Bombay High Court
Iqbal Hajiali Dhanani (Deceased) ... vs Ratan Jehangir Cooper on 29 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4750
Sonali Mane 7-SA-631-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 631 OF 2023
WITH
INTERIM APPLICATION NO. 17104 OF 2023
IN
SECOND APPEAL NO. 631 OF 2023
Qbal Hajiali Dhanani (Deceased) }
Through Legal Heirs & Ors. } ... Appellants
Versus
Ratan Jehangir Cooper } .. Respondent
...
Mr. Rajiv Patil, Serionr Advocate a/w Mr. Ojas Kocharekar for the
Appellants.
Mr. Rajesh P. Khobragade for Respondent.
...
CORAM : SANDEEP V. MARNE J.
DATE : 29 JANUARY, 2024.
P.C.:-
1) This Appeal is filed by the Appellants challenging the Judgment
and Decree dated 31 March 2023 passed by District Judge-2, Palghar in
Regular Civil Appeal No. 67 of 2016, by which the first Appellate Court has
reversed the Decree passed by Civil Judge, Senior Division, Palghar on
20 December 2011 in Special Civil Suit No. 40 of 2008 and has dismissed the
Suit.
Sonali Mane 7-SA-631-2023.doc
2) Briefly stated, facts of the case are that agricultural lands
bearing Survey Nos. 11/7, 49/1, 51, 52, 55/6 at village Pasthal, Taluka
Palghar, District Thane, were cultivated by one Ratanshaw Cooper as a
tenant under Lease Deed dated 16 May 1954, which was executed in the
name of his wife Smt. Meharabai and her son Jahangeer. Meharabai
executed Power of Attorney dated 21 February 1980 in favour of her son
Jahangeer. It is Plaintiff's case that Jahangeer Ratanshaw Cooper executed
Sale Deed dated 25 September 1989 for himself and as Power of Attorney
holder of his mother Meharabai in favour of Shri. Pradeep Bhikaji Save and
Shri. Sanjay Narayan Churi after obtaining permission under provisions of
Section 43 of the Maharashtra Tenancy and Agricultural Lands Act, 1948
(the Tenancy Act).
3) Meharabai died on 23 January 1996. It is Plaintiff's case that
after death of Meharabai, disputes arose between Jahangeer on one side, and
his three brothers and one Sister on the other, wherein Jahangeer's siblings
claimed shares in the land on the premise that the lease was held on behalf
of the joint family. On 20 November 1999, purchasers- Pradeep Bhikaji Save
and Sanjay Narayan Churi executed Power of Attorney in favour of the
Plaintiff in respect of lands purchased by them vide Sale Deed dated
25 September 1989. Memorandum of Understanding was executed on
13 December 1999 between Plaintiff, Pradeep Save, Sanjay Churi and
Sonali Mane 7-SA-631-2023.doc
Jahangeer under which, Plaintiffs agreed to purchase the land and pay to
Jahangeer the balance consideration set forth in the Conveyance dated
25 September 1989. It appears that out of agreed consideration of
Rs.35,00,000/-, Jahangeer was paid only Rs. 5,00,000/- at the time of
execution of Sale Deed dated 25 September 1989. Plaintiff therefore paid
Rs.3,50,000/- to Jahangeer at the time of execution of MOU and balance
amount of Rs.26,50,000/- was to be paid within 12 months of withdrawal
and settlement of all disputes and litigations between Jahangeer and his
family members. Jahangeer also executed General Power of Attorney in
favour of Plaintiff on 13 December 1999.
4) It is Plaintiff's case that at the time of execution of the MOU,
Jahangeer owned 50% share in the land, whereas the balance of 50%
belonged to his mother Meharabai. Jahangeer died on 11 February 2008.
Defendant is Jahangeer's son as his only legal heir.
5) In the above background, Plaintiffs instituted Special Civil Suit
No. 40 of 2008 before Civil Judge, Senior Division, Palghar seeking
injunction against the Defendant from committing breach of MOU and to
transfer his undivided share as heir of Jahangeer in the suit property as per
the MOU by accepting balance amount of consideration. It was also prayed
that if the share of Jahangeer and his three brothers was held to be equal in
Sonali Mane 7-SA-631-2023.doc
pending litigation, MOU be specifically performed to the extent of
Jahangeer's share.
6) The Trial Court held that execution of the MOU and payment of
amount to Jahangeer was proved, however the Trial Court held the suit for
specific performance of MOU to be premature on the ground that the
litigation between Jahangeer and his brothers was yet to be settled. On that
count, the Trial Court did not grant prayer for specific performance.
However, the Trial Court proceeded to partly decree the suit injuncting the
Defendant perpetually from creating third party interests in the suit property
except by due process of law. The Trial Court granted the said relief on the
ground that till settlement of disputes between Jahangeer and his family
members and till specific performance of MOU, the suit property deserved to
be protected.
7) Both Plaintiffs and Defendant were aggrieved by the Trial
Court's decree dated 20 December 2011. Plaintiff filed first Appeal
No.1594 of 2012 in this Court. Whereas Defendant filed first Appeal
No.1052 of 2012 in this Court. Both the Appeals came to be transferred to
the District Court, Palghar on account of amendment in pecuniary
jurisdiction by Order dated 12 October 2015. Defendant's Appeal was
numbered as Regular Civil Appeal No. 67 of 2016 and Plaintiff's Appeal was
treated as cross objection in Regular Civil Appeal No. 67 of 2016. The first
Sonali Mane 7-SA-631-2023.doc
Appellate Court decided the Appeal and the Cross Objection by common
Judgment and Order dated 31 March 2023. Defendant's Appeal bearing
Regular Civil Appeal No. 67 of 2016 has been allowed by setting aside the
decree of permanent injunction granted by the Trial Court and accordingly
Special Civil Suit No. 40 of 2008 filed by the Plaintiff has been dismissed.
The cross objection filed by Plaintiff has also been dismissed. Legal heirs of
Plaintiff are aggrieved by the Judgment and Order dated 31 March 2023 and
have filed the present Second Appeal.
8) I have heard Mr. Patil, the learned Senior Advocate appearing
for the Appellants and Mr. Khobragade the learned counsel appearing for
Respondents.
9) After having considered the submissions canvased by the learned
counsel appearing for parties, it is seen that Plaintiff's suit was for specific
performance of the MOU dated 13 December 1999, by which he agreed to
purchase the suit property from Shri. Pradeep Save and Shri. Sanjay Churi
and to which Jahangeer Ratanshaw Cooper was also a signatory. The MOU
was premised on previous transaction executed by Jahangeer in favour of
Pradeep Save and Sanjay Churi on 25 September 1989. It was Plaintiff's case
that Jahangeer executed Conveyance dated 25 September 1989 in favor of
Pradeep Save and Sanjay Churi acting for himself as well as Power of
Sonali Mane 7-SA-631-2023.doc
Attorney holder of his mother Meharabai. According to the Plaintiffs,
Jahangeer and Meharabai each had 50% share in the suit property. It appears
that, under the Deed of Conveyance dated 25 September 1989 Pradeep Save
and Sanjay Churi were supposed to pay consideration of Rs.35,00,000/- to
Jahangeer and only Rs.5,00,000/- was paid and Rs.30,00,000/- remained to
be paid. Under the MOU, Plaintiff paid Rs.3,50,000/- to Jahangeer and
agreed to settle the disputes between Jahangeer and his family members
relating to the suit property. The sale transaction was to be executed after
settlement of disputes by paying balance amount of Rs.26,50,000/- to
Jahangeer.
10) This is how MOU dated 25 September 1989 was based on
presumption that Pradeep Save and Sanjay Churi had become owners of the
suit property and were in a position to convey the same in favour of
Plaintiffs. Jahangeer was added as a party to MOU possibly because the
entire amount of consideration was not paid to Jahangeer at the time of
execution of Agreement to Sale on 25 September 1989.
11) However, certain developments took place at the front of
tenancy authorities. As observed above, Ratanshaw had got the suit property
entered in the name of Meharabai and Jahangeer as tenants and accordingly
32G proceedings were conducted thereby making Jahangeer and Meharabai
Sonali Mane 7-SA-631-2023.doc
as tenant-purchasers vide Order dated 17 March 1988. The other children of
Meharabai got aggrieved by 32G proceedings and challenged the same by
filing TNC Appeal Nos. 15/89 and 16/89 before Sub-Divisional Officer,
Dahanu contending that they also hold share in the suit property. During
pendency of proceedings before , Jahangeer applied for permission under
Section 43 of the Tenancy Act for effecting sale of suit property in favour of
Pradeep Save and Sanjay Churi. Such permission was granted by SDO on
11 July 1989. Appeals preferred Jahangeer's brother and sister by were
dismissed by SDO on 25 January 1996. They preferred Revisions before
Maharashtra Revenue Tribunal (MRT). Simultaneously, the permissions
granted by SDO on 11 July 1989 for sale of property was also challenged by
them before MRT. MRT passed two orders on 14 January 1997. The
Revisions challenging 32G proceedings were allowed and 32G proceedings
were remanded to Agricultural Lands Tribunal (ALT) to decide the same
afresh. By separate order passed on the same day, MRT set aside the sale
permission granted by SDO on account of remand of 32G proceedings.
12) However, based on the permission dated 11 July 1989 sale deed
dated 4 October 1989 was executed in favour of Pradeep Save and Sanjay
Churi by Jahangeer. Since the permission was subsequently set aside by MRT,
the sale executed in favour of Pradeep Save and Sanjay Churi was rendered
void. As observed above Pradeep Save and Sanjay Churi executed MOU in
Sonali Mane 7-SA-631-2023.doc
favour of Plaintiff on 13 December 1999, after their sale transaction became
void vide MRT's order dated 14 January 1997. The other family members of
Jahangeer filed Application under Section 84 of the Tenancy Act before SDO
and sought declaration that the sale transaction vide conveyance dated
4 October 1989 as well as Plaintiff's MOU were unauthorized. SDO passed
Order dated 30 September 2002 holding the transfers as illegal and directing
eviction of Pradeep Save, Sanjay Churi and Plaintiff. The said order of SDO
came to be upheld by MRT by Order dated 31 March 2009. This is how the
transfer dated 25 September 1989 executed by Jahangeer in favour of
Pradeep Save and Sanjay Churi was declared void and consequently MOU
dated 13 December 1999 executed in favour of Plaintiff became incapable of
being specifically performed. The Trial Court in my view erred in holding
that MOU was capable of being specifically performed upon settlement of
disputes amongst family members of Jahangeer. The Trial Court ought to
have dismissed the suit of Plaintiff but erroneously granted relief of
injunction restraining Defendant from creating third party rights for
indefinitely till settlement of disputes between family members of Jahangeer.
The first Appellate Court has rightly corrected the error committed by Trial
Court.
13) Even otherwise, various covenants of the MOU are couched in
such a manner that the same is impossible being specifically performed. The
Sonali Mane 7-SA-631-2023.doc
other family members of Jahangeer are in serious litigations about their
shares in the suit property. MOU executed in favour of Plaintiff hinges on
legality of sale deed executed in favour of Pradeep Save and Sanjay Churi in
the year 1989. The permission granted under Section 43 of the Tenancy Act
for execution of that sale has been set aside and the transfer is declared
illegal. In that view of the matter, no possible right accrued in favour of
Plaintiff to seek specific performance of the MOU.
14) Mr. Patil has strenuously contended that even if the entire suit
property cannot be transferred in favour of Plaintiff, at least Jahangeer's
share (either 50% or in any case his equal share along with his brothers and
sister, depending on result of their litigation) must be transferred in the
name of Plaintiff towards of specific performance of the MOU dated
13 December 1999. Though the submission may appear to be attractive in
the first blush, the same cannot be accepted as the same again faces the same
hurdle of imperfect title of Pradeep Save and Sanjay Churi on account of
declaration of sale deed executed in their favour to be void. Also, even if
MOU is treated as a standalone agreement with Jahangeer and not
dependent on title of Pradeep Save and Sanjay Churi, the same is impossible
of being specifically performed as it is contingent on declaration of share of
Jahangeer in pending litigations with his siblings. The suit was for specific
performance and on account of existence of several hurdles, the agreement is
Sonali Mane 7-SA-631-2023.doc
rendered incapable of being specifically performed. Therefore, the prayer for
transfer of Jahangeer's share in the name of the Plaintiff cannot be
entertained.
15) The first Appellate Court has held that Plaintiff is an experienced
player in the matter of purchase of properties and that he took a calculated
risks of execution of MOU dated 19 November 1999 after the 32G
proceedings in favour of Jahangeer and Meharabai were remanded to ALT
and sale permission under Section 43 of Tenancy Act were set aside by MRT
on 14 January 1997. Plaintiff thus entered into MOU with Pradeep Save and
Sanjay Churi and Jahangeer with full knowledge of MRT's decisions dated
14 January 1997. He must take the responsibility of the risk that he took.
16) After considering the overall conspectus of the case, I do not find
any serious error being committed by the first Appellate Court in dismissing
Plaintiff's suit. No substantial question of law is involved in the Appeal. The
Appeal is accordingly rejected.
17) In view of the disposal of the Second Appeal, Interim
Application No.17104 of 2023 do not survive and the same are also disposed
of.
[SANDEEP V. MARNE J.]
