BALU BABURAO ZAROLE Vs. SHAIKH AKBAR SHAIKH BHIKAN

JUDGEMENT

(1.) IN the first of these two companion Second Appeals (S. A. 615/2000), the suit for specific performance has been decreed and the judgment of the trial Court has been affirmed in appeal. The Original First Defendant, whose heirs are the appellants, became a deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and the purchase price was fixed at Rs. 20,032/ -. The first defendant was a tenant in respect of Survey Nos. 216 and 217. On 30th November, 1974, an agreement to sell was entered into by the first defendant with the plaintiff, by which the plaintiff made the entire payment towards the purchase price of Survey Nos. 216 and 217 on behalf of the First Defendant. The first defendant agreed to sell Survey No. 216 to the plaintiff.

(2.) THE trial Court decreed the suit holding that the agreement to sell was duly proved and that the plaintiff who had paid the entire consideration had established his readiness and willingness to perform the contract. The trial Court held that the plaintiff was entitled to specific performance of the contract subject to the sanction by the Collector under section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. The trial Court held that in the event of the Collector not granting sanction, the plaintiff would be entitled to a refund of the amount of Rs. 20,000/- paid by him together with interest at 12% per annum from the date of the institution of the suit. The Appellate Court has affirmed the judgment of the trial Court. The Appellate Court has held that possession was given to the plaintiff. The plaintiff had paid the entire purchase price and had also deposited the land revenue in respect of the land. Nothing further remained to be done by him and the readiness and willingness of the plaintiff has been established on the evidence before the courts below. These findings of the Appellate Court do not suffer from any infirmity. They are based on the evidence on the record and do not call for any interference in a Second Appeal.

(3.) SECTION 43 of the Act provides, in so far as is material that no land purchased by a tenant inter alia under section 32 "shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector". The requirement of taking the previous sanction of the Collector would apply to a transfer by sale or by any of the other modes specified therein. In so far as the requirement of taking the sanction of the Collector under the provisions of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 is concerned, the trial Court and the Appellate Court correctly held that the decree for specific performance would be subject to the condition of the sanction being obtained to the sale from the Collector under section 43. In the event of the Collector not granting sanction, the plaintiff would be entitled to a refund of the purchase price together with interest only as, in the absence of sanction under section 43 the sale cannot be concluded. In taking this view, no error has been committed by the trial Court and by the Appellate Court. In (Nathulal v. Phoolchand), reported in A. I. R. 1970 S. C. 546, a Bench of the Supreme Court, consisting of Mr. Justice J. C. Shah (as the Learned Chief Justice then was) and Mr. Justice K. S. Hegde held that where by a statute property is not transferable without the permission of an authority, an agreement to transfer the property must be deemed to be subject to the implied condition that the transferor will obtain the sanction of the authority concerned. While laying down the aforesaid proposition in paragraph 5 of its judgment, the Supreme Court referred to the judgment of the Privy Council in (A. I. R. 1930 P. C. 187) and the judgment of the Supreme Court in (Chandnee Widya Vati Madden v. Dr. C. L. Katial), A. I. R. 1964 S. C. 978.