9911796707
TMI Blog1986 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the petitioner could not be deemed to be the person owning or holding the said extent of land within the meaning of the provisions of the Act. This contention of the petitioner has been repelled by all the authorities who are respondents herein. The orders of the authorities are being put in issue in this writ petition. Mr. T. Chengalvarayan, learned counsel appearing for the petitioner, would contend that when possession of that extent of land has been parted with in favour of the transferee under the agreement of sale, the petitioner cannot be held to be a person owning or holding the land within the meaning of section 2(q) of the Act read with section 2(nn) of the Act. Section 2(q) read as follows: " `person' means any individual o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Property Act. Section 53A of the Transfer of Property Act runs in the following terms : " Part Performance.-Where 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 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 the contract, though re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section is a right on the part of the transferee to plead in defence that the transferor is debarred from enforcing any right in respect of the property transferred. While in English law the equity of part performance is an active equity which a plaintiff in possession may enforce in an independent suit or proceeding, e.g., a suit for specific performance, or for an injunction to restrain dispossession, after the enactment of section 53A, the right conferred by the section is a passive equity available only to the defendant to protect his possession." The interest which a person has in the property by virtue of section 53A of the Transfer of Property Act does not amount to ownership of property and hence no claim on his behalf with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2(q) of the Act must own or hold the property and " to hold " within the meaning of section 2(nn) of the Act could only be possessing and enjoying either as owner or in other capacities mentioned therein. We are not concerned with other capacities here. Hence, there is no escape for the petitioner from the Act in respect of this extent, covered by the agreement of sale, because he has not ceased to be the owner ; and there is no transfer of title in favour of the transferee. Section 23 of the Act has no place and relevancy in the context and on the facts of the case, because no transfer in the eye of law has taken place. A Bench of the High Court of Gujarat in CWT v. H. H. Maharaja F. P. Gaekwad [1983] 144 ITR 304, in a case arising und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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