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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

SECOND APPEAL NO.15 OF 2020

[Baburao s/o Wasudeo Podey and one .vs. Bhaurao s/o Tukaram Bodhe and others]

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Office Notes, Office Memoranda of Coram,

Court'

s or Judge'

s orders

appearances, Court'

s orders of directions

and Registrar'

s orders.

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CORAM : MADHAV J. JAMDAR, J.

DATED : 11.03.2020

.

1]

Shri Rohit Joshi, learned advocate appearing on

behalf of the appellants, contended that there are two

substantial questions of law involved in the present second

appeal; first is for getting benefit of Section 53A of the

Transfer of Property Act, 1882 (hereinafter referred to as

‘the Act’), the party has to show that he is ready and willing

to perform his part of the contract and that the agreement

by which the appellants’ father agreed to sale the land to the

father of the respondents is illegal, null and void, as there is

nothing on record to show that the respondents’ father was

an agriculturist and transfer to non-agriculturist is barred

under Section 89 of the Bombay Tenancy and Agricultural

Lands (Vidarbha Region) Act, 1958 (hereinafter referred to

as ‘the Tenancy Act’).

2]

In the light of above substantial questions, as

argued by the learned advocate for the appellants, the

factual position on record shows that on 5.9.1969 Wasudeo

Rajeshwar Podey i.e. father of the appellants agreed to sell

the suit land to Tukaram Krushnaji Bodhe i.e. father of the

respondents for a price of Rs.5,000/- and out of that

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Rs.4,500/- was paid and possession of the suit land was

handed over to said Tukaram Krushnaji Bodhe. It is

specifically mentioned in the agreement that said Wasudeo

Rajeshwar Bodhe i.e. the vendor will apply to the Collector

seeking permission and that the balance amount of Rs.500/-

is to be paid at the time of execution of sale deed and

registration of the same. Admittedly, said Wasudeo

Rajeshwar Bodhe has not filed any application seeking

permission to the Collector and, therefore, there was no

question of further payment of Rs.500/- to said Wasudeo

Rajeshwar Bodhe.

3]

The learned advocate of the appellants has relied

on certain judgments to contend that to claim protection

under Section 53-A of the said Act, it is for the transfree to

take steps either by sending notices or requesting the seller

to comply with the terms and conditions which are his part

of the contract. He has relied on the judgment of the

Madhya Pradesh High Court, reported in 2010 (3) M.P.L.J.

83 in the matter between Harnam Singh s/o Shri Anant and

others .vs. Haricharan s/o Ramprasad Ojha and others. He

also relied on the judgment of the Apex Court reported in

(2007) 14 SCC 87 in the matter between A. Lewis and

another .vs. M.T. Ramamurthy and others, particularly

paragraph 11 of the said judgment. The said paragraph 11

is reproduced herein below for ready reference.

“11. As rightly pointed out by the High Court,

the existence of right to claim protection under

Section 53-A of the Transfer of Property Act

would not be available if the transferee just kept

quiet and remained passive without taking

effective steps. Further, he must also perform

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his part of the contract and convey his

willingness. On the other hand, the factual

finding is that there was no intimation by

defendant Nos.3 and 4 to perform their part of

contract to claim protection of Section 53-A of

the Transfer of Property Act. Likewise, as rightly

concluded by the courts below, there is no

material to show that the plaintiff had notice of

agreement of sale Ext.D-1 in favour of

defendant Nos.3 and 4. The conclusion of the

High Court that defendant Nos. 3 and 4 or even

d