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IN THE HIGH COURT OF BOMBAY
J.G. Chitre, J.
Abdul Dadamiya Shaikh .... Appellant.
Versus
Jagannath Murlidhar Rathi since deceased, through
his heirs Vijay Jagannath Rathi others.... Respondents.
Second Appeal No. 502 of 1988, decided on 6-3-2002.
Advocates appeared :
G.R. Rege with Mrs. Mudbidri, for appellant.
R.D. Soni, for respondent Nos. 1(A), 1(B), 1(C) 1(E).
land and it ended in a notice being served on Abdul in the year, 1980 directing him to hand over the possession of the suit land to Jagannath Murlidhar Rathi and that resulted in filing of the suit. Shri Rege has submitted that in the year, 1980, vendor Jagannath Murlidhar Rathi had acquired the ownership of the suit land and, therefore, he was having the capacity to perform that agreement and, therefore, he would be estopped by rule of estoppel and in view of provisions of Section 43 of the T.P. Act. The Court does not uphold this submission advanced by Shri Rege because the important ingredients which have been embodied in provisions of Section 43 are lacking firstly in indicating the fraudulent representation by such vendor and secondly in indicating the erroneous representation made by the vendor. When the evidence does not establish that vendor had made a fraudulent representation or had made an erroneous representation, he cannot be estopped from disowning the obligation indicated by the agreement in dispute in view of provisions of Section 43 of the Act. The restriction imposed by provisions of Section 43 of the T.P. Act is pivotally dependent on these two important ingredients of Section 43. If they are lacking, there would be no fetters of estoppel against such vendors if the litigant attempts to take the shelter of the provisions of Section 43 of the T.P. Act. When the Court finds that the agreement is a mischievous one, cleverly drafted, cleverly brought into existence for the purpose of defeating the provisions of law, in such suit specific performance has to be rejected. Citizens cannot be encouraged for going for mischievous agreement the performance of which is to get away from the natural consequences of legal provisions. In this case, first agreement was brought in existence when a proceeding was in continuation in Revenue Court in view of provisions of Section 32-G. In addition to that, the attempt was made to give a go by to the provisions of Ceiling Act. The lingering intention was to safeguard the interest by saving oneself from the legal consequences of the provisions of the Ceiling Act and last straw on the back of the camel was the service of the notice by which the appellant was directed to hand over the possession to deceased Jagannath Murlidhar Rathi as a result of the proceedings which were initiated in view of provisions of Section 32-P of the Act. When all these things were lacking, the Court should not legitimately grant any prayer for specific performance in favour of the plaintiffs. Though the two Courts below have not given the reasons in justifying their conclusion leading them to final decision of dismissal of the suit, the final verdict of the Courts below recorded by two judgments and orders is indicating the same final effect
Trade and Merchandise Marks Act, 1958 - Section 43 - Sale of tenancy land - Agreement sought by landlord - Proceedings already pending under Sections 32-G and 32-P of Bombay Tenancy Act - Allegation that landlord was trying for agreement illegally - Held - As both the parties were well aware of pending cases in Revenue Courts there was no scope for Section 43 of T.P. Act - There was no representation by landlord which could cheat or mislead purchaser - Hence there was no right to seek specific relief or discretionary relief. - The view taken by the Court in this context is strengthened by the view taken by the Patna High Court Division Bench in Ladu Narain Singh v. Goberdhan Das and others reported in AIR 1925 Patna 470, wherein the Division Bench of the Patna High Court held that there is rule of law which underlines Section 43 of the Transfer of Property Act that as between the transferor and transferee, the former cannot plead subsequent title to the property transferred, he had induced the transferee to pay money for the transfer. The principle on which this rule is based is an extension of the well-known rule of estoppel, and in order that the rule should apply it must be established that there was a representation made by transferor which was believed by the transferee and that the latter relying on the truth of that representation changed his position to his detriment. The rule is not applicable where it is shown that there was no representation made by the transferor or that the transferee could not have been misled by any representation. When the Court finds that the agreement is a mischievous one, cleverly drafted, cleverly brought into existence for the purpose of defeating the provisions of law, in such suit specific performance has to be rejected. Citizens cannot be encouraged for going for mischievous agreement the performance of which is to get away from the natural consequences of legal provisions. In this case, first agreement was brought in existence when a proceeding was in continuation in Revenue Court in view of provisions of Section 32-G. In addition to that, the attempt was made to give a go by to the provisions of Ceiling Act. The lingering intention was to safeguard the interest by saving oneself from the legal consequences of the provisions of the Ceiling Act and last straw on the back of the camel was the service of the notice by which the appellant was directed to hand over the possession to deceased Jagannath Murlidhar Rathi as a result of the proceedings which were initiated in view of provisions of Section 32-P of the Act. When all these things were lacking, the Court should not legitimately grant any prayer for specific performance in favour of the plaintiffs. Though the two Courts below have not given the reasons in justifying their conclusion leading them to final decision of dismissal of the suit, the final verdict of the Courts below recorded by two judgments and orders is indicating the same final effect.
Specific Relief Act, 1963 - Sections 16-C and 20 - Specific performance of agreement of sale - Of tenancy land by landlord - Proceedings under Sections 32-G and 32-P of Tenancy Act pending - Landlord alleged to have initiated proceedings irregularly - Held, both the parties were well aware of fact that proceeding under Tenancy Act were pending - Hence it was not a case under Section 43 of T.P. Act - No right generated to demand specific relief - Nor any case to grant any relief. - Though it is true in this case, that after the said proceedings initiated in view of provisions of Section 32-G was over, the proceedings started in view of provisions of Section 32-G of the Act and that ended in Jagannath Murlidhar Rathi getting the ownership of the said land and it ended in a notice being served on Abdul in the year 1980 directing him
to hand over the possession of the suit land to Jagannath Murlidhar Rathi and that resulted in filing of the suit. Shri Rege has submitted that in the year 1980, vendor Jagannath Murlidhar Rathi had acquired the ownership of the suit land and, therefore, he was having the capacity to perform that agreement and, therefore, he would be estopped by rule of estoppel and in view of provisions of Section 43 of T.P. Act. The Court does not uphold this submission advanced by Shri Rege because the important ingredients which have been embodied in provisions of Section 43 are lacking firstly in indicating the fraudulent representation by such vendor and secondly in indicating the erroneous representation made by the vendor. When the evidence does not establish that vendor had made a fraudulent representation or had made an erroneous representation, he cannot be estopped from disowning the obligation indicated by the agreement in dispute in view of provisions of Section 43 of the Act. The restriction imposed by provisions of Section 43 of the T.P. Act is pivotally dependent on these two important ingredients of Section 43. If they are lacking, there would be no fetters of estoppel against such vendors if the litigant attempts to take the shelter of the provisions of Section 43 of the T.P. Act.When the Court finds that the agreement is a mischievous one, cleverly drafted, cleverly brought into existence for the purpose of defeating the provisions of law, in such suit specific performance has to be rejected. Citizens cannot be encouraged for going for mischievous agreement the performance of which is to get away from the natural consequences of legal provisions. In this case, first agreement was brought in existence when a proceeding was in continuation in Revenue Court in view of provisions of Section 32-G. In addition to that, the attempt was made to give a go by to the provisions of Ceiling Act. The lingering intention was to safeguard the interest by saving oneself from the legal consequences of the provisions of the Ceiling Act and last straw on the back of the camel was the service of the notice by which the appellant was directed to hand over the possession to deceased Jagannath Murlidhar Rathi as a result of the proceedings which were initiated in view of provisions of Section 32-P of the Act. When all these things were lacking, the Court should not legitimately grant any prayer for specific performance in favour of the plaintiffs. Though the two Courts below have not given the reasons in justifying their conclusion leading them to final decision of dismissal of the suit, the final verdict of the Courts below recorded by two judgments and orders is indicating the same final effec
(1) "Whether having held that the appellant-plaintiff had become purchaser under section 32 of the Tenancy Act, the courts below ought to have held that proceedings under section 32-G and 32-P of the Bombay Tenancy Act were void ab initio when the findings recorded clearly indicate that Dadamiya the father of the plaintiff did not hold land above the ceiling limits?"
(2) "Whether the courts below wrongly relied upon section 56 of the Indian Contract Act to hold that was an impossibility of performance of contract as the land was in excess of the ceiling limit, the specific performance of which was asked for. It is not open to the respondents to deny the specific performance of valid agreement and if on such performance the plaintiff held land in excess of ceiling, it is for the Government to take excess land and the respondents will have no authority in that behalf."
While admitting the appeal for final hearing on 10-10-1988, the Court had pointed out that substantial questions of law are embodied in above mentioned ground Nos. 7 and 8 as they have been quoted.
2. Mr. Rege, Counsel appearing for the appellant submitted that there was no substance in the challenge put by the appellant in respect of challenge put to the validity of the proceedings initiated under provisions of sections 32-G and 32-P of the Bombay Tenancy and Agricultural Lands Act; 1948 (hereinafter referred to as Act for convenience) which has been covered by the ground mentioned at Sr. No. 7 of the appeal memo. Therefore, according to him, when the original defendant Jagannath Murlidhar Rathi has become the owner of the suit land by virtue of the proceedings initiated in view of provisions of sections 32-G and 32-P of the Act, he had the authority to sell the land in question to the appellant by virtue of the agreement in question. But the courts below dismissed the suit by holding that the original plaintiff-the appellant, was not entitled to have the decree for specific performance by virtue of the said agreement which took place between them on 6-6-1962.
3. In view of the submissions advanced as quoted above by Counsel for the appellant Shri Rege, the entire record will have to be seen in context with the judgments and orders passed by the two courts below. For that purpose, some facts will have to be quoted which would be giving the idea of the controversy in issue. The original defendant Jagannath Murlidhar Rathi who is being represented by his L.Rs. was owner of the suit land bearing Gat No. 74 admeasuring 1 hecter and 15 ares situated in village Nandur Madhmeshvar, Taluka Niphad. The father of the present plaintiff-appellant named Dadamiya was the tenant of the said land prior to 1-4-1957 (tillers day). There was an agreement between the deceased Jagannath Murlidhar Rathi and deceased Dadamiya dated 23-3-1956. By virtue of that agreement, deceased Jagannath Murlidhar Rathi had agreed to sell that land to Dadamiya and it was agreed between them that the deceased Jagannath Murlidhar Rathi was to obtain permission for sale of the said land to Dadamiya. At that time, there was a proceeding pending before the Mamlatdar and A.L.T. in view of provisions of section 32-G in respect of the said land as after the Act came in force Dadamiya acquired the status of "deemed purchaser". However, the original plaintiff averred that Dadamiya was confined to be in bed and, therefore, sale could not take place. It did not take place finally because Dadamiya died in the year 1962. After the death of Dadamiya, the present plaintiff entered into an agreement with deceased Jagannath Murlidhar Rathi on 6-6-1962 for the sale of the same land and even at that time also the proceedings in view of section 32-G of the Act were in continuation before the Mamlatdar and A.L.T., Niphad. In the said agreement it was agreed that the said land was to be sold by the deceased Jagannath Murl
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