Case: Bai Dosabai Vs. Mathurdas Govinddas and Others

mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has 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) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with the Co-operative Society in applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/- per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with 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 Rs. 96833-10-0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with the co-operative Society in applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a Cooperative Society and in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not wish to go in any detail into the question whether the English Equitable doctrine of conversion of reality into personality is applicable in India. However, we do wish to say that the Enghish doctrine of conversion of reality into personality cannot be bodily lifted from its native English soil and transplanted in statute-bound Indian law. But, we have to notice that many of the principles of English Equity have taken statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in England is alien to Indian Law which recognises one owner i.e. the legal owner: vide, Ramboran Prasad v. Ram Mohit Hazra &Ors. and Narandas Karsondas v. S. A. Kamtam &Anr. The ultimate paragraph of s. 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of s. 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice or the contract or a gratuitous transferee of the property. Thus the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitousf we now turn to the Indian Trusts Act, we find "trust" defined as "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner",and "beneficial interest" defined as the interest of the beneficiary against the trustee as owner of the trust- property. Chapter IX of the Trusts Act enumerates in section after section cases where obligations in the nature of trust are createdIt 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 compensationAs 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, be said that the defendant committed any default in not paying the balance of the purchase price and taking a deed of sale in his own favour. Regarding resistance to delivery of possession, it is true that he claimed the benefits given to a tenant under the Bombay Tenancy and Agricultural Land Act and resisted giving possession to the plaintiff. If under a bonafide mistaken belief that the statute had stepped in to give him higher rights than under the contract the defendant refused to deliver possession to the plaintiff until it was found by the Court that he had no such higher rights, the defendant cannot later be denied even the rights under the contract on the ground that he had claimed higher statutory rights. We do not subscribe to the proposition that a person claiming the benefits of a beneficient social legislation should be denied his contractual rights if he is found not to be entitled to the legislativet was said that the contract became void so soon as the Bombay Tenancy and Agricultural Lands Act, became applicable to the suit lands and that it could not be revived after the act ceased to apply to the suit lands .We do not see any force in this submission either. The plaintiff-respondent became entitled to demand that the property should be sold by public auction only when the defendant-appellant obtained possession and since on the date when the defendant obtained possession of the property the Act was not applicable to the lands in question, we see no impediment in the plaintiff seeking to enforce the contract. Similarly the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienations) Act, 197 2, was in force for a limited period of one year only. While it prohibited alienation of land during that Period it did not render the contract which was earlier in point of time void so as to render it incapable of being performed after the Ac t itself expiredWhile 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 forceS.21 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with the Co-operative Society in applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/- per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with 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 ofthe 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 Rs. 96833-10-0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with the co-operative Society in applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a Cooperative Society and in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank. The Receiver appointed by us in C.M.P. No. 183 of 1980 will continue to act as Receiver under the decree. Out of the sum realised after deducting the expenses involved, a sum of Rs. 96833-10-0 together with interest at 9 percent per annum from January 23, 1953 upto the date of payment, will be paid in the first instance to the defendant and the balance will be divided equally between the plaintiff and the defendant.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 compensationWe find no force in these submissions.We do not see any force in this submission either. Thet became entitled to demand that the property should be sold by public auction only when thet obtained possession and since on the date when the defendant obtained possession of the property the Act was not applicable to the lands in question, we see no impediment in the plaintiff seeking to enforce the contract. Similarly the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienations) Act, 197 2, was in force for a limited period of one year only. While it prohibited alienation of land during that Period it did not render the contract which was earlier in point of time void so as to render it incapable of being performed after the Ac t itself expiredIt is true that s. 5(3) of the Act prohibits every person holding vacant land in excess of the ceiling limit before the commencement of the Act from transferring such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has 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 CourtWhile 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. 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 given1 of the Urban Land (Ceiling &Regulation) Act, 1976, provides that where a person holds any vacant land in excess of the ceiling limit and such person declares within the prescribed time and in the prescribed manner before the competent authority that the land is to be utilised for the construction of dwelling units, for the accommodation of the weaker section of the society in accordance with any scheme approved by the specified authority, then the competent authority may after due enquiry declare such land not to be excess land and permit such person to continue to hold the land for the said purpose subject to the prescribed terms and conditions. The Government of Gujarat by various orders has prescribed the terms and conditions subject to which exemption will be granted under s. 21. The last circular dated October 25, 1979 of the Government also specifies that the value of the land for the purpose of s. 21 and the scheme should not exceed Rs. 50 per square meter. The last date for submitting a scheme under the rules made by the Government of Gujarat was January 31, 1980. Realising that all would be lost and none would be the gainer if no scheme was submitted before January 31, 1980, the respondent filed Civil Miscellaneous Petition No. 18 3 of 1980 for the appointment of a Receiver of the suit land "with power to apply for seeking exemption from the operation of the said Act under section 20 and/or 21 of the Act, by taking help of an organiser and/or builder to build residential premises for weaker sections of the Society, and/or by joining with theCooperative Societyin applying for an exemption under the said Act, and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to a cooperative Society and in the process realize price of suit land at a price not lesser then Rs. 50/per meter and to invest the same when realized at prevailing Bank rate, in Fixed Deposit, in a Nationalised Bank". By our order dated January 18, 1980, we appointed Shri R.L. Dave, Additional Registrar of the Gujarat High Court as Receiver and charged him with the duty of submitting a building scheme and other necessary documents to the Competent authority under s. 21 of the Urban Land (Ceiling and Regulation) Act, before January 31, 1980. He was directed to do so in consultation with 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 ofthe 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 Rs.0 with interest at 9 per cent from January 23, 1953 and the balance to be equally divided between the lessor and the lessee, a direction will issue for the appointment of a Receiver to take all necessary steps to seek exemption from the operation of the Act, under s. 20 and/or s. 21 of the Act by taking the help of an organiser and/or builder to build residential premises for weaker section of the Society, and/or by joining with thecooperative Societyin applying for an exemption under the said Act and in the process after getting necessary permission, allow buildings to be built, and then permission to sell the tenements, so built either collectively and/or individually and/or to aCooperative Societyand in the process realize price of suit land at a price not lesser than Rs. 50 per meter and to invest the same when realised at prevailing Bank rate, in fixed Deposit, in a Nationalised Bank.