Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Maharashtra Cooperative Societies Act 1960 - s.48 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Maharashtra Cooperative Societies Act, 1960 - s.48 - lf applicable - Agreement to sell between respondent-plaintiff and appellants-defendants to purchase l//2 1h share of appellants in the suit land - Earnest money paid by respondent to the appellants - However, dispute arose between the parties and no sale deed was executed - Suit filed by respondent seeking specific performance, dismissed - First appeal filed by respondent, allowed - Second appeal filed by appellant in High Court was dismissed - Plea of appellant that the agreement to sell in question amounted to an alienation or transfer in contravention of s.48(d) and was void, therefore, specific performance of the agreement could not have been granted - Held: The agreement"in question is not hit by s.48 inasmuch it was an agreement to sell, which in itself did not create any interest i11 the land nor did it amount to sale u/s.54 of the Transfer of Property Act - lt 011/y enabled the intending buyer to claim specific performance of such agreement on proving its terms - Further, the defendants agreed to sell only a small portion of the property over which charge was created in favour of the Land Development Bank and since the dues of the Bank were repaid, the question of applicability of s.48 did not arise - Further, the respondent also peeved its readiness and willingness as rightly held by the first Appellate Court after appreciative the evidence on record - Order of High Court is just and proper, calling for no interference - Transfer of Property Act, 1882 - s.54 - Specific relief. Limitation - Plea of - Mixed question of fact and law - Plea of appellant that the suit filed by the respondent was barred by limitation - Held: Plea relating to limitation being a mixed question of law and fact, the same could not have been examined, for the first time, in second appeal by the High Court.Bombay Prevention of Fragmentation and Consolidation of Holdings_ Act- s.31 - Bar under- Plea of appellant that respondent'ssuit was misconceived as no specific performance in relation to theagreement in question was permissible in view of bar uls.31 - Held:To raise a challenge to any plea, the party concerned has to firstlay foundation in the pleadings which was not done in the present case - It is more so when a plea is a mixed question of law and fact- Appellant cannot be allowed to raise such a plea in SupremeCourt being the last Court of appeal, for the first time u/Art.136 -Pleadings - Constitution of India - Art. I 36.Words and Phrases - "Agreement to sell" and "Agreement tosale" - Distinction between - Held: Agreement to sell in itself does not create any interest in the land nor does it amount to sale uls. 54of the T.P. Act - It only enables the intending buyer to claim specificperformance of such agreement on proving its terms - Agreement tosale creates an interest in the land once accomplished as defined u/s. 54 of the T.P. Act - Transfer of Property Act, 1882 - s.54. |
Judge | Hon'ble Mr. Justice Abhay Manohar Sapre |
Neutral Citation | 2017 INSC 1170 |
Petitioner | Balwant Vithal Kadam |
Respondent | Sunil Baburaoi Kadam |
SCR | [2017] 12 S.C.R. 44 |
Judgement Date | 2017-12-05 |
Case Number | 6069 |
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