Allowed

Vasudeo Vitthal Relekar v. Arunsidhayya Jangam and Ors.

Bombay HC17 Aug 2004SA/260/1988

Case brief

AI extract

What is this about?

This second appeal quashed lower court judgments refusing specific performance of an agreement for sale of agricultural land. The High Court held the Act of 1947 did not apply as the land was not an allotted holding, and exempted the sale to an agriculturist.

What did the court decide?

Impugned judgments and decrees quashed. Counter claim decreed for specific performance. Appellant directed to deposit balance consideration; Respondents to execute conveyance or face execution applica

Vasudeo Vitthal Relekar Vs Arunsidhayya Jangam and Ors. — Specific Performance | Bombay HC (2004)

¶1

 FARAD CONTINUATION SHEET
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
 SECOND APPEAL NO. 260 OF 1988
 Vasudeo Vithal Relekar, age 37 )
 occupation-Agriculture )
 Residing at Shelgaon )
 Taluka-Barshi, District-Solapur ) .. Appellant/
 Defendant no.1
 v/s.
 1. Arun Sidhayya Jangam )
 (Gajabhar), Age 36 )
 Occupation-NIL )
 2. Shivram Limbaji Kulal, since)
 deceased by his heirs and)
 legal representatives )
 2A. Gangabai Shivram Kulal, )
 Age 40, Occ- Agriculture)
 2B. Vinayak Shivram Kulal, )
 Age 23, Occ-Agriculture )
 2C. Kamal Ramling Kumbhar, )
 Age-28, Occ- Household )
 All residing at Shelgaon (R)
 Taluka-Barshi, Dist-Solapur) .. Respondents/
 (Orig. Plffs 2 & 3)
 -----
 Ms. A.R.S. Baxi, for the Appellant.
 Shri A.A. Kumbhakoni for Respondent nos. 2A to 2C.
 -----
 CORAM: A.S. OKA, J.
 DATE : 17th August, 2004.
ORAL JUDGEMENT.:-
 1. On 19th February, 1988 this court admitted the Second
 Appeal by observing that ground numbers 1 to 3 and 5 to 7

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 raise substantial questions of law. The said grounds read

¶4

 thus :

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 1. Is the Court below correct in holding that as
 the law then in force it was necessary to have the
 permission under the Bombay Prevention of
 Fragmentation and Consolidation of Land Act and as
 there was no permission the contract became void ?
 The Court below has failed to consider that no such
 permission was necessary under the said Act as the
 land was not allotted as contemplated by the said Act.
 Further, the learned Judge has failed to appreciate
 the ratio of 1980 Maharashtra Law Journal, page 547 ?

¶6

 2. It is further submitted that no such

¶7

 permission was necessary in view of the Amendment as
 the sale was to be made to an Agriculturist. It is
 submitted that the said amendment was applicable to
 the present transaction as it was retrospective in
 operation. It is submitted that the Court below has
 erred in holding that in view of Section 31 as then in
 force such permission was necessary ?

¶8

 3. It is further submitted that infact permission

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 was obtained and it is submitted that it was
 irrelevant whether it was obtained by Respondent no.2
 or by the Appellant, the permission is not to a
 particular person but to sell the land ?

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 5. Is the Court below correct in holding that
 provisions of Section 32 of the Contract Act are
 attracted to the present contract and the contract was
 a contingent one depending upon obtaining the
 permission ?

¶12

 6. Is the Court below correct in holding that the
 contract was conditional and as there was no
 permission under Section 31, it became void ?

¶13

 7. Is the Court below correct in holding that the
 doctrine of discharge of contract by frustration is
 applicable in the present case as the permission was
 not obtained ? or to hold that performance became
 impossible as the event of getting did not take
 place?

¶14

 2. I have heard the counsel appearing for the parties on
 the said substantial questions of law. The Appellant is the
 Defendant no.1. The Respondent no.1 is the original Plaintiff
 no. 2 and the Respondent no.2 is the Original Plaintiff no.3.
 The Original Plaintiffs filed a suit for perpetual injunction
 on 31st January, 1976 in respect of the suit land. The
 contention raised in the suit is that as loan was advanced by
 the Original Defendants to the Original Plaintiff No.1 and 2
 an agreement for sale was executed by way of security for

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 repayment of loan. After institution of the suit, an
 amendment was carried out for incorporating an averment that
 during the pendency of the suit on 9th March, 1976 the
 Original Plaintiff no. 1 and 2 sold the suit property to the
 Original Plaintiff no.3 by a registered sale deed.

¶17

 3. The Original defendants contested the suit by filing
 written statement. The case made out in the written statement
 is that on 5th November, 1974 an agreement for sale was
 executed by the Original Plantiffs No.1 and 2 in favour of
 defendant no.1 by which it was agreed to sell the suit
 property to the original Defendant no.1. A case is made out
 that total sum of Rs.2,300/- has been paid by the Defendant
 no.1 to the Plaintiffs no.1 and 2 by way of earnest money. It

¶18

 is stated that a joint application was made by the parties to
 the Assistant Collector, Solapur Division, Solapur for grant
 of permission for effecting sale. It is further stated that
 Defendant no.1 was ready and willing to perform his part of
 agreement. A contention is raised that Defendant no.1 was put
 in possession in under a separate possession receipt. A
 counter claim was made for specific performance of the said
 agreement for sale. The said counter claim was resisted by
 the Original Plaintiffs no. 1 and 2 by filing written
 statement.

¶19

 4. It appears that the Plaintiff no.3 filed a pursis
 giving up his claim in the suit and therefore what was decided
 by the Trial court was only the counter claim.

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 5. The learned Trial Court held that the execution of the
 agreement in favour of Defendant no.1/Appellant has been
 established. The learned Judge also held that the case made
 out by the appellant as regards payment of earnest money is
 established. A finding was also recorded that the Appellant
 was ready and willing to perform his part of the agreement.
 However, the learned Trial Judge declined to grant relief of
 specific performance and directed payment of damages. The
 learned Trial Judge held that the application for sale
 permission made on the basis of agreement was rejected and
 therefore, the agreement being in contravention of the
 provisions of the Bombay Prevention of Fragmentation and
 Consolidation of Holdings ACt, 1947 (hereinafter referred to
 as the said Act of 1947) was void. The learned Trial Judge
 held that the contract was contingent contract and as a result
 of refusal of the authorities to grant permission, specific
 performance cannot be granted.

¶22

 6. An Appeal was preferred by the Appellant to the
 District Court. The learned Additional District Judge
 dismissed the Appeal. The learned Judge however upheld the
 contention of the Appellant that there was an agreement of
 sale executed in his favour and that he had established that
 he was ready and willing to perform his part of the agreement.
 During the pendency of the Appeal, the Original Plaintiff No.1
 Bhagirathibai expired and therefore a contention was raised
 that the Appeal stands abated. The said contention was also

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 negatived by the Appellate Court. However decree for specific
 performance was refused on the ground that sale permission was
 refused by the Deputy Collector. He also held that the
 agreement was violative of section 31 of the said Act of 1947.
 Being aggrieved by the Judgments and decrees of the Courts
 below, the Appellant has preferred the Second Appeal.

¶25

 7. The learned Counsel appearing for the Appellant relied
 upon the Judgment of this Court reported in 1980 MH.L.J. page
 547 (Putalabai w/o. Lakhu Pawar and Ors. v. Shiva Dhondi
 Pawar & Ors) and submitted that bar under section 31 of the
 said Act of 1947 is attracted only if the sale is effected of
 land constituting an holding which is allotted under the said
 Act of 1947. She submitted that in the facts of the case, it
 is not established that the suit land was part of the holding
 allotted under the said Act of 1947. She relied upon the said
 Judgment of this court which also holds that the bar created
 by section 31 will not apply if transfer is to an
 agriculturist or an agricultural labourer. She submitted that
 the application for sale permission was refused as the
 Original Plaintiff no.1 and 2 themselves raised an objection
 to the grant of permission. She pointed out that, in any
 event, conditional decree directing the Respondent to obtain
 sale permission and directing execution of sale deed in case
 the permission was granted could have been passed. She
 submitted that though Plaintiff no.1 Bhagirathibai expired
 during the pendency of the Appeal, the Respondent no.2 herein,
 being her son was already on record in capacity as Respondent

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 no.2 and thus estate of Bhagrithabai was represented. She
 submitted that even on the basis of findings recorded by the
 courts below the Appellant was entitled to decree for specific
 performance.

¶28

 8. Shri Kumbhakoni, learned counsel appearing for
 Respondent no.2(a) to 2(c) submitted that deceased
 Bhagirathibai had a daughter. As the said daughter was not
 impleaded as a party, a decree for specific performance cannot
 be passed. The said daughter was having an undivided share in
 the suit land and she was not a party to the proceedings. He
 submitted that though the Appeal may not have abated as one of
 the legal representatives of deceased Bhagirathibai was
 already on record, the daughter of Bhagirathibai was a
 necessary party and without impleading her, a decree for
 specific performance only as regards part of the suit land
 cannot be passed. The said daughter was having an undivided
 share in the suit land and was not a party to the proceedings.
 He submitted that the the Respondent no.2 purchased the suit
 land as he was under a bonafide impression that as permission
 for sale has been refused on the basis of agreement executed
 in favour of the Appellant, the said Agreement had become
 void. He lastly submitted that the Courts below have
 exercised discretion under section 20 of the Specific Relief
 Act, 1963 which cannot be interfered with under section 100 of
 the Code of Civil Procedure, 1908.

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 7. I have considered the rival submissions. The learned

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 Single Judge of this Court in the case of of Putalabai v.
 Shiva Dhondi (supra) held that "It will, therefore be seen
 that in order to attract the bar of this section, the holding
 must have been allotted under this Act. There is nothing in
 the instant case to show that the suit land was a holding
 allotted to the defendants under this Act. On the admitted
 facts the suit land cannot be a holding allotted under the
 Fragmentation Act to the defendants because Lakhu executed a
 sale deed of the suit land to the defendants privately. The
 provision of allotment is laid down in rule 11 of the Rules
 framed under the Fragmentation Act. So all these provisions
 clearly go to show that the suit land is not a holding
 allotted under this ACt and, therefore the bar under section
 31 of the Fragmentation Act cannot be attracted. Both the
 Courts below have proceeded on the assumption that this
 section is applicable and both of them have not taken into
 consideration the wording used in the section and that is why
 both of them have fallen in error". The learned single judge
 further held that "it will therefore be seen that even if the
 land is a holding allotted under this Act, the provisions of
 sub section 3(iii) of section 31, make it clear that the bar
 will not apply if the transfer is to an agriculturist or
 agricultural labourer".

¶32

 8. It is true that in the agreement, there was a
 reference to the permission being obtained from the authority.
 However, no case is made out by Respondent no.2 that the
 appellant was not an agriculturist. Infact in the plaint

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 filed by the Original Plaintiffs, the occupation of Appellant
 is shown as agriculture. No evidence is led to show that the
 suit land was forming a part of a holding which was allotted
 under the provisions of the said Act of 1947. Therefore, the
 ratio of the judgment of this Court in the case of Putalabai
 Lakhu Pawar is squarely applicable.

¶35

 9. It is very clear that the application for permission
 was rejected only on account of the objection raised by the
 Original Plaintiffs nos. 1 and 2. Only because of the said
 objection, the application was rejected. Even assuming that
 permission under section 31 was required to be obtained, there
 is no bar in the provisions of the said Act of 1947 for making
 a fresh application for grant of permission. Therefore relief
 of specific performance could not have been denied only on the
 ground of refusal of the competent authority to grant sale
 permission.

¶36

 10. The Respondent no.2 is the Original Plaintiff no.3 who
 purchased the suit land after the institution of the suit. It
 is necessary to refer to section 19 of the Specific Relief
 Act, 1963 and in particular Clause (b) thereof.

¶37

 "19. Relief against parties and persons claiming
 under them by subsequent title-Except as otherwise
 provided by this Chapter, specific performance of a
 contract may be enforced against -

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 (a) either party thereto;

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 (b) any other person claiming under him by a title
 arising subsequently to the Contract, except a
 transferee for value who has paid his money in good
 faith and without notice of the original contract.
 ............."

¶41

 11. The Court can to enforce specific performance of a
 contract against any person claiming under a party to the
 contract by a title arising subsequent to the contract. Only
 exception is in case of transferee for value who has paid his
 money in good faith and without notice of the original
 contract. The Respondent no.2 has not made out any such case
 in the Trial Court. It is pertinent to note that a contention
 was raised in the Trial Court that Respondent no.2 purchased
 the suit land under a bonafide belief that the earlier

¶42

 contract had become void. From the said contention raised
 before the Trial Court, it is clear that it was not the case
 of Respondent no.2 that he was not aware of the earlier
 contract. The said contention raised by him shows that he was

¶43

 fully aware of the earlier contract. Therefore, the
 Respondent no.2 cannot claim to be a bonafide purchaser
 without notice of the contract between the Appellant and
 Original Plaintiff nos. 1 and 2. Therefore, a decree for
 specific performance can be passed against the Respondent
 no.2.

¶44

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 12. In the Appellate court, a contention was raised on
 behalf of Respondents that the the Appeal has abated as
 daughter of deceased Bhagirathibai was not brought on record.
 The argument in the Appellate Court was that there was an
 abatement of Appeal. No submission was made in the Appellate
 Court that as undivided share of daughter Bhaghirathibai was
 not represented, decree for specific performance could not
 have been passed. However, such contention has been raised
 for the first time in the second Appeal by learned Counsel
 appearing for Respondent no.2. I have, therefore, dealt with
 the said contention. In this connection it will be necessary
 to refer to the Judgment of the Apex Court reported in A.I.R.
 1965 S.C. page 1049 (Daya Ram and Ors vs. Sundari and Ors).
 In paragraph 11 of the judgment the Apex Court quoted with
 approval a decision of Madras High Court reported in ILR 26
 Madras page 230 (Kadir Mohideen v/s. Muthu Krishna). The
 Apex Court relied upon the following observation in the
 decision of Madras High Court " in case where the person whom
 the plaintiff alleges to be the legal representative of the
 deceased defendant and whose name the Court enters on the
 record in the place of such defendant sufficiently represents
 the estate of the deceased for the purposes of the suit and in
 the absence of any fraud or collusion the decree passed in
 such suit will bind such estate....If this were not the law,
 it would, in no few cases, be practically impossible to secure
 a complete representation of a party dying pending a suit and
 it would be specially so in the case of Muhammadan party and
 there can be no hardship in a provision of law by which a

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 party dying during the pendency of a suit, is fully
 represented for the purpose of the suit, but only for that
 purpose, by a person whose name is entered on the record in
 place of the deceased party under Sections 365, 367 and 368 of
 the Civil Procedure Code, though such person may be only one
 of several legal representatives or may not be the true legal
 representative". The Apex Court further observed that "This,
 in our opinion, correctly represents the law."

¶48

 13. After considering the law on the point the Apex Court
 in a Judgment reported in 1994 supp (3) SCC page 675
 (Chaudhary Ram v/s. State of Haryana) held that the object of
 bringing legal representatives on record under Order 22 Rule 4
 is to have the estate of the deceased represented. In the
 facts of the case before the Apex Court it ‘ was held that it
 was not necessary that all the legal representatives should
 necessarily be brought on record. In the facts of the case
 before the Apex Court, two sons and a daughter of deceased
 were already on record. The Apex Court held that the omission
 to bring other legal representatives namely the other sons and
 daughters was not fatal.

¶49

 14. If paragraph 10 and 20 of the Judgement of the
 Appellate Court are perused the only contention raised by
 Respondent No.2 appears to be that as all the legal
 representatives of the deceased Bhagirathibai were not brought
 on record, the Appeal stands abated. It was not the
 contention of Respondent no.2 that the Original Plaintiff no.2

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 i.e the son of Bhagirathibai cannot alone represent the estate
 of Bhaghirathibai. It was not the contention of Respondent
 no.2 that there was any fraud or collusion as a result of
 which the daughter of Bhagirathibai was not bmpleaded as a
 party. If such contention would have been raised, the
 Appellant would have taken steps to implead the daughter of
 Bhagirathibai as party. This is one aspect of the matter.
 Another important aspect is that Bhagirathibai and her son
 Plantiff no.2 had admittedly sold the suit property in favour
 of the Respondent no.2 during the pendency of the suit. As
 held earlier the decree for specific performance can be passed
 against the Purchaser Respondent no.2 in view of Section 19(b)
 of the said Act of 1963. If this be the position, even
 accepting the case of the Original Plaintiffs, all the right,
 title and interest of Bhagirathibai during her lifetime stood
 transferred in favour of Respondent no.2. On this count also
 failure to implead the daughter of Bhagirathibai cannot be
 held to be fatal to the case of the Appellant.

¶52

 15. The Judgments of both the Courts below do not show
 that discretion under Section 20 of the said Act of 1963 was
 exercised by the Courts below after considering factors which
 are relevant for the exercise of such discretion. Specific
 performance of a contract is an equitable relief and therefore
 consideration of equity was necessary while exercising power
 under section 20. In view of the findings recorded, it is
 very clear that the equity was in favour of the Appellant.

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 16. In the circumstances, the Appeal must succeed. Hence,

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 I pass the following order.

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 (a) The impugned Judgments and decrees are quashed
 and set aside.

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 (b) The counter claim filed by the Appellant in
 Regular Civil Suit No. 52 of 1976 stands decreed with
 costs throughout.

¶58

 (c) The Appellant is directed to deposit the
 balance consideration payable under the suit agreement
 in the Trial Court within a period of 3 months from
 today.

¶59

 (d) If the balance consideration is deposited in
 the Trial Court within the stipulated time, the
 Respondents will execute a conveyance in respect of
 the suit property in favour of the Appellant.

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 (e) In the event the Respondents fail to execute

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 the conveyance, the Appellant can execute the decree
 for specific performance by filing execution
 Application.

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 (f) If the Appellants fail to pay the balance
 consideration within the stipulated time, the prayer
 for specific performance will stand dismissed and in

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 such event, there will be a decree against the
 Respondent no.1 for payment of Rs.2300/- to the
 Appellant together with interest thereon at the rate
 of 6% per annum from 5th January, 1976 till

¶65

 realisation.

¶66

 . C.C. expedited.

¶67

 SD/-

¶68

JUDGE

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶71

 APPELLATE SIDE JURISDICTION

¶72

 SECOND APPEAL NO. 260 OF 1988

¶73

 DATE OF JUDGEMENT: 17TH AUGUST, 2004

¶74

FOR APPROVAL OF

¶75

HON’BLE SHRI. JUSTICE ABHAY S. OKA :

¶76

 1. Whether Reporters of local
 papers may be allowed to see
 the judgment? -no.

¶77

 2. Whether to be referred to the
 Reporters or not?

¶78

 3. Whether the lordship wish to see
 the fair copy of the judgment?

¶79

 4. Whether this case involves a
 substantial question of law as
 to the interpretation of the
 Constitution of India, 1950, or
 any order made thereunder?

¶80

5. Whether it is to be circulated to all the Civil Judges?

¶81

6. Whether the case involves an important question of law and whether the copy of the judgment should be sent to Nagpur, Aurangabad and Goa Offices?

¶82

¶83

 *******

Vasudeo Vitthal Relekar v. Arunsidhayya Jangam and Ors.

Case brief

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Vasudeo Vitthal Relekar v. Arunsidhayya Jangam and Ors.

Case brief

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