Bombay High Court
Shaligram S/O Bapurao Shrungare ... vs Krushnarao W/O Laxmanrao Shingnad on 22 May, 2026
2026:BHC-NAG:7366
MCA 258.08 dt. 22.05..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION [REVIEW] NO.258 OF 2018
IN
SECOND APPEAL NO.273 OF 1995 (D)
PETITIONERS : 1. Shaligram S/o Bapurao Shrungare
Ori. Defts.
[expired] through legal heirs
1-a. Suman @ Geeta Wd/o Shaligram
Shrungare, Aged about 66 years, Occ.
Housewife,
1-b. Sanjay S/o Shaligram Shrungare,
Aged about 48 years, Occ. Private
Job,
1-c. Nandu S/o Shaligram Shrungare,
Aged about 44 years, Occ. Service,
All Nos. 1[a] to 1[c] R/o Revenue
Colony, Ratanlal Plots, Akola, Tq. and
Dist. Akola.
1d. Chitra @ Bali Ganesh @ Ashok
Barghat, Aged adult, Occ. Household
work, R/o Gadegaon Road, Near
Tahsil Office, Old court, Telhara, Tq.
Telhara, Dist. Akola.
..VERSUS..
RESPONDENTS : 1) Krushnarao W/o Laxmanrao
Ori. Pltff.
Shingnad Aged about 83 years, Occ.
Retired R/o Umari, Tq. and Dist.
Akola. (dead) thru. LR's.
Amended as per 1. Subhadrabai w/o Krushnarao
Courts order
dt.05.02.2024 Singnad, Aged about 88 years,
MCA 258.08 dt. 22.05..odt
2
Occupation - Nil, R/o. Opp. State
Bank Colony, Krushnai Niwas, Near
House of Shri Prakash Wakhare, Adv.,
Small Umari, Akola, Tah. And District
- Akola.
2. Dilip s/o Krushnarao Singnad, Aged
about 60 years, Occupation - Retired,
R/o. PIL Colony, Malkapur, Tah. And
District - Akola.
3. Sunil Krushnarao Singnad, Aged
about 55 years, Occupation - Private
Service, R/o. Near Hanuman Temple,
MHADA Colony, Khadki, Akola, Tah.
And District - Akola.
4. Anil Krushnarao Singnad, Aged about
57 years, Occupation - Private
Service.
5. Sanjay Krushnarao Singnad, Aged
about 52 years, Occupation - Private
Service.
Nos.4 & 5 R/o. Opp. State Bank
Colony, Krushnai Niwas, Near house
of Adv. Shri Prakash Wakhare, Small
Umari, Akola, Tah. And District
Akola.
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Mr. J. B. Gandhi, Advocate for Appellant.
Mr. M. G. Sarda, Advocate for respondents.
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 29.04.2026
PRONOUNCED ON : 22.05.2026
MCA 258.08 dt. 22.05..odt
3
JUDGMENT:
1) Heard finally with consent of learned advocates for the respective parties.
2) The present application is filed under Section 114 of the Code of Civil Procedure, 1908 (for short, "the CPC") seeking review of judgment dated 25.08.2016 passed by this Court in Second Appeal No.273 of 1995. The review petitioners are legal representatives of late Shalikram Shrungare, defendant in Special Civil Suit No.102 of 1991. The respondents are legal representatives of late Krishnarao Shingnad, plaintiff in the aforesaid civil suit. The parties will hereinafter be referred to as "plaintiff" and "defendant".
3) The plaintiff and defendant had entered into an agreement of sale dated 10.05.1980 with respect to suit property which comprises of house situated in the layout of Revenue Department Subordinate Co-operative Housing Society Ltd., Akola (hereinafter referred to as, 'the Society'). The total sale consideration under the agreement was Rs.45,000/-. The defendant - purchaser has paid entire MCA 258.08 dt. 22.05..odt 4 agreed sale consideration of Rs.45,000/- to the plaintiff - vendor. The defendant - purchaser was also placed in possession of the suit property by the plaintiff - vendor. These facts are not in dispute. In order to complete the sale transaction, no objection from the Society was needed. The agreement provided that the plaintiff - vendor shall make appropriate application seeking permission for transfer of the suit property in favour of defendant - purchaser and in the event such permission was not received within a period of 2 years, the plaintiff - vendor shall refund amount of Rs.45,000/- to the defendant - purchaser, who will return the possession of suit property to the plaintiff - vendor.
4) The plaintiff had made application seeking permission to transfer the land on two occasions i.e. on 18.04.1986 and 03.08.1987. Both these applications were rejected. The defendant - purchaser also filed application for seeking permission on 28.10.1987 which was also rejected.
5) In this backdrop, the plaintiff filed Special Civil Suit No.102 of 1991 for recovery of possession. The defendant opposed the suit by filing written statement and contended MCA 258.08 dt. 22.05..odt 5 that the plaintiff deliberately did not make compliance of the condition in the agreement for obtaining permission. The learned Trial Court decreed the suit in view of the covenant in the agreement that if, for any reason, the transaction is required to be cancelled, the plaintiff - vendor will return amount of Rs.45,000/- to the defendant - purchaser and defendant - purchaser will deliver possession of the suit house to the plaintiff - vendor. The learned Trial Court has held that the agreement had become void in view of rejection of application seeking permission for transfer of the suit property.
6) Being aggrieved by the aforesaid decree passed by the learned Joint Civil Judge, Senior Division, Akola on 30.09.1991 in Special Civil Suit No.102/1991, the defendant
- purchaser filed appeal being Regular Civil Appeal No.311 of 1991. The said appeal came to be allowed vide judgment and decree dated 21.04.1995 passed by the learned Additional District Judge, Akola. The learned First Appellate Court has held that vendor - plaintiff deliberately did not make application seeking permission to the competent authority MCA 258.08 dt. 22.05..odt 6 within the prescribed time period and that the suit was also barred by limitation. Perusal of findings recorded by the learned First Appellate Court will reveal that application preferred by the plaintiff - vendor was admittedly not in the prescribed form and that the plaintiff also did not agree for making payment of component of 50% profits to the concerned Co-operative Society, as a consequence of which the application was rejected.
7) In view of the above, the learned First Appellate Court held the plaintiff - vendor to be responsible for permission being refused. The learned First Appellate also accepted the contention of the defendant - purchaser that the prayer for possession was based on cancellation of agreement and that the relief of cancellation was the predominant relief. The learned First Appellate Court recorded that the requirement of obtaining permission was not an impossible condition and that it was still open to make correct application seeking permission for transfer and therefore decree for possession could not be sustained. It is held that since the permission was rejected on 28.10.1987, the suit MCA 258.08 dt. 22.05..odt 7 ought to have been filed within a period of 3 years therefrom. On this ground, it was held that the suit was barred by limitation.
8) Being aggrieved by the aforesaid decree passed by the learned First Appellate Court, the plaintiff - vendor filed Second Appeal No.273 of 1995 before this Court. Initially, vide order dated 24.08.1995, substantial question of law pertaining to limitation was framed as under:-
"Whether the Court below was right in relying upon Article 54 and 65 of the Limitation Act?"
9) Thereafter additional substantial question of law pertaining to Section 53-A of the Transfer of Property Act, 1882 came to be framed while delivering the judgment in the appeal on 25.08.2026.
10) While dealing with substantial question of law under Section 53-A of the Transfer of Property Act, this Court has held that both parties agreed that permission of Collector was required in order to complete the sale transaction and that such permission was not granted. In view of the aforesaid, this Court came to the conclusion that the situation MCA 258.08 dt. 22.05..odt 8 was covered by Section 32 of the Contract Act and held that rejection of application for grant of permission by the Collector resulted in rendering the contract void. It is held that whether the plaintiff - vendor was at fault or not was not of much consequence, since the effect of permission not being granted, namely that the plaintiff - vendor will refund the sale consideration and the defendant - purchaser will deliver back the possession, was provided under the agreement itself.
11) As regards limitation, it is held that limitation for filing suit will not be governed by Article 54 since the suit is not a suit for specific performance. This Court has held that limitation for filing the suit will be governed by Article 65. Accordingly, it was held that the suit was filed within limitation. In view of such findings, the appeal came to be allowed.
12) The defendant - purchaser has filed application seeking review of the judgment passed by this Court. Notice on the application for review was issued vide order dated 03.08.2017 recording that the question which arises for MCA 258.08 dt. 22.05..odt 9 consideration is as to whether the plaintiff can derive advantage of covenant in the agreement by deliberately avoiding fulfilment of conditions contemplated under the agreement and in such a situation whether the contract can be considered to be a contingent contract.
13) Perusal of judgment by the learned First Appellate Court will demonstrate that Secretary of the Society was examined as witness in the case. He has stated that there was a prescribed form for making application seeking no objection certificate. The witness has stated that application by the plaintiff was not in the prescribed form. Apart from this, the witness has also stated that as per the rules of Society, 50% of the amount of profits earned by the transferor were required to be deposited with the Society, which was a condition for grant of permission. The witness has stated that the endorsement of the President of the Society on the application form submitted by the plaintiff indicated that he had to deposit 50% of the amount of profits on the transaction. The witness has stated that the application was not forwarded to the Collector since it was MCA 258.08 dt. 22.05..odt 10 not in prescribed form. He has also stated that the application is rejected because the plaintiff did not agree to deposit 50% of the amount of profits as contemplated by the rules of the Society. The witness has stated that in one case, the Collector had granted permission where the application was filed in the prescribed form and the seller had agreed to pay 50% of the amount of profit. Likewise, the Secretary has also stated that if an application in prescribed format is made, it will be forwarded to the Collector for further consideration.
14) There are clear findings of facts recorded by the learned First Appellate Court, upon appreciation of oral evidence of the Secretary of the Society and also upon perusal of the application filed by the plaintiff vide Exhibit- 49, that the application could not be processed and appropriate orders regarding no objection certificate could not be obtained for the fault of the plaintiff. The plaintiff did not file application in the prescribed format and also did not agree for payment of 50% amount of profits.
15) It is thus clear that the condition stipulated in the agreement could not be fulfilled for reasons solely MCA 258.08 dt. 22.05..odt 11 attributable to the plaintiff. It is also clear that the rejection of an application is not final and it is also clear that although an application is rejected once, it can be made again and such application can be considered on its own merits. The agreement is not rendered void.
16) The learned advocate for the defendant/review petitioner, has placed reliance on judgment of the Hon'ble Supreme Court in the case of Govindbhai Gordhanbhai Patel and others vs. Ghulam Abbas, Mulla Alli Bhai and others reported in 1977 (3) SCC 179. In the said case, permission for sale of agricultural land was required under the provisions of the Maharashtra Tenancy and Agricultural Lands Act, 1948. The application was rejected since it was not accompanied by a certificate contemplated under Rule 36-F. The Hon'ble Supreme Court has held that in such cases a fresh application complying with the statutory provisions can be made and it can be decided on its own merits. It is held that rejection of earlier application will not affect the maintainability of the fresh application. It is held that earlier orders rejecting applications will not be conclusive and that MCA 258.08 dt. 22.05..odt 12 rejection of an application on earlier occasion will by itself not render the contract void.
17) Per Contra, Mr. Mohta, the learned Advocate for the plaintiff/respondent, vehemently argues that the agreement is invalid since permission to transfer the property is refused by the competent authority. He places reliance on judgment of this Court in the case of Nyanoba Sukhdeo Lande and another vs. Shrirang Mahatarraji Dhurwade reported in 1982 (2) Bom CR 18. The said judgment holds that section 53-A of Transfer of Property Act is not applicable to a case of invalid or void agreement of sale. The judgment deals with a case where a tenant upon whom ownership was conferred under section 38-E of the Hyderabad Tenancy Act had entered into agreement of sale with respect to the tenanted agricultural land and had also placed the prospective purchaser in possession of the agricultural land. Section 50-B prohibits transfer of property by a tenant upon whom ownership is conferred under the Act, without prior permission of the Collector. In view of such statutory scheme it is held that since agreement of sale coupled with possession is entered MCA 258.08 dt. 22.05..odt 13 into without prior permission, the agreement is illegal and consequently possession cannot be protected under section 53-A.
18) Apart from this, the learned advocate for the respondent/applicant places reliance on judgment of the Hon'ble Supreme Court in the case of Chandra Kishore Jha versus Mahavir Prasad and others reported in AIR 1999 SC 3558 to contend that where a statute provides that a particular thing should be done in a particular manner, it should be done in that manner alone.
19) Whereas there cannot be any dispute about the ratio of judgment of the Hon'ble Supreme Court in the case of Chandra Kishore Jha (supra), however, it is difficult to comprehend how the said decision is applicable to the facts of the present case.
20) As regards judgment of this Court, in the case of Nyanoba Lande (supra), in the said case there was a statutory provision which prohibited transfer of land without prior permission from the Collector. In order to circumvent the said statutory provision, an agreement of sale was entered into MCA 258.08 dt. 22.05..odt 14 and possession of land was delivered to the prospective purchaser. In this backdrop, this Court has held that the agreement was an invalid agreement and consequently possession of prospective purchaser could not be protected under Section 53-A of the Transfer of Property Act.
21) The learned Trial Court has held that the agreement was rendered void since permission, as contemplated in terms of the agreement, was refused. In this regard, it will be appropriate to refer to the relevant clause of the agreement regarding re-delivery of possession, true english transaction of which is quoted in paragraph 15 of judgment of the learned Trial Court.
"The agreement to sell of this House has taken place on 1.6.82. If after that till the sale deed is executed, this house will remain in your possession. If for any reason this transaction has to be cancelled, then I will return your Rs. 45,000/-. That when I return your Rs. 45,000/- at that time give me possession of the house. There will be no MCA 258.08 dt. 22.05..odt 15 interest on the money. "
22) Perusal of the said clause will indicate that if the transaction was required to be cancelled for any reason, then the plaintiff - vendor was to return the sale consideration received by him from the defendant - purchaser and the defendant - purchaser was to return possession of the suit property to the plaintiff - vendor thereafter. Although the parties agreed for obtaining permission for completing the sale transaction and there is evidence on record that in some cases permission is in fact granted, the relevant provision under which such permission was required to be obtained is not referred in the judgment of the learned Trial Court or judgment under review passed in the Second Appeal. Even during the course of hearing of the present application for review, attention of this Court was not drawn to the relevant provision which requires permission for sale of property. The consequence of refusal of permission, therefore, cannot be ascertained. It is in this backdrop when one refers to the aforesaid clause for repayment of sale consideration and re- delivery of possession, it is seen that the said contingency will MCA 258.08 dt. 22.05..odt 16 arise only when the transaction "has to be cancelled". Decree for delivery of possession cannot be sustained merely on the ground that permission is refused, since consequence of such refusal is not brought on record by the plaintiff.
23) That apart, as is held in the case of Govindbhai Gordhanbhai Patel (supra), an application for grant of permission to transfer property, when it is rejected due to some technical reason, does not operate as a res judicata and on a fresh application being made in compliance with all the requisite provisions, the authority can consider to grant permission irrespective of rejection of earlier application. The ratio of the said judgment is squarely applicable to the facts of the present case where permission was also not granted on earlier occasions for a technical reason that application was not in prescribed format and because the plaintiff - vendor did not agree to deposit 50% amount of profit. In the considered opinion of this Court, the learned First Appellate Court has rightly held that refusal of permission will not render the agreement void in the facts of the present case, since a fresh application seeking permission for transfer can MCA 258.08 dt. 22.05..odt 17 still be made. It will be pertinent to mention that even on the earlier occasion, application seeking permission was filed much beyond the period stipulated under the agreement.
24) It must also be borne in mind that it is a settled principle of law that no person should be allowed to derive benefit of his own wrong. In the case at hand, the plaintiff has not made applications in the prescribed format. He has not shown readiness to deposit 50% of the amount of profits. The applications were rejected on both occasions for the reasons attributable to the plaintiff. It will be unjust and inequitable to allow the plaintiff - vendor to reap benefit of his own wrong, particularly when fresh application seeking permission can still be made and also because the plaintiff has not brought on record the consequence of refusal of permission.
25) It is precisely in the light of this fact the learned Judge, who was pleased to initially allow the second appeal filed by the plaintiff - vendor has issued notice in the present application for review on the following question framed vide order dated 03.08.2017- MCA 258.08 dt. 22.05..odt 18 "Whether the plaintiff can take advantage to avoid the contract for non fulfillment of the condition which he himself was required to comply with and whether in such event, the contract in question can be considered as a contingent contract, are the questions which are raised in the review petition."
26) It must be stated that even if the contract is considered to be contingent contract, it will not become void since a fresh application seeking permission for transfer, compliant with all prerequisites can still be made and entertained on merits.
27) In the light of reasons recorded above, this Court is of the opinion that the plaintiff - vendor cannot be permitted to avoid the contract and seek a decree of possession since he himself is responsible for refusal of permission and also because permission can still be granted, contract does not become void. It must be reiterated that the entire agreed sale consideration was received by the plaintiff - vendor on the date of execution of sale deed itself and, as such, the MCA 258.08 dt. 22.05..odt 19 defendant - purchaser has fully complied with his obligation of making payment to the plaintiff - vendor in terms of the agreement.
28) Since the application is filed under Section 114 of CPC seeking review, interference will not be permissible unless there is an error apparent on the face of record. The error apparent on the face of record is that although the permission for transfer was not rejected on merits, but for a technical reason, the agreement is held to have become void. The settled legal principle that grant or refusal of permission for transfer is an administrative function and even after rejection of the application on technical ground fresh application can be entertained and allowed has skipped the attention while allowing the second appeal. The judgment of the Hon'ble Supreme Court in Govindbhai Gordhandas Patel (supra) is also not taken into consideration on this aspect. The rejection of earlier applications does not render the agreement void. The consequence of rejection of application is also not established by the plaintiff. Likewise, the plaintiff who has committed the breach of the agreement cannot be MCA 258.08 dt. 22.05..odt 20 allowed to derive benefit of such breach. The application falls within the scope of Section 114 of CPC.
29) In the light of reasons record above, the application for review is allowed in the following terms:-
I. Judgment and decree dated 25.08.2016 passed by this Court in Second Appeal No.273 of 1995 is recalled;
II. Judgment and decree dated 21.04.1995 passed by the learned Addl. District Judge, Akola in Regular Civil Appeal No.311 of 1991 is confirmed; and III. Judgment and decree dated 30.09.1991 passed by the learned Joint Civil Judge, Senior Division, Akola in Special Civil Suit No.102 of 1991 is quashed and set aside and the said civil suit is dismissed.
30) Since the order is pronounced during vacation and learned advocates for the respective parties are not present, office is directed to send a separate communication to the MCA 258.08 dt. 22.05..odt 21 respective learned advocates on their registered email address and cell phone numbers.
(ROHIT W. JOSHI, J.) Tαɳɱαყ...