. In regard to auction purchaser, only a stranger is protected if sale proceeds during the pendency of appeal; decree-holder auction purchaser is not entitled to more than the decreed amount, proportionate costs, and interest. Motilal was awarded Rs. 7,500 inclusive of decretal amount, interest, costs, and litigation costs, chargeable on the...

Court Disposition

Civil Appeal No. 1144/69 (Govindrao Mahadik) allowed; High Court judgment set aside, trial court restored. Civil Appeal No. 1145/69 (Motilal) disposed of per directions; Motilal awarded Rs. 7,500 inclusive of all dues and litigation costs, recoverable as charge on property.

Orders

  • Trial court decree restored for appellant.
  • Motilal to be paid Rs. 7,500 inclusive of decretal amount, interest, costs, and litigation expenses; charge to subsist on property at redemption.