The right to specific performance is not a vested right and is subject to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.

Headnote:
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT - SECTIONS 63 AND 64 - SPECIFIC PERFORMANCE - APPLICABILITY - RIGHT TO SPECIFIC PERFORMANCE - SECTION 89(2) - INTERPRETATION - DECREE FOR SPECIFIC PERFORMANCE - VALIDITY.
Fact of the Case:

Plaintiffs and defendants 2 to 5 entered into an agreement for the sale of land. The plaintiffs paid a deposit and agreed to pay the balance within a month. Before the balance could be paid, the first defendant sold the land to defendants 2 to 5, who had notice of the agreement. The plaintiffs sued for specific performance of the agreement. The trial court held that the defendants were not bona fide purchasers without notice, that the balance of the consideration was not payable at Kolhapur, and that the plaintiffs were entitled to specific performance. The defendants appealed.
Finding of the Court:

The Bombay Tenancy and Agricultural Lands Act, 1948 (the Act) was made applicable to the area in which the land was situated after the agreement was entered into but before the suit was filed. The Act prohibited the sale of agricultural land to non-agriculturists. The plaintiffs were non-agriculturists. The court held that the sale to the defendants was void under Section 63 of the Act and that the plaintiffs were not entitled to specific performance of the agreement.
Issues: 1. Whether the Bombay Tenancy and Agricultural Lands Act, 1948 applied to the suit. 2. Whether the sale to the defendants was void under Section 63 of the Act. 3. Whether the plaintiffs were entitled to specific performance of the agreement.
Ratio Decidendi: 1. Section 89(2) of the Act preserved rights, titles, interests, obligations, or liabilities acquired, accrued, or incurred before the commencement of the Act. However, the right to specific performance is not a vested right. It is a discretionary remedy that the court may or may not grant. 2. Section 63 of the Act prohibited the sale of agricultural land to non-agriculturists. The sale to the defendants was in contravention of this provision and was therefore void. 3. The plaintiffs were not entitled to specific performance of the agreement because the sale to the defendants was void.
Final Decision: The court set aside the decree of the trial court and remanded the case for a determination of whether the plaintiffs were agriculturists within the meaning of the Act and whether the agreement of sale was valid. If the agreement was not capable of being specifically enforced, the court was to ascertain the amount of damages payable by the first defendant to the plaintiffs.

Judgment

1. Survey No. 47 of Shiwara Taluka, Shahuwadi, in the former Kolhapur State originally belonged to Ramchandra Balvant Shirolkar who will hereafter be referred to as the first defendant. The first defendant agreed to sell the land for Rs. 6,300/- to the plaintiffs by agreement, dated 10-12-1945. The plaintiffs paid Rs. 300/- as earnest and agreed to pay the balance within a month from the date of the agreement.

On 30-1-1946 the first defendant sold the land for Rs. 6,000/- to defendants 2 and 5. The plaintiffs then filed Special Civil Suit No. 1 of 1946 in the Court of Shrimant Himmat Bahadur, F. C. Sub-Judge against defendants 1 to 5 for a decree for specific performance of the agreement, dated 10-12-1945. The plaintiffs alleged in the plaint that they had offered to pay the balance due by them within the time stipulated but the first defendant refused to accept the same and that the first defendant sold the property to defendants 2 to 5 who had notice of the agreement of sale.

The learned "trial Judge on a consideration of the evidence held that defendants 2 to 5 were not "bona fide purchasers without notice of the agreement, dated 10-12-1945," that the balance of the consideration of Rs. 6000/- payable by the plaintiffs to the first defendant under that agreement was not payable at Kolhapur and the plaintiffs did not fail to pay the amount within the stipulated period and that the plaintiffs were entitled to enforce specific performance of the agreement.

On 26-7-1950, the learned Civil Judge Senior Division, at Kolhapur passed a decree for specific performance of the agreement against the first defendant and also passed a decree in favour of the plaintiffs in ejectment against defendants 1 to 5. Against that decree defendants 2 to 5 have appealed to this Court.

2. The suit was originally filed on 19-2-1946, in the Court of Shrimant Himmat Bahadur. During the pendency of the suit the Kolhapur State merged with the Indian Union and the jurisdiction which was exercised by the Court of Shri Himmat Bahadur devolved upon the Court of the Civil Judge, Senior Division, Kolhapur. The suit was then renumbered as Suit No. 191 of 1949 and was tried by the Civil Judge, Senior Division.

The Bombay Tenancy and Agricultural Lands Act, 1S43, was made applicable to the former Kolhapur State territory as from 1-5-1949. It was contended before the learned trial Judge that the Bombay Tenancy and Agricultural Lands Act having been made applicable to the land in dispute, a decree for specific performance of the agreement could not be passed in view of the provisions of Sections 63 and 64 of that Act. The learned trial Judge was of the opinion, having regard to Section 89 (2) (b) (ii) of the Act, that the rights acquired by the plaintiffs under the agreement as also the jurisdiction of the Civil Court to decide the suit were preserved notwithstanding the enactment of the Bombay Tenancy and Agricultural Lands Act.

It was also urged before the learned trial Judge that the second defendant was a protected tenant of the suit land and was entitled to apply to the Tenancy Court for a declaration that he could not be evicted in execution of a decree of the Civil Court. The plaintiffs conceded that liberty in that behalf may be reserved in the decree. The learned Judge, therefore, by his decree provided that if the second defendant made an application to the Tenancy Court-concerned that he was not liable to be evicted from the suit land, the plaintiffs will not execute the decree for possession and in a manner inconsistent with the final result of the application.

3. In this appeal filed by defendants 2 to 5 only one contention is advanced in support of the appeal. It is urged that since the application of the Bombay Tenancy and Agricultural Lands Act to the land in dispute the Court could not pass a decree for specific performance in violation of the terms of Ss. 63 and 64 of the Act. In our view, that contention must be accepted.

Section 63, Bombay Tenan

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