TMI Blog1969 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant I. N. Shroff and B. L. Joshi For the Respondent: R. Gopalakrishnan JUDGMENT The Judgment of the Court was delivered by Shah, J.: Nathulal-appellant in this appeal-was the owner of a Ginning Factory constructed on a plot of agricultural 'land bearing Khasra No. 259/1. The land stood entered in the revenue records in the name of Chittarmal.-brother of Nathulal. On February 26, 1951, Nathulal agreed to sell to Phoolchand the land and the Ginning Factory for Rs. 43,011,/-. He received in part payment Rs. 22,011 /-, and put Phoolchand in possession of the property. Phoolchand agreed to pay the balance on or before May 7, 1951. The terms of the agreement, were reduced to writing in counter-part and were duly signed by the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the date on which Rs. 21,000,/- were deposited by Phoolchand within two months of the passing of the decree. Subject to this direction Phoolchand was allowed to retain. possession of the entire property, i.e., land Khasra No. 259/1 including the Ginning Factory and structures standing on the land. it was directed that if Phoolchand, committed default Nathulal may claim possession of the entire property with mesne profits at the rate of Rs. 3,000/- per annum from the date he was out of possession and till the date on which possession was delivered. The cross-objections filed by Nathulal relating to mesne profits were disposed of in the light of the directions given in the decree. With certificate granted by the High Court this appeal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the authority, on agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain the sanction of the authority concerned : see Motilal and Others v. Narhelal and Another L.R. 57 I.A.333 and Mrs Chandhee, Widya Vati Madden v. Dr. C. L. Katial Others [1964] 2 S.C.R. 495. Phoolchand could be called upon to pay the balance of the price only after Nathulal performed.his part of the contract. Phoolchand had an outstanding arrangement with his Banker to enable him to draw the amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction : Bank of India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defend his possession against the claim made by Nathulal. To the making of such a claim, relying upon the doctrine of part performance in s. 53A of the Transfer of Property Act, there is nothing in s. 70(8) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as a bar. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are , (1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty: (2) that the transferee has, in part performance of the contract,, taken po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effectively set up by Phoolchand exist. Mr. Shroff for Nathulal however contends that Phoolchand was not willing to perform his part of the contract. Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmal's name, and it was an implied condition of the contract that Nathulal will secure the sanction of the Collector to the transfer under s. 70 (4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation. In co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
