“Sardar Govindrao Mahadik & Anr vs Devi Sahai & Ors ”
A Proposal made by:
Shashwat Pratyush
Roll No: 1761
Class: B.A.LL.B.(Hons.)
Semester: 5th
Dr. Meeta Mohini,
Guest faculty
A research proposal submitted in partial fulfilment of the course The code of
civil procedure for attaining the degree B.A.LL.B. (Hons.)
AUGUST,2019
CHANAKYA NATIONAL LAW UNIVERSITY
Nyaya Nagar, Mithapur, Patna (Bihar)-800001
INTRODUCTION
The mortgagee in this case failed to prove that he did any act in furtherance of the contract or
that the mortgagee was willing to perform his part of the contract either of which is an
essential to prove the case in favour.
The Court held that the mortgagee was not entitled to the benefit under Section 53A and that
he could not possess that property.
FACTS: The original Plaintiff 1, Sardar Govendrao Mahadik (Mortgagor), mortgaged a
property to sole defendant Devi Sahai (Mortgagee) at some rate of interest annually. The
mortgage was a mortgage with possession. The mortgagor on Oct. 5, 1945 served a notice to
the defendant to show the full accounts of the mortgage, of which the mortgagee failed to
provide. Subsequently, some negotiations took place between the two and the property was
sold to the mortgagee but the sale deed for the same could never be registered. On the other
hand, the mortgagor sold the property to the Plaintiff 2, Gyarsilal (Subsequent purchaser) via
a registered sale deed. Thereafter, both the plaintiffs filed a suit against the defendant for the
redemption of the property. The mortgagee at that time was already in possession of the
property.
ISSUE: Can the mortgagee gain the benefit of Section 53A of the Act?
HELD: The Court held that the mortgagee was not entitled to the benefit under Section 53A
and that he could not possess that property. This was due to the fact that the mortgagee could
not prove that he has performed any act or is willing to perform any act in furtherance of the
contract. Since, the mortgagee was already in possession of the property, the mere possession
of the property would render any result to the transferee. He needed to prove something
independent of the mere possession of the property and an act done in furtherance of the
contract, as the court shall not take any the mere act of continuing in possession of the
property as evidence enough to provide the defence to the transferee. The mortgagee could
not prove that he did any act in furtherance of the contract, thus he was held not entitled to
possession over the property.
In this case, the judgment set a good precedent over when the transferee can avail the right
over the property. Mere already in possession of the property is not enough as the person may
be in possession of the property pursuant to any other prior encumbrances. The mere
possession of the property is enough and a strong evidences when the mortgagee or the
transferee is for the first time taking the possession of the property and not when he is already
in possession of the property. Thus, an independent act than a mere possession of property
was required to proved in such case. In the present case, the mortgagee failed to do so and
thus the decision of the court to not to provide him with the defence under Section 53A of the
Act was justified.Section 53A of the Transfer of Property Act, 1882 seeks to protect the
prospective transferees by allowing them to retain the possession over the property, against
the rights of the transferors, who after the execution of an incomplete instrument of transfer,
fails to complete it in the manner specified by law, without there being any fault on part of
the transferee.
In order to understand and analyse the given phrase, it is necessary to look into the just
preceding phrase that is “the transferor or any person claiming under him shall be debarred
from enforcing against the transferee and the persons claiming under him.”
While understanding the concerned phrase, it is important to know the meaning of “any
right”, “property” and “taken or continued in possession”, which the project will deal about.
From the preceding phrase, it is clear that the “any right” is talked about in respect of the
transferor or any person claiming under him to not to have his rights enforced against the
rights of the transferee and any person claiming under the transferee. Thus, the project will
deal with “any right of the transferor.” As to the property, the author shall look into the
meaning and scope of the word “property” and what all can be included in the word property.
Also, the phrase “taken or continued in possession” will be dealt with in order to establish a
reasonable link with the rights of the transferor and the transferee as any right is only subject
to the possession being taken or already in possession of the transferee and no other
condition.
RESEARCH METHODOLOGY:
For the project, the researcher will be relying upon the Doctrinal method of Research.
RESEARCH QUESTIONS?
What kinds of property can be covered within this section?
what is the meaning of “taken or continued in possession” of the property?
What are the provisions of CPC used in judgment ?
AIMS AND OBJECTIVES:
To know the extent and scope of “any right” debarred, which was procured by the
transferor in respect of the “property”
To examine the doctrine of part performance.
To overview of order XXII of CPC
HYPOTHESIS:
The researcher presumes that
The provision provides a statutory right to the transferee against any right of the
transferor to defend his possession over the property, either taken possession or right
in continuance of the possession, the scope of which is discussed in this project..
LIMITATIONS OF STUDY:
Owing to the large number of topics that could be included in the project, the scope of
this research project is exceedingly vast. However, in the interest of brevity, this paper
has been limited to the specified topics. Also, the researcher will have time and
money limitations while making of this project.
TENTATIVE CHAPTERIZATION
1. INTRODUCTION
2. CONCEPT OF TRANSFER OF PROPERTY ACT IN THE JUDGMENT.
3. OVERVIEW OF THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE
4. SARDAR GOVINDRAO MAHADIK & ANR VS DEVI SAHAI & ORS
SUMMARY
5. JUDICIAL PRONOUNCEMENTS
6. CONCLUSION AND SUGGESTIONS
BIBLIOGRAPHY
The researcher has consulted following sources to complete the Rough proposal.
Primary Sources:
I. Acts
1. TRANSFER OF PROPERTY ,1872
2. THE CODE OF CIVIL PROCEDURE, 1908
II. Books :-
1. Sanjeeva Row, Transfer of Property Act
2. S. Vakil, Transfer of Property Act of 1882
3. Poonam Pradhan, Property Law
4. Mulla, The code of civil procedure
Secondary sources
I. Websites
1. https://advocatemmmohan.wordpress.com/2013/02/24/order-1-rule-10-of-cpc-order-
22-rule-10-cpc-section-52-of-the-transfer-of-property-act-section-19-of-the-specific-
relief-act-which-reads-as-under-19-relief-against-parties-and-persons-c/
2. https://definitions.uslegal.com/p/part-performance-doctrine/
