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2008(4) ALL MR 529
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C. L. PANGARKAR, J.
Krishna s/o. Sadashiv Kale & Ors. - Appellant
Vs.
Bhagwan Natthu Kale & Anr. – Respondent
Second Appeal No.121 of 1999
Decided on : 2nd May, 2008.
Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Section 89-Specific Relief Act, 1963, Section 9-A decree for specific performance was set aside by the Appellate Court-Aggrieved by order preferred Appeal-The question that can the specific performance of contract of sale be made without complying Section 89 for purchase of agricultural land, arose.-If the law does not prohibit entering into the contract then there is really no reason not to enforce such contract. Granting of decree does not mean that the sale-deed will necessarily be executed. The plaintiff would always carry the risk of frustration if the competent authority does not grant permission. It the plaintiff is ready to have a decree for specific performance and wait for such permission being granted or refused, there is no law which comes in the way.
The Judge of the first Appellate Court has found that the application for permission was dismissed for default and therefore, the decree could not be granted in favour of the plaintiff. The law is that there is no impediment in passing a decree. Even if a decree would have been passed, that would have been and could have been executed on production of certificate or permission only. Since the initial application was dismissed for default, it cannot be said that the permission was rejected. The plaintiff was entitled to apply again or get the application restored.
Specific Relief Act, 1963 - Section 10-Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, Section 89-Contract of sale-Specific performance of-Decree for-Permission under Section 89 of Bombay Tenancy Act for-Obtaining of permission not pre-requisite condition for passing decree.-The lack of permission could not be an impediment in issuing a decree for specific performance.
BOMBAY TENANCY AND AGRICULTURAL LANDS (VIDARBHA REGION) ACT, 1950 - Section 89 - Sale of property - Non-performance of contract - Seller accepted earnest money - Plaintiff ready to execute sale-deed and pay balance a mount - Defendant avoided him to execu te sale deed - Issue of notice by plaintiff for execution - During pendency of suit defendant died - His legal representatives brought on record - Defendant denied to entered into agreement to sale - Thumb impression obtained on pretext to take assistance from Government - Pointed out plaintiff is not agriculturist not entitled purchase suit property. - The Judge of the trial Court found that Raghoba-the deceased defendant had agreed to sell the land to the plaintiff. He was the absolute owner thereof. The plaintiff was ready and willing to perform his part of the contract and that he was entitled to a decree for specific performa nce. He also directed the plaintiff to apply to competent authority for permission under Section 89 of the Bombay Tenancy and Agricultural Lands Act, 1958 and upon getting permission to deposit the amount and directed the defendant to execute the sale deed. Being aggrieved by this judgment and decree, the defendant preferred the appeal.
BOMBAY TENANCY AND AGRICULTURAL LANDS (VIDARBHA REGION) ACT, 1950 - Section 89 - Specific Relief Act, 1963, Section 9 - A decree for specific performance was set aside by the Appellate Court - Aggrieved by order preferred Appeal - The question that can the specific performance of contract of sale be made without complying Section 89 for purchase of agricultural land, arose. - If the law does not prohibit entering into the contract then there is really no reason not to enforce such contract. Granting of decree does not mean that the sale-deed will necessarily be executed. The plaintiff would always carry the risk of frustration if the competent authority does not grant permission. It the plaintiff is ready to have a decree for specific performance and wait for such permission being granted or refused, there is no law which comes in the way.
The Judge of the first Appellate Court has found that the application for permission was dismissed for default and therefore, the decree could not be granted in favour of the plaintiff. The law is that there is no impediment in passing a decree. Even if a decree would have been passed, that would have been and could have been executed on production of certificate or permission only. Since the initial application was dismissed for default, it cannot be said that the permission was rejected. The plaintiff was entitled to apply again or get the application restored.
2. The facts giving rise to this appeal are as follows -
The plaintiffs and defendants are resident of Shivangaon. The defendant owns and possesses Khasra No.95 and 97 of Shivangaon. Original defendant Raghoji was the owner of the suit property. He was an old man. He did not either have a wife or the children. He was, due to old age, unable to cultivate the land personally. He was, therefore, unable to derive enough income from the fields. He, therefore, wanted to sell the suit property. He therefore entered into an agreement of sale of two fields in favour of the plaintiff for consideration of Rs.16,000/-. The plaintiffs paid Rs.5.000/- to the defendants towards earnest. The sale deed was agreed to be executed on 20/2/1982. The plaintiff submits that he was always ready and willing to take the sale-deed and to pay the balance of the consideration. The plaintiff on 15/1/1982 and 19/1/1982 approached the defendant with a request to execute the sale deed. The defendant, however, avoided to execute the sale-deed. The plaintiff. Therefore, issued notice to the defendant calling upon him to execute the sale-deed. The defendant failed. During the pendency of the suit original defendant Ragho died. His legal representative who is his real brother was brought on record. Defendant no.2 after the death of Ragho took the possession of the suit property and got his name mutated. Defendant no.2 is the son of deceased Ragho's sister. The plaintiff learnt that Ragho had executed a Will in favour of defendant no.2 but, according to the plaintiff, the said Will is invalid and is a bogus document. The plaintiff. therefore, sought a decree for specific performance of the contract or in the alternative for the refund of the earnest money.
3. The original defendant had filed his written statement. He admits that he does not have a family but submits that Bhagwan Kale who is his nephew takes care of him and he treats him as his son. He denied that he has entered into an agreement of sale of field with anybody and he has received consideration of Rs.5,000/-. The defendant submits that he and the plaintiff are related to each other. On 30/12/1981. the plaintiff's son came to the house of the defendant and compelled him to come to the plaintiff's house which adjoins the defendant's house. One Bakaram, Pandurang and Govindrao were already sitting there on the pretext that some assistance is to be taken from the Government for providing financial assistance to the defendant and for this his thumb impression was required. The plaintiff obtained the thumb impression of the defendant. The defendant being illiterate and old man could not see through the game of plaintiff. The notice given by the plaintiff was false. The plaintiffis not an agriculturist and is, therefore, not entitled to purchase the suit property.
4. Defendant no. 1 Vithoba filed his written statement and contended that the suit property was the joint family property of Ragho and himself. Ragho had no right to sell the suit property. He is the owner of the suit property being only heir.
5. Defendant no.2 also filed written statement and contended that deceased Ragho has executed a Will in his favour and he has become the owner.
6. The learned Judge of the Trial court found that Raghoba - the deceased defendant had agreed to sell the land to the plaintiff. He was the absolute owner thereof. The plaintiff was ready and willing to perform his part of the contract and that he was entitled to a decree for specific performance. He also directed the plaintiff to apply to competent authority for permission under Section 89 of the Bombay Tenancy and Agricultural Lands Act. 1958 and upon getting permission to deposit the amount and directed the defendant to execute the sale-deed. Being aggrieved by this judgment and decree, the defendant preferred the appeal.
7. The lear
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