9911796707
TMI Blog1980 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on January 23, 1946. The future rent was to be paid in advance every year. If the lessee failed to pay the rent the lessor was to demand the same by giving notice of three months. If the lessee continued to default despite the notice, the lessor was entitled to recover the rent with damages and costs. The rent was to be a first charge on the land as well as the structures that might be constructed on the land, the lessee having been given the right to raise constructions on the land or to use it as an open land. On default of payment of rent even after three months' notice, it was provided by clause (4) of the deed that the lessor would be further entitled to take steps in the manner provided in clause 17 of the deed, which we shall presently extract. It was also agreed that the lessor would sell the land to the lessee within the period specified in clause 15 of the deed, to which we shall refer immediately, for a price of ₹ 1,29,111-8-0 out of which a sum of ₹ 32,227-14-0 being one-fourth of the amount was paid in cash on the very date of the execution of the deed of lease. It was agreed that if the land was acquired under the provision of the Land Acquisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the deed reveals certain vital terms which may be summarised thus : The lessee was entitled to purchase the land at any time within seven years by paying the stipulated price, a fourth of which was paid in advance. Until the date of sale he was to pay the rent but if the sale took place within two years of the deed, the lessor would not be obliged to return a proportionate part of the advance rent paid by him. If there was default in payment of rent and if the default continued even after three months' notice had been given or if the lessor failed to pay the purchase price and get sale deed executed in his favour, the lessor was entitled to call upon the lessee, by giving three months' notice, to pay the purchase price and take a deed of sale in his favour. If the lessee failed to comply with the notice the lessor was entitled to take possession of the land alongwith the structures thereon. After taking possession the lessor was bound to sell the same by public auction at the cost and risk of the lessee. If, at the auction, a price less than the stipulated price was fetched the lessee was bound to make good the deficiency to the lessor. If the price realised was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmedabad. The lessor with the permission of the Court, amended the plaint so as to include a claim for possession as well as damages in lieu of rent from January 22, 1953 onwards. The present plaintiff, the successor-in-interest of the original lessee who was defendant No. 4 in the suit filed a written statement pleading that he was a tenant as defined by the Bombay Tenancy and Agricultural Lands Act 1948, that his possession could not be disturbed and that the Civil Court had no jurisdiction to pass a decree for possession or for mesne profits. This plea was based on the circumstance that an amendment which came into force on January 1, 1953 made the provisions of the Bombay Tenancy and Agricultural Lands Act applicable to the suit lands. We may also mention here that the Act ceased to be applicable to the suit lands on August 11, 1958, when the suit lands came to be included within the limits of the Ahmedabad Municipality. To continue the narration, the suit filed by the lessor for possession was decreed on December 30, 1955. It must be mentioned here that the lessee himself had filed a suit for possession against the tenant who was in actual occupation of the lands and obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the provisions of the Bombay Tenancy Agricultural Lands Act nor the scheme made under the provisions of the Bombay Town Planning Act stood in the way of the plaintiff. The defendant has preferred this appeal by special leave of this Court. Shri Vakil learned counsel for the appellant raised several contentions before us. He contended that the English Equitable doctrine of conversion of reality into personalty had no application in India. He submitted that the plaintiff was disentitled to specific performance of any term of agreement as he had done every thing that was possible to prevent the defendant from obtaining possession of the lands thereby clearly indicating that he had resiled from and was not ready and willing to perform his part of the agreement. It was further argued that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and the provisions of the Gujarat Vacant Lands in Urban areas (Prohibition of Alienations) Act, 1972, and the Urban Land (Ceiling and Regulation) Act, 1976, were a bar to the sale by public auction of the lands by defendant. We do not wish to go in any detail into the question whether the English Equitable doctrine of conversi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of trust are created. S. 94 finally provides: "94. In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands". We may now examine some of the provisions of the Specific Relief Act, 1877, which though repealed and replaced by Act 47 of 1963. is the statute with which we are concerned. "Trust" was defined in Section 3 of the 1877 Act as having "the same meaning as in Section 3 of the Indian Trusts Act" and as "including an obligation in the nature of a trust within the meaning of Chapter IX of that Act". Section 12(a) of the Act of 1877 provided, "Except as otherwise provided in this Act, specific performance of contract may, in the discretion of the Court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust". The other clauses of Section 12 and Sections 13 to 18 enumerated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation in the nature of a trust, and, therefore an obligation which may be specifically enforced. It was contended that the plaintiff could be compensated in terms of money and therefore, the contract should not be specifically enforced. It is obvious from the very nature and the terms of the contract and the facts and circumstances of the case that compensation or damages is not determinable. In fact the defendant, apart from not raising an appropriate plea, did not offer any evidence to prove what would be suitable compensation. It was argued that the defendant had throughout committed default first by not paying the balance of the purchase price and taking the sale deed in his favour and next by resisting delivery of possession to the plaintiff. It was submitted that the defendant was thus never ready and willing to perform his obligation under the contract. We find no force in these submissions. As already observed by us the defendant had the option to purchase the property if he so desired but he was under no obligation to do so. The contract itself provided for the eventuality of the defendant ultimately not desiring to purchase the property himself. It cannot, therefore, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been published after the prescribed procedure has been gone through. The Act came into force subsequent to the passing of the decree by the High Court. The question for our consideration is what is the effect of the Urban Land (Ceiling & Regulation) Act, 1976 on the decree passed by the High Court. While it is true that events and changes in the law occurring during the pendency of an appeal require to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into force. These propositions emerge from the decisions of the Court in Pasupulti Venkateswarlu v. The Motor & General Traders, and Rameshwar & Ors. v. Jot Ram & Ors. The question, therefore, is how the decree passed by the High Court can be saved and given effect. S.21 of the Urban Land (Ceiling & Regulation) Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the parties or their counsel. The order was made without prejudice to the application said to have been made by the appellant under s. 20 of the Act. As directed by us the Receiver submitted a scheme to the Competent authority. He also entered into an agreement with a builder as the scheme would not be otherwise received by the Competent authority. Various objections have been filed before us by the defendant and some other parties. We do not desire to adjudicate upon the objections raised by the plaintiff and other parties. We, however, affirm the action taken by the Receiver in submitting a scheme to the Competent authority. All further directions in this matter may be obtained from the Trial Court to whom all the relevant records will be forwarded. We think that the decree of the High Court should be modified in the following manner in order to bring it in conformity with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. In the place of the direction to the lessor to sell the land by public auction or by private treaty and to reimburse himself from the sale price the sum of ₹ 96833-10-0 with interest at 9 per cent from January 23, 1953 and the balance ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
