KUBERDAS HARGOVINDDAS INAMDAR Vs. LILARAM CHIBHADMAL

JUDGEMENT

(1.) This appeal raises an interesting question as to whether the non agriculturist purchaser is entitled to the refund of the price in case the sale of the land in question is held to be invalid by the competent authority under the Tenancy Act as violating secs. 63 and 64 of that Act. Both the Inamdar as well as the tenant on the land had passed an agreement of sale of the land in question in favour of this non agriculturist purchaser plaintiff on September 7 1957 and thereafter two separate sale deeds were registered on September 27 1957 by which both the Inamdar and the tenant sold their interest to this plaintiff non agriculturist. Even the possession of the land was handed over to the plaintiff purchaser in pursuance to the registered deed. The Mamlatdar however under sec. 84 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) held the said sale as invalid and an order forfeiting both the land and the purchase price had been passed. Ultimately when the matter went to the Revenue Tribunal in view of the binding decision in Kuberdas v. State of Bombay 61 B.L.R. 1276 the order forfeiting the purchase price was set aside while the rest of the Mamlatdar's order under sec 84C was maintained. Thus the land has been forfeited by the State. That is why the purchaser plaintiff has filed the present suit for recovery of the price which was paid to this defendant Inamdar in the present suit. We are not concerned with the other suit for refund of price by the tenant. The trial Court had dismissed the snit on the ground that the restitution had become impossible as the land was forfeited to the State while the lower appellate Court having decreed the claim the defendant Inamdar has filed this appeal.

(2.) Sec. 63(1) of the Act provides that save as provided in the Act no sale including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue gift etc. shall b. valid in favour of a person who is not an agriculturist.....Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale gift etc. on such conditions as may be prescribed. Sec. 64(1) of the Act provides that where a landlord intends to sell any land the shall apply to the Tribunal for determining the reasonable price thereof in accordance with the provisions of sec. 63A. After the Tribunal has determined the reasonable price the landlord shall simultaneously in the prescribed manner make an offer

(3.) Mr. Patel however has raised various questions of law by urging that these were mere observations that the purchaser was entitled to refund of this consideration amount when the sale was held to be invalid. Mr. Patel vehemently argued that the Division Bench had considered the scheme of sec. 64 as a prohibition against the occupant and not against the purchaser. In the present case the sale has been held to violate both sec. 63 and 64. Even sec. 63(1) hits the sale only by making it an invalid sale in favour of a person who is not an agriculturist. In fact the proviso enacts that this is a limited incapacity because the Collectors permission would have taken out the sale from the scope of this wide embargo. Therefore there is no prohibition even under sec. 63 or sec. 64 against a purchaser. Therefore when the sale is declared invalid the purchaser would be entitled to the refund of the consideration as held by the Division Bench.