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 appellateCourt. In Nathulal v. Phoolchand , 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 the 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 AIR 1930 PC 187 and the judgment of the Supreme Court in .
4. Section 43 of the Act would be attracted at the stage of the execution of the conveyance since upon the execution of the sale deed, the property is transferred by sale. An agreement to sell does not create any Interest in property.
Bombay High Court
Balu Baburao Zarole And Ors. Etc. vs Shaikh Akbar Shaikh Bhikan And ... on 9 February, 2001
Equivalent citations: AIR 2001 Bom 364, 2001 (3) BomCR 255
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 Collect or 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 appellateCourt. In Nathulal v. Phoolchand , 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 the 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 AIR 1930 PC 187 and the judgment of the Supreme Court in .
4. Section 43 of the Act would be attracted at the stage of the execution of the conveyance since upon the execution of the sale deed, the property is transferred by sale. An agreement to sell does not create any Interest in property. In this regard, a reference may be made to a Judgment of a learned single Judge of this Court, D.K. Deshmukh, J., delivered on 1st October, 1997, in Appeal from Order No. 713 of 1997. The earlier Judgment delivered by M.F. Saldanha, J. which was subsequently referred to in the
Judgment of V.H. Bhairavia, J. . will have
to be construed with reference to the observations of the learned Judge in para 9 of the judgment where the Learned Judge clarified that the observations which were made in the order were for the limited purpose of the petition before the Court, which arose against an interim order. Since the Suit was pending before the Trial Court, the Learned Judge held that it would be open to the parties in the said case to urge all contentions before the Trial Court "without being prejudiced even in the least by any of the observations made" in that Judgment. In view of the subsequent Judgment of a learned single Judge, D.K. Deshmukh, J,, it would be clear that the provisions of Section 43 of the Act would be attracted at the stage of the execution of the conveyance. Before the conveyance is executed in pursuance of a decree for specific performance the previous sanction of the Collector under Section 43 would have to be sought and the execution of the conveyance can only take place after and subject to the grant of sanction by the Collector, if the Collector grants sanction, the terms and conditions laid down therein have to be observed. If sanction is refused, no coneyance can be executed. Section 43 would unquestionably be attracted to the execution of the conveyance in respect of the land and it is, therefore, that both the Courts in the present case came to the conclusion that the decree will have to be subject to the condition that permission of the Collector would have to be sought under the provisions of Section 43. The judgments of both the Courts below do not suffer from any infirmity. There is, therefore, no merit in the Second Appeal.
5. In so far as the companion Second Appeal No. 623 of 2000 is concerned, the finding of fact is that possession had been handed over, to the 1st Defendant in Regular Civil Suit No. 86 of 1989. The Plaintiff in the said suit was, therefore, held not to be entitled to an order of injunction. There is no substantial question of law that arises. There is a pure finding of fact which cannot be disturbed in the Second Appeal.
The Second Appeals are accordingly dismissed.
The Learned Counsel appearing on behalf of the Respondents states that the decree shall not be executed for 8 weeks from today.
Parties to act on a copy of this order authenticated by the Personal Secretary of this Court.
Certified copy expedited.
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