BALWANT VITHAL KADAM versus SUNIL BABURAOI KADAM

Citation: [2017] 12 S.C.R. 44 · Decided: 05-12-2017 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

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Judgment (excerpt)

A 
B 
c 
[2017] 12 S.C.R. 44 
BALWANT VITHAL KADAM 
v. 
SUNIL BABURAOI KADAM 
(Civil Appeal No.6069 of2008) 
DECEMBER 05, 2017 
[ABHAY MANOHAR SAPRE AND NAVIN SINHA, JJ.] 
Maharashtra Cooperative Societies Act, 1960 - s.48 - lf 
applicable - Agreement to sell between respondent-plaintiff and 
appellants-defendants to purchase l//21h share of appellants in the 
suit land - Earnest money paid by respondent to the appellants -
However, dispute arose between the parties and no sale deed was 
executed - Suit filed by respondent seeking specific performance, 
dismissed - First appeal filed by respondent, allowed - Second 
appeal filed by appellant in High Court was dismissed - Plea of 
D 
appellant that the agreement to sell in question amounted to an 
alienation or transfer in contravention of s.48(d) and was void, 
therefore, specific performance of the agreement could not have 
been granted - Held: The agreement"in question is not hit by s.48 
inasmuch it was an agreement to sell, which in itself did not create 
E 
F 
any interest i11 the land nor did it amount to sale u/s.54 of the Transfer 
of Property Act - lt 011/y enabled the intending buyer to claim 
specific performance of such agreement on proving its terms -
Further, the defendants agreed to sell only a small portion of the 
property over which charge was created in favour of the Land 
Developme11t Bank and since the dues of the Bank were repaid, the 
question of applicability of s.48 did not arise - Further, the 
respondent also p1vved its readiness and willingness as rightly held 
by the first Appellate Court after appreciati11g the evidence on record 
- Order of High Court is just and proper, calling for no inte1ference 
- Transfer of Property Act, 1882 - s.54 - Specific relief. 
G 
Limitation - Plea of - Mixed question of fact and law - Plea 
H 
of appellant that the suit filed by the respondent was barred by 
limitation - Held: Plea relating to limitation being a mixed question 
of law and fact, the same could not have been examined, for the 
first time, in second appeal by the High Court. 
44 
BALWANT VITHAL KADAM v. SUNIL BABURAOI KADAM 
45 
Bombay Prevention of Fragmentation and Consolidation of A 
Holdings_ Act- s.31 - Bar under- Plea of appellant that respondent's 
suit was misconceived as no specific performance in relation to the 
agreement in question was permissible in view of bar uls.31 - Held: 
To raise a challenge to any plea, the party concerned has to first 
lay foundation in the pleadings which was not done in the present B 
case - It is more so when a plea is a mixed question of law and fact 
- Appellant cannot be allowed to raise such a plea in Supreme 
Court being the last Court of appeal, for the first time u/Art.136 -
Pleadings - Constitution of India - Art. I 36. 
Words and Phrases - "Agreement to sell" and "Agreement to 
sale" - Distinction between - Held: Agreement to sell in itself does 
C 
not create any interest in the land nor does it amount to sale uls. 54 
of the T.P. Act - It only enables the intending buyer to claim specific 
performance of such agreement on proving its terms - Agreement to 
sale creates an interest in the land once accomplished as defined u/ 
s. 54 of the T.P. Act - Transfer of Property Act, 1882 - s.54. 
D 
Dismissing the appeal, the Court 
HELD: 1. The agreement in question is not hit by Section 
48 of the Maharashtra Co-operative Society Act, 1960 inasmuch 
as the agreement to sell in itself does not create any interest in 
the land nor does it amount to sale under Section 54 of the 
E 
Transfer of Property Act, 1882 (T.P. Act). It only enables the 
intending buyer to claim specific performance of such agreement 
on proving its terms. In other words, there lies a distinction 
between an agreement to sell, and sale. The latter creates an 
interest in the land once accomplished as defined under Section 
F 
54 of the T.P. Act. 
It was also rightly held on facts that since the 
dues of the Land Development Bank were repaid, the <1uestion 
of applicability of Section 48 did not arise. There is no ground to 
disagree with this factual finding. [Para 17] [ 49-G-H; 50-A] 
2. The plea relating to readiness and willingness, bei11g a a 
finding of fact, it could not be disturbed in second appeal and was 
binding on the High Court. It was more so ~hen the first Appellate 
Court had recorded its finding by appreciating the entire evidence 
on record. There is, therefore, no ground to disagree with this 
finding of the

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