Bombay High Court
Narsing Laxman Bahirwade Through Heirs vs Vishwanath Gopal Joshi on 9 August, 1988
Equivalent citations: 1989(2)BOMCR19
JUDGMENT T.D. Sugla, J.
1. Originally the defendant's father was the Vatandar in respect of the suit land. On the abolition of Watan on the passing of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and on the payment of Nazarana in terms of section 4(1) of that Act, being the occupant, he became the owner of the suit land under the new tenure in terms of which the suit land was not transferable unless further requirements as laid down in section 4(2) of the said Act were satisfied. On 12th May, 1964, the defendant's farther made an application under section 4(2) of the Act for conversion of the suit land from new tenure to old tenure and paid the requisite amount i.e. Nazarana. However, before the application was allowed and the permission was granted converting the suit land from new tenure to old tenure, he conveyed the suit land to the plaintiff by a deed of conveyance executed and registered on 21st December, 1964 for a consideration of Rs. 900/- . On the basis of the above sale-deed, the name of the original plaintiff was entered in the Record of Rights, though subsequently authorities deleted his name from the Record of Rights on the ground that the regrant of the land from new tenure to old tenure in favour of defendant's father had not been granted before 21st December, 1964. The permission for conversion of the new tenure into old tenure was subsequently granted on 10th August, 1968.
2. However, defendant's father did not hand-over possession of the suit land to the plaintiff despite conversion of the suit land from new tenure even though the name of original plaintiff was again entered in the Record of Rights on the basis of regrant. In the circumstances, the plaintiff filed the present suit being Regular Civil Suit No. 374 of 1974 in the Court of the Court of the Civil Judge, Senior Division, Solapur, for injunction and in the alternative for peaceful possession based on the deed of sale. The father of the defendant had died before the filling of the suit. During the pendency of the suit the original plaintiff also died and his heirs were brought on record.
3. The case of the defendant is that on the day i.e. on December 21, 1964 when his father had executed the deed of conveyance, necessary permission under section 4(2) of the Act for conversion of the suit land from new tenure into old tenure was not granted and therefore, he was not competent to convey the suit land. The conveyance was illegal without authority of law and could not, therefore, be enforced against him and naturally against his heir-the defendant. The trial Court accepted the defence and dismissed the suit.
4. Before the Appellate Court the plaintiff mainly relied upon this Courts decision in the case of Vijay Laxman Gole v. State of Maharashtra and anr., Special Civil Application No. 3322 of 1978 decided on 20th July, 1979. According to the lower Appellate Court, however, the above decision was distinguishable. Unless the permission for conversion of the suit land from 'new tenure' into 'old tenure' was, as a matter of fact, granted under section 4(2) of the Act before the execution of the deed of conveyance, the title under the sale deed could not pass and any right under such a document could not be enforced. Accordingly the appellate Court dismissed the appeal.
5. Shri. Bhimrao Naik, the learned Counsel for the appellants (Plaintiffs) reiterates that the decision of this Court is squarely applicable to the facts of this case and that the lower Appellate Court was not justified in distinguishing it. It is pointed out that in that case also application and the requisite price i.e. Nazarana was paid by the Watandar under section 4(2)of the Act before the execution of deed of conveyance but actual permission converting the tenure into old tenure was granted subsequently. The Court held that once the Nazarana was paid, the permission was to be granted as a matter of course. Nothing more was required to be done by the applicant and the authorities had no discretion whatsoever to refuse the permission. The permission subsequently granted, it was further held, would therefore, relate back to the date of the application and the payment of Nazarana under section 4(2) of the Act. Shri Naik also relied on section 43 of the Transfer of Property Act for the proposition that irrespective of the conclusion whether or not the defendant's father was authorised to convey the suit land at the time of its conveyance the appellants were entitled to enforce their right at their option under the deed of conveyance under section 43 of the Transfer of Property Act whenever the original defendant acquired that right. There being no dispute that the defendant's father acquired the right to convey or transfer the suit land on 10th August, 1968, the plaintiffs could enforce their rights at least on or after that day under the deed of conveyance dated 21st December, 1964.
6. Shri Shah, the learned Counsel for the respondent, has, on the other hand, strongly relied upon the judgment of the lower appellate Court. In particular, he invited my attention to an order of a Division Bench of this Court whereby Writ Petition No 2642 of 1986 claiming relief in identical circumstances was summarily dismissed on 14th June, 1988. It must, however, be pointed out in fairness to Shri Shah that he pointed out that he himself was the Counsel in that case and that the requisite price i.e. Nazarana in terms of section 4(2) of the Act was not paid in that case before the deed of conveyance was executed. Shri Shah also relied on a Single Judge's decision of this Court in the case of Chandrabhan Chunnilal Gour v. Sharavan Kumar Khunnolal Gour, reported in 1980 Mh.L.J. 690 where the prior permission was held mandatory and the deed of conveyance was held to be ineffective in law if it was executed and registered before the permission was actually obtained. Another case relied on by Shri Shah was the case of Shankar Kashinath Godse v. State of Mah., in 1986 Mh.L.J. 250. Here again, the meaning of the expression of prior permission' it was stated had been explained by the Division Bench of this Court which supported his contention.
7. Rival contentions have been considered by me carefully. In my judgment the Division Bench of this Court in the case of Vijay Laxman Gole v. State of Mah. (Supra) decided on 20th July, 1979 is squarely applicable in this case. In that case also like the case before me, the suit land was conveyed after the application for conversion from new tenure into old tenure was made and Nazarana was paid but permission was factually granted after the deed of conveyance was executed. It was held that under section 4(2) of the Act the authorities had no discretion to refuse the application once it was made and Nazarana paid. The permission required to be granted as a matter of course. In the above view of the matter, it was held that the permission for conversion whenever granted relate back to the date of application and payment of Nazarana. As regard the judgments relied upon by Shri Shah so far as Writ Petition No. 2642 of 1987 the same was summarily rejected on 14th June, 1988. It is difficult to ascertain whether the earlier decision of this Court was considered by Their Lordships. In any event, the material facts of application and payment of Nazarana in that case was subsequent to the deed of conveyance. Therefore, summary rejection of the writ petition in that case would not support Shri Shah's contention. As regards the decision in 1980 Mh.L.J. 690 it has to be borne in mind that there was a decision under section 36 of the Bombay Public Trust Act, 1950. The trust property was conveyed before obtaining permission from Charity Commissioner. The permission to transfer the land is or can be granted by the Charity Commissioner under section 34 of the Bombay Public Trust Act. Prior permission under section 36 of the said Act to convey trust property is not only necessary, the Charity Commissioner had also discretion to refuse permission under section 34 of the Act. In that view of the matter, the decision rendered under the Bombay Public Trust Act cannot help the defendant. The decision in 1986 Mh.L.J. 250 deals with Rule 61.2 and Rule 92(7) of the Secondary Schools Code. Under Rule 61.2 of the Code, normal rule is to fill the post of Head Master from amongst the senior teachers employed in the school or schools. If for some reason such appointment cannot be made, then the management of the school is required with prior permission of the Deputy Director of Education to advertise the post and select/ appoint as Head Master a suitable qualified experienced person. Advertisement could be issued only after the permission of the Deputy Director is obtained. The expression used is 'shall' in the rule. It was in these circumstances that this Court held that when prior permission was the condition precedent in the Statute or Instrument, subsequent compliance with it would not cure the illegality. A condition precedent could not be permitted to become condition following. It may be true that on the face of it, the principle laid down in this decision might be said to apply in the present case However, when there is a Division Bench decision of this Court on the very same issue and on identical facts I am of the view that sitting as a Single Judge I am bound to follow that Division Bench decision which is squarely applicable to the facts of the present case. Besides, as argued by Shri Naik alternatively section 43 of the Transfer of Property Act to my mind squarely covers the issue in hand and therefore incapacity to convey at the time of the execution of the deed of conveyance assuming that it could not be cured, could not be advanced in defence by the defendant, once the defendant acquired the right to convey the property on obtaining permission for conversion of the new tenure into old tenure on 10th August, 1968. The plaintiff could enforce his right under the deed under section 43 of the Transfer to Property Act.
In the result, appeal is allowed. The appellants are consequently entitled to possession of the suit land and the suit is decreed for possession. No order as to costs.