Eviction by co-owner and executor upheld; part performance defence rejected for lack of proved contract and readiness to perform.

A co-owner and executor named under a Will could maintain an eviction suit without prior probate or letters of administration, because title of the executor flows from the Will and a co-owner may sue for eviction absent partition or competing entitlement. The tenant's Section 53-A defence also failed: the record treated the payment as a security deposit under the tenancy, not sale consideration, and the appellant did not prove continuous readiness and willingness to perform the alleged agreement to sell. On these findings, the eviction decree and revisional order were upheld and no interference was made.

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Issues: (i) Whether the respondents' suit for eviction was maintainable as filed by executors/co-owners without prior probate or letters of administration; (ii) Whether the appellant could resist eviction on the basis of part performance under Section 53-A of the Transfer of Property Act, 1882 and the alleged agreement to sell.

Issue (i): Whether the respondents' suit for eviction was maintainable as filed by executors/co-owners without prior probate or letters of administration.

Analysis: The Will showed that the husband was appointed executor and, failing him, the respondents were to act as executors. The estate and the right to represent it were governed by the scheme of the Indian Succession Act, 1925, under which title of the executor flows from the Will and not from probate, while Section 213 only restricts proof of rights under the Will in appropriate cases. The respondents were also found to be co-owners/residuary beneficiaries, and a co-owner is entitled to maintain an eviction action. The tenant could not displace that status, particularly in the absence of any partition or conflict among co-owners.

Conclusion: The suit for eviction was maintainable in favour of the respondents.

Issue (ii): Whether the appellant could resist eviction on the basis of part performance under Section 53-A of the Transfer of Property Act, 1882 and the alleged agreement to sell.

Analysis: The Court found that the appellant's own pleadings and documents described the amount of Rs. 5 lakhs as a security deposit under the tenancy arrangement, not as sale consideration. The appellant also failed to show prompt and continuous performance or readiness to perform the alleged contract, having acted only after the eviction proceedings commenced. On the accepted facts, the essential ingredients of part performance were not established.

Conclusion: The defence under Section 53-A of the Transfer of Property Act, 1882 was not available to the appellant.

Final Conclusion: The eviction decree and the revisional order were upheld, and no interference was warranted in exercise of the Court's discretionary jurisdiction.

Ratio Decidendi: A co-owner and executor named under a Will may maintain an eviction action without probate where the estate representation is otherwise established, and the equitable shield of part performance is unavailable unless the contract and readiness to perform are proved by unequivocal conduct referable to the contract.

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