1. The present reference has been placed before this Bench under an order dated 13.01.2023 passed by the then Hon'ble the Chief Justice.

2. By order dated 13.12.2022 in Second Appeal No. 208 of 2021, the following questions have been referred to a Larger Bench :-

"(a) That there are two different opinion of the Hon'ble Division Bench of this Court with regard to the applicability of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 wherein the issue involved is that Sub Section (1) of Section 43 of the Tenancy Act inter alia provides that no land or any interest therein purchased by a tenant under Section 17B, 32 etc. shall be transferred or shall be agreed by an instrument in writing to be transferred by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector. As per SubSection (2) of Section 43 of the Tenancy Act, any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of Sub-Section (1) shall be invalid. Significantly, Section 43 does not make agreement to sale hit by Sub-Section (1) void. The applicability of Section 43 of the Tenancy Act to the agreement to sale in question and subsequent transactions entered into by the original land owners with respect to such land would be an issue which can be gone into by the Trial Court at the time of trying the suit.

(b) The next question is that subsequently, the very Hon'ble Division Bench issued notice as the Hon'ble Division Bench has also not aware with regard to earlier unreported decision of the Hon'ble Division Bench of this Court and, therefore, the Court issued notice in the case of Laljibhai Jivrajbhai Aslaliya Vs. Musabhai Yusuf Isufbhai Miya in First Appeal No. 1667 of 2021."

3. It is noted by the learned Single Judge in the referral order that another Division Bench of this Court (without any details) had taken a contrary decision at an earlier point of time, which was not placed before the subsequent Division Bench in Ganpatlal Manjibhai Khatri (Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor reported in 2019 (0) AIJEL – HC – 241533), The question was, thus, framed as to whether there is conflict in the decision of two Division Benches given at different point of time and that the conflict is to be resolved by the Larger Bench.

4. Heard Mr. Maulik Nanavati, learned Advocate with Mr. Kishan Patel, Ms. Manvi Damle, learned Advocates for the Appellants, Mr Arjun M Joshi, Advocate for the Respondent No. 2, Mr Isa Hakim, Advocate for the Respondent No. 1, and Mr. Dhaval C. Dave, Senior Advocate with Mr. Jigar M. Patel, Advocate, Mr. Deven Parikh, Senior Advocate with Mr. Vimal Purohit, Advocate, Ms. Trusha K Patel, Advocate, Mr. Dhaval D. Vyas, Advocate, Mr. Amit V. Thakkar, Advocate, Mr. Pavan S. Godiawala, Advocate and Ms. Manisha Lavkumar Shah, learned Government Pleader with Mr. Utkarsh Sharma and Mr. Siddharth Rami, Assistant Government Pleaders were heard on the issues involved in the Reference and perused the record.

[I] Preface:-

5. At the outset, the learned counsels for the parties framed draft issues so as to facilitate the Court to frame question(s) of reference. There are two sets of Advocates in this matter. The first set is of the advocates arguing for the case of plaintiff-vendees and another for the defendants vendors or subsequent purchasers. The State is also a contesting party in the matter.

6. Before we set out the question(s) of reference on the rival submissions of the learned counsels for the parties, a brief look to the previous decisions of this Court on the question "whether the plaint can be rejected on the ground that the suit for specific performance of contract based on an illegal or invalid agreement to sell, being hit by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 is not maintainable, will be helpful.

(A)-Amarben wd/o Ramjibhai Desai versus Udaji Kanaji and others

(i) The Division Bench of this Court in Amarben Wd/o Ramjibhai Desai (First Appeal No. 1845 of 2017 titled as Amarben Wd/o Ramjibhai Desai versus Udaji Kanaji and others dated 15.11.2017) , was faced with the question of validity of the judgment and order dated 04.01.2017 passed in Special Civil Suit No. 554 of 2009, wherein the plaint was rejected under Order VII Rule 11 of Civil Procedure Code, on the application filed by the defendants therein. The brief facts of the said case are relevant to be noted herein. The suit for specific performance of agreement dated 22.05.1997 was filed by the plaintiff. Amarben's husband had signed the agreement. The agreement to sell recorded the factum of passing of the sale consideration to the landowners and that the possession would be handed over upon payment of full sale consideration; the responsibility to get his title cleared was put on the landowner. On 03.07.1997, another agreement was entered into between the parties to handover possession of the suit land to the deceased husband of the plaintiff and it is recorded in the said agreement that remaining sale consideration had been paid and received by the seller. The suit land was admittedly a New Tenure land. It appears that the original landowners later got converted the suit land from New tenure to Old tenure and sold the same to the defendants in the suit (the subsequent purchaser) by the sale deed dated 29.09.2003.

(ii) After death of the husband of the plaintiff, the suit was filed on 24.11.2009 seeking for a decree of specific performance of agreement by execution of the sale deed. It was averred that despite the payment of the entire sale consideration to the original landowners, they had illegally executed a registered sale deed dated 29.09.2003 in favour of the defendants (subsequent purchasers). As regards the cause of action, it was urged that the cause of action commenced on the date of the execution of the agreement and continued further on the date of payment of the sale consideration to the landowners and handing over possession to the deceased husband of the plaintiff.

(iii) In the written statement, the defendant-original landowners (vendors) filed an application for seeking rejection of the plaint under Order VII Rule 11 of the CPC, contending therein that the agreement to sell dated 22.05.1997 was barred by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, (in short the Tenancy Act, 1948). Being void ab initio in terms of Section 23 of the Indian Contract Act, 1872, the said agreement was incapable of specifically enforced. It was also contended that the suit was barred by limitation. The trial court had allowed the application and rejected the suit on both grounds, namely being barred by limitation and further that the agreement, which was the basis of the suit seeking decree of specific performance was hit by Section 43 of the Tenancy Act, 1948.

(iv) In the above scenario, the Division Bench of this Court while deciding the question of applicability of Section 43 of the Tenancy Act, 1948, had only observed that number of issues would arise to decide the said question. As per Sub-section (2) of the Section 43 the Tenancy Act, 1948, such an agreement being in contravention of sub-section (1) of Section 43 shall be invalid, but would not be void. The question about the applicability of Section 43 of the Tenancy Act, 1948 to the agreement-in-question as also the subsequent transaction entered into by the landowners with respect to the suit land, would be required to be examined by the trial court at the time of trying the suit. The plaint could not have been rejected on the ground of the agreement being barred by Section 43 of the Tenancy Act, 1948.

(B) Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor

(i) Another Division Bench in Ganpatlal Manjibhai Khatri (supra) dealt with the same issue of challenge to the judgment and decree passed by the trial court on 19.07.2018, rejecting the plaint under Order VII Rule 11 on the ground that the suit filed by the plaintiff for specific performance of contract based on the agreement to sell was time barred.

(ii) Having considered the issue of limitation for rejection of the plaint, the Division Bench had also examined the question whether the plaint was liable to rejected on the ground that the suit for specific performance of contract based on illegal or invalid agreement to sell being hit by the Section 43 of the Tenancy Act, 1948, was not maintainable.

(iii) It was noted that a Single Bench of this Court in Hasvantbhai Chhanubhai Dalal (Hasvantbhai Chhanubhai Dalal versus Adesinh Mansinh Raval and others reported in 2019 SCC OnLine Guj 6896) in First Appeal No. 1539 of 2015 in the judgement and order dated 12.04.2019, on the same issue has held that the suit for specific performance of contract based on invalid agreement to sell being hit by Section 43 of the Tenancy Act, 1948, was not maintainable in law. The agreement being invalid under Section 43 was incapable of being specifically enforced and if the agreement of sale itself is invalid, no decree for specific performance can be passed by the trial court.

(iv) The decision of the Bombay High Court in Balu Baburao Zarole (Balu Baburao Zarole versus Shaikh Akbar Shaikh Bhikan, reported in 2001 AIR (Bom.) 364)  was also considered by the Division Bench therein, wherein it was noted that Section 43 of the Tenancy Act, 1948 would be attracted at the stage of execution of the conveyance since upon the execution of the sale deed the property was to be transferred by sale. An Agreement to sell does not create any interest in the property before conveyance is executed in pursuance of the decree for specific performance. The previous sanction by the Collector under Section 43 of the Tenancy Act, 1948 would have to be sought and the execution of the conveyance could only take place after and subject to the grant of sanction by the Collector. Had the Collector granted sanction, the terms and conditions laid down therein had to be observed. If sanction was refused, no conveyance could be executed. Section 43 of the Tenancy Act, 1948 would unquestionably be attracted to the executed conveyance, in respect of the land. It was held that both the Courts below had passed a decree holding that the agreement to sell was duly proved and the plaintiff who had paid consideration, should establish his readiness and willingness to perform the contract. The plaintiff was, thus, entitled to specific performance of contract subject to the sanction granted by the Collector under Section 43 of the Tenancy Act, 1948.

(v) It was further noted by the Division Bench in Ganpatlal Manjibhai Khatri (supra) that the Bombay High Court in Balu Baburao (supra) had relied upon the judgment of the Apex Court in Nathulal (Nathulal vs. Phoolchand, reported in AIR 1970 SC 546), which was pertaining to Section 70(8) of the Madhya Bharat Land Revenue and Tenancy Act, wherein only conditions were for registration of the sale deed in accordance with the law of registration in force for the time being, for being valid. It was noted that relying upon the Doctrine of part performance in Section 53A of the Transfer of Property Act, 1882, it was noted therein that it was implied condition of the contract that the seller will secure sanction of the Collector to the transfer under Section 70(4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950, and this condition was not fulfilled within the time prescribed therein. The second condition agreed was that the seller will have the revenue records rectified by securing the deletion of someone else's name.

It was noted by the Apex Court in Nathulal (supra) that the transferee had, in part performance of the contract, taken possession of the property and had shown willingness to perform his part of the contract under the terms of the contract. The obligations of the parties have to be performed in a certain sequence. One of the parties to the contract cannot require compliance with the obligations by the other party in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier.

(vi) Taking note of the above, the provisions of Section 43 of the Tenancy Act, 1948 was construed by the Division Bench in Ganpatlal Manjibhai Khatri (supra) noticing that one pertinent feature of Section 43 of the Tenancy Act, 1948, applicable for Bombay area of the State of Gujarat is the amendment by which even an agreement by instrument in writing to be transferred came to be prohibited. Such a restriction was not found in the Section 43 applicable for the Bombay area of the State of Maharashtra. The principle which the Apex Court had laid down in Nathulal (supra) and which has been referred to and relied upon by the Bombay High Court in the case of Balu Baburao Zarole (supra) was that if the property was not transferable under the statute without the permission of the authority, an agreement to transfer the property must be deemed to be subject to the implied condition that the transferor would obtain the sanction of the authority concerned.

(vii) Taking note of the above, it was held by the Division Bench in Ganpatlal Manjibhai Khatri (supra), as under :-

"27. This decision, in our opinion, has no application to the facts of the instant case because in our opinion, under Section 43 of the Act, 1948 applicable to the Bombay area of the State of Gujarat, there is a total prohibition of even entering into an agreement in writing for the purpose of sale. Section 43 of the Act applicable for Bombay area of the State of Gujarat makes it very clear that any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of sub-section (1) or subsection (1)(c) shall be invalid. Thus, the decision of the Supreme Court in the case of Nathulal (supra) has no application in the present case. If that be so, the decision in Hasvantbhai (supra) cannot be termed as per incuriam.

28. It is not in dispute that the agreement to sell dated 27th January, 2010 could be termed as invalid or void as the same was entered into without the prior permission or sanction of the Collector. The suit for specific performance of contract based on an invalid agreement to sell hit by Section 43 of the Tenancy Act, 1948 applicable for the Bombay area of the State of Gujarat is not maintainable in law. If the agreement is rendered invalid under Section 43 of the Act, 1948, such agreement is incapable of being specifically enforced. If the agreement to sell itself is invalid, no decree for specific performance can be passed by the Trial Court.

29. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. (See Satish Kumar vs. Karan Singh & Anr., Civil Application No. 7385 of 2013, decided on 21st January, 2016)."

(viii) The decision of the Apex Court in Mayawanti (Mayawanti versus Kaushalya Devei reported in (1990) 3 SCC 1) was noted in paragraph 30 by the Division Bench as under :-

"30. The Supreme Court in Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 held thus:

"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."

(ix) It was further held in paragraph 33 as under :-

"33. In our opinion, it would be within the jurisdiction of the Civil Court alone to determine whether the agreement on the basis of which the suit for specific performance is instituted is a valid agreement or not. To put it in other words, the jurisdiction exercisable for the determination of the enforceability of the agreement of sale clearly resided in the Civil Court which alone had the jurisdiction to make an adjudication on that question."

(C) Vijaybhai Shambhubhai Patel versus Sushilaben Dayalbhai Vijay versus Sushilaben Dayalbhai

(i) The Division Bench in Vijaybhai Shambhubhai Patel (Vijaybhai Shambhubhai Patel versus Sushilaben Dayalbhai Vijay versus Sushilaben Dayalbhai in First Appeal No. 1556 of 2021 in reported decision dated 21.06.2021 reported in 2021 O AIJEL HC 244418) has dealt with the issue of rejection of plaint under Order VII Rule 11 of CPC on the ground that the suit itself was not maintainable as a decree of specific performance could not be granted on the basis of an invalid or void agreement to sell being hit by Section 43 of the Tenancy Act, 1948. While observing that the said issue was squarely covered in the case of Ganpatlal Manji Khatri (supra), the appeal was dismissed. A Special Leave Petition (C) No. 5124 of 2022 titled as Vijaybhai Shambhubhai Patel versus Sushilaben Dayalbhai & Others was filed challenging the aforesaid decision of the Division Bench of this Court. The Apex Court had disposed of the Special Leave Petition vide judgement and order dated 10.11.2022 observing that having perused the judgment and keeping in view the nature of consideration made by the High Court, there was no reason to interfere with the judgement.

(D) HARDIKBHAI HARSHADBHAI PATEL VERSUS AMARSANG NATHAJI AS HIMSELF AND AS KARAT AND MANAGER

(i) A learned Single Judge in Hardikbhai Harshadbhai Patel (Hardikbhai Harshadbhai Patel versus Amarsang Nathaji As Himself and As Karat and Manager reported in 2016 (0) AIJEL-HC 235181, in Appeal from Order No. 489 of 2013 dated 13.04.2016) has also dealt with the issue pertaining to the transfer of the land of restricted tenure without the previous sanction of the Collector, in a suit for specific performance of agreement, which was entered into without getting the previous sanction of the Collector. It was noted that the land of restricted tenure could not be transferred or agreed to be transferred or sold without the previous sanction of the Collector and that any transfer or any agreement of transfer of land or interest therein, if made, without the previous sanction of the Collector, would be invalid.

(ii) It was noted that Section 23 of the Indian Contract Act states that consideration or object of the agreement is lawful, unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provision of any law. In cases where the consideration or object of an agreement is said to be unlawful, or the agreement of which the object and consideration is unlawful , the agreement would be void.

(iii) Since the agreements for the sale-in-question, executed without the previous sanction of the Collector, were forbidden under Section 43(1), they were invalid under Section 43(2) of the Tenancy Act, 1948. The consideration or object of such agreement would also, therefore, be unlawful and such agreements would be "void agreement" in view of Section 23 of the Indian Contract Act, 1872. There is no provision in the Tenancy Act, 1948, which would authorize any authority under the said Act to validate, such agreement of sale executed without previous sanction of the Collector and in violation of Section 43(1) of the said Act. It was, thus, held that such agreements which are unlawful and void, in view of Section 23 of the Indian Contract Act, 1872, read with Section 43 of the Tenancy Act, 1948, cannot be enforced, nor any decree of specific performance of such agreement could be passed by the Court.

E. Naranbhai Kanjibhai Gajera versus Vinodbhai Shankarbhai Patel

(i) In a recent decision in Naranbhai Kanjibhai Gajera (Naranbhai Kanjibhai Gajera versus Vinodbhai Shankarbhai Patel,2023 2 GLH 265), the Division Bench of this Court had an occasion to examine the question while dealing with the challenge to the order dated 09.02.2022 passed by the trial court in rejection of the suit under Order VII Rule 11 of CPC. The Bench also considered the order of Reference dated 13.12.2022 leading to this reference and noted that while making reference, the learned Single Judge did not record any contrary decision of the Division Bench rather referred to an order of issuance of notice in First Appeal No. 1667 of 2021 by the Division Bench, which was pending before this Court on the date of reference. The law laid down by the Apex Court in Ganpatlal Manjibhai Khatri (supra) had been followed by the subsequent Division Bench in Vijaybhai Shambhubhai Patel (supra) in the judgment and order dated 21.06.2021. The said judgment was assailed before the Apex Court and has been affirmed with the dismissal of the SLP vide judgment and order dated 21.06.2021. It was further held that earlier decision of the Division Bench dated 15.01.2017 in Amarben (supra), can be said to be per incuriam in view of the subsequent decision dated 21.06.2021 in Vijaybhai Shambhubhai Patel (Supra). The settled law with regard to the provision of Section 43 of the Tenancy Act, 1948 is that the execution of an agreement to transfer of a land is impermissible, if it is hit by the provisions of Section 43 of the Tenancy Act, 1948. The plaint, hence, can be rejected under Order VII, Rule 11 of the Code of Civil Procedure and there is no need of full-fledged trial.

(ii) The submission that even if an agreement to sell is hit by the bar of the provision of Section 43 of the Tenancy Act, 1948, the same would still be a triable issue, has been rejected.

7. In light of the above line of decisions of this Court, we are required to note, at this juncture, that a bare reading of the decision of the Division Bench in Amarben (supra), clearly shows that there was no discussion on the issue of validity of the agreement or maintainability of the suit rather in one paragraph only without going into the issues of the effect of the bar under Section 43 and the provision of the Specific Relief Act, 1963 as also the jurisdiction of the Civil Court, it was observed that various issues raised before this Court could be gone into by the trial court at the time of trying the suit.

8. We may note that no other contrary decision of this Court, has been placed before us on the issue being considered herein. We, thus, though are of opinion that the Division Bench judgment in Amarben (supra) could be held to be per incuriam and has rightly been held so by the subsequent Division Bench in Naranbhai Kanjibhai Gajera (supra) in the judgment and order dated 10.04.2023,but, in order to give a quietus to the controversy and to lay down a binding precedent of law, we proceed to enter into the reference.

[II] Framing of the Question of Reference:-

9. The main question which falls for our consideration is "whether the plaint is liable to rejected under Order VII Rule 11 of the CPC on the ground that suit for specific performance of contract based on an illegal or invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable"

10. At this stage, the ancillary issues raised by the learned Advocates of the first set appearing for the vendees , who are agitating that the above question is to be answered in Negative "No", are to be taken note of, inasmuch as, the contention of the learned Advocates is that without answering the following issues, answer to the question of reference is not possible.

11. The issues raised before us are :-

(i) Where an agreement contains a condition that prior to effecting the sale, the requisite permission of the competent authority under Section 43 or 63 of the Tenancy Act, 1948 shall be sought, such an agreement whether can be specifically enforced strictly in accordance thereof;

(ii) Where an agreement to sell contains condition that the restricted tenure shall first be converted to old tenure and, thereafter, such old tenure land shall be sold, be invalid under Section 43 of the Tenancy Act, 1948;

(iii) Where an agreement contains condition that the agricultural land shall first be converted to non-agricultural land and, thereafter, such non-agricultural land shall be sold, be invalid under Section 63 of the Tenancy Act, 1948;

(iv) Whether invalidity of agreement under Section 43 or 63 of the Tenancy Act, 1948 is limited to the said Act or does it absolves the parties from their reciprocal rights and obligations under the agreement and make the agreement unenforceable in Civil Court;

(v) Whether a plaint can be rejected on the ground of transaction being invalid under the Tenancy Act, 1948 when the alternative remedy of refund of earnest money or compensation or other remedy like permanent injunction, protection of possession, damages etc, have also been sought in the suit;

(vi) In absence of any order passed by the Competent Authority under The Gujarat Tenancy and Agricultural Land Act, 1948 (in short "the Tenancy Act, 1948), invalidating the agreement to sell, whether plaint can be rejected under Order VII Rule 11 of CPC or the suit for specific performance can be dismissed by the Civil Court, on the ground that the said agreement is invalid under Section 43 or 63 of the Tenancy Act, 1948;

(vii) Whether the Civil Court has jurisdiction to adjudicate the issue as to whether such agreement is or not invalid in view of the bar under Section 85 of the Tenancy Act, 1948;

12. In essence, the first set of the learned Advocates for the vendees, seek to impress upon us to frame the question of reference as under:-

"whether an agreement to sell in respect to agricultural land governed by Section 43 and/or Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948, is legally enforceable in the suit for specific performance of such agreement, which is executed without permission of the competent authority either under Section 43 or Section 63 or both, as the case may be, of the Tenancy Act, 1948.

13. The learned advocates have tried to impress upon us that the effect of the restriction on the transfers under both the provision of Section 43/Section 63 of the Tenancy Act, 1948 is to be examined by us to answer the question of reference. Various judgments dealing with the issues pertaining to Section 63 of the Tenancy Act, 1948, have been placed before us to impress upon that there is no difference between the restriction put by the legislature in two provisions of the same Act, namely Sections 43 and 63 of the Tenancy Act, 1948, and, as such, without considering the effect of both the provisions, it would not be possible for us to answer the reference.

14. In light of the above contentions, we find it apt to first consider the provisions of Section 43 and 63 of the Tenancy Act, 1948 to understand as to whether there is any similarity between two statutory provisions. Section 43 and Section 63 of the Tenancy Act, 1948 read as under :-

"Section 43. Restriction on transfers of land purchased or sold under this Act.-[(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I. [*], [32U, 43-1D or 88E] or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector]:

[Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant:

Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force:

Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions and restrictions as were applicable to such land or interest therein purchased by the tenant or the person.]

[(1A) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.]

[(1AA )] Notwithstanding anything contained in sub-section (1), it shall be lawful for such tenant] or a person to mortgage or create a charge on his interests in the land in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1983, the Agriculturists' Loans Act, 1984, or the Bombay Non-agriculturists' Loans Act, 1928, as in force in the State of Gujarat, or in favour of a bank or co-operative society, and without prejudice to any other remedy open to the State Government, bank or co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government, bank or co-operative society, as the case may be, to cause his interest in the land to be attached and sold and proceeds to be applied in payment of such loan.

Explanation.-For the purposes of this sub-section, "bank" means-

(a) the State Bank of India constituted under the State Bank of India Act, 1955;

(b) any subsidiary bank as defined in clause (k) of section 2 of the State Bank of India (Subsidiary Bank) Act, 1959;

(c) any corresponding new bank as defined in clause (d) of section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970;

(d) the Agricultural Refinance and Development Corporation, established under the Agricultural Refinance and Development Corporation Act, 1963.]

(1B) Nothing in sub-section (1) 4 [or(1AA)]shall apply to land purchased under section 32, 5 [32F or 64] by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage custom, agreement or decree or order of a court, held a transferable right in the tenancy of the land.]

[(1C)The land to which sub-section (1) applies and for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 for use of such land for a bonafide industrial purpose may, notwithstanding anything contained in sub-section (1) of this section, be sold without the previous sanction of the Collector under sub-section (1) but subject to payment of such amount as may be determined by the State Government under sub-section (1).]

(2) [Any transfer or partition, or any agreement of transfer, or any land or any interest therein] in contravention of sub-section (1) 7 [or sub-section (1C)] shall be invalid.]"

Section 63. Transfers to non-agriculturalists barred.-(1) Save as provided in this Act,-

(a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift exchange or lease of any land or interest therein, or

(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgage, 1 [or]

[(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein.] shall be valid in favour of a person who is not an agriculturist 3 [or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer]:

Provided that the Collector or an officer authorised by the 4 [State] Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, 5 [or for such agreement] on such conditions as may be prescribed:

[Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.]

[(1A) The State Government may, by notification in the Official Gazette, exempt from the provisions of sub-section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose and which is non-profitable in nature, for the use of such land in the field of health and education, subject to such conditions as may be specified therein.]

(2) Nothing in this section shall be deemed to [prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease, of] a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan 9 [or a person carrying on any allied pursuit].

(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society 11[or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947]].

(4) Nothing in section 63A shall apply to any sale made under sub-section (1).]"

15. A perusal of Sub-section (1) of Section 43 of the Tenancy Act, 1948 shows that the lands or interest therein of the categories provided in Sub-section (1), cannot be transferred or even agreed to be transferred, by an instrument in writing, by sale, gift, exchange, mortgage, lease or assigning, without the previous sanction of the Collector. There is, thus, clear prohibition in Section 43 against such transfer or execution of an agreement purporting to transfer such lands or interest therein as mentioned in Sub-section (1). Sub-section (1A) further provides that sanction under Sub-section (1) shall be given by the Collector in such circumstance and subject to such conditions, as may be prescribed by the State Government. It is, thus, clear that sanction by the Collector is on consideration of the circumstance of the particular case and on the conditions mentioned in the order of sanction. There are exceptions in Sub-section(1AA), (1B) and (1C) of Section 43 of the Tenancy Act to the requirement of seeking previous sanction of the Collector, to which we are not concerned with, as the specific requirement to seek exception from the requirement of sanction can very well be agitated in individual cases and shall have to be dealt with in the facts and circumstances of the particular case. We may note that Sub-section (1) of Section 43 is in two parts (i), the first part restricts transfer, and (ii) the second, restricts partition of such land or any interest therein as mentioned in sub-Section (1). The provisos providing exception to the requirement of partition of such land or any interest therein with the previous sanction of the Collector are also not relevant for us.

16. The only issue with which we are concerned in this matter is the circumstance, in which an instrument in writing seeking for transfer of land by sale has been executed without previous sanction of the Collector and the question is about the enforceability of such an agreement by the Civil Court in a suit for specific performance of agreement filed by a person in whose favour such a transfer is purported to be made.

17. Coming to Sub-section (2) of Section 43, it clearly provides that any transfer or partition, or any agreement of transfer, of any land or any interest therein, in contravention of Sub-section (1)(c), shall be invalid. The plain and simple reading of Sub-section (2) makes it clear that transfer or partition or an agreement to transfer such land or interest therein, mentioned in Sub-section (1), shall ipso facto be invalid. The result is that the transaction between the parties in contravention of Sub-section (1) of Section 43 would be hit by Sub-section (2) of Section 43 of the Tenancy Act, 1948.

18. Further, a careful reading of Section 63 indicates that Sub-section (1)(c) attaches invalidity to an agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein, which has been made in favour of a person, who is not an agriculturist, or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer. The first proviso to Sub-section (1), however, attaches validity to such transactions, and provides that the Collector or an officer authorized by the State Government, may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement, on such conditions, as may be prescribed. The second proviso to Sub-section (1), however, adds one more clarification to the grant of permission by the Collector, saying that where the land is being sold to a person, who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees, no such permission can be granted by the Collector. Sub-section (1A) of Section 63 confers power on the State Government by a notification in the Official Gazette, to exempt from provisions of Sub-section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose. Sub-sections(2),(3) and (4) are exemptions to the requirement of sanction by the Collector in Sub-section(1).

19. From the language employed in Section 63, it can, thus, be seen that it permits transfer of land or interest therein or agreement made by instrument in writing for the sale, gift, lease or mortgage of any land or interest therein, in favour of a person, who is not an agriculturist, subject to the permission being granted by the Collector on such conditions as may be prescribed. The result is that any such transfer or alienation or an agreement in writing for transfer of any land or interest therein, by an instrument in writing to a Non-agriculturist would be invalid, in case the permission of the Collector is not obtained. However, there is no specific mention in the main Sub-section (1) attaching invalidity to such instrument, if previous permission of the Collector is not obtained. The language employed in the first proviso to Sub-section (1) of Section 63 further indicates that even ex-post facto permission by the Collector would attach validity to the instrument executed in favour of a non-agriculturist.

20. In any case, there is clear difference in the language employed in the two sections namely, Section 43 and Section 63 as also the consequences of non-compliance of the conditions laid down therein. We are, thus, not impressed with the arguments of the learned Advocates that a common question of reference be formulated to see the legal enforceability of an agreement to sell in respect of an agricultural land both governed by Section 43 and/or Section 63 of the Tenancy Act, 1948, in a suit for specific performance of such an agreement to sell, which has been executed without permission of the competent authority, either under Section 43 or Section 63 or both, as the case may be.

21. Furthermore, in light of the controversy before us, as can be seen from the previous decisions of this Court noted hereinbefore, we do not find any reason to enlarge the scope of the reference and confine ourselves to the question of reference to examine "whether a plaint is liable to be rejected on the ground that the suit for specific performance of contract based on an illegal or invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable"

22. No other question, as sought to be raised, arise for our consideration, nor can be answered by us, within the limited scope of being a Reference Court. The ancillary issues raised before us, as noted hereinabove, however, would be dealt with during the course of discussion after noticing the arguments of the learned counsels for the parties.

[III] Arguments of the learned Advocates for the second set for the defendants:-

23. Mr. Dhaval C. Dave, learned Senior Counsel, assisted by Mr. Jigar M. Patel, learned advocate appearing for the rival parties, seeks to argue that the agreement to sell under Section 43 of the Tenancy Act is unenforceable in the eye of law and, hence, the Civil Court would not lend support to such an agreement executed in breach of the statutory provisions. Section 43, Sub-section (1) not only restricts transfer of land or any interest therein but also an agreement to transfer such land as provided in sub-section(1) without the previous sanction of the Collector, and makes such an instrument for sale etc. including an agreement, as invalid. It was urged that the transaction being in violation of law and the statute also providing for a consequence for such violation, the validity of an agreement, which is sought to be enforced through the machinery of the Court, being the foundation of the suit, the suit cannot be maintained.

24. It was argued that a combined reading of Section 2(j), 2(h) and Section 23 of the Indian Contract Act, 1872 further shows that an agreement, which is forbidden by law is void being unlawful and such an agreement, which is unenforceable by law is held to be void.

25. The requirement in Sub-section(1) of Section 43 of the Tenancy Act is to seek previous sanction of the Collector, which is not a mechanical exercise, rather the Collector will be required to apply its mind to the circumstances before it and the conditions, as may be prescribed by the State Government. The decision of the Collector for grant of sanction is the mandatory pre-condition for execution of an agreement for sale of such land or interest therein, as prescribed in Sub-section(1) of Section 43 of the Tenancy Act.

26. Besides relying upon the decisions of the Division Benches, as noted hereinbefore, learned Senior Counsel Mr.Dhaval C. Dave also relied upon the decisions of this Court in Ashwin Kumar Manilal Shah(Ashwin Kumar Manilal Shah vs. Chhotabhai Jethabhai Patel, AIR 2001 Guj 90), Markland Pvt. Ltd (Markland Pvt. Ltd and others vs. State of Gujarat, AIR 18989 Guj 44) and Rameshbhai Chaturbhai Prajapati (Rameshbhai Chaturbhai Prajapati and others vs. Minaxiben Wd/o of Rasiklal Tilaram and others, (2011) 2 GLH 760), to argue that the agreement whether void or voidable under the Indian Contract Act, no decree in any form whether conditional or unconditional could be passed, since the land in question is governed by the restrictions under Section 43 of the Tenancy Act, by which, without previous sanction of the Collector, no agreement with regard to the sale, mortgage etc. by any method of transfer, alienation, etc. could have been entered into. It is submitted that sub-section (2) of Section 43 bars any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of Sub-section (1) or Sub-section (1C) of Section 43 and held such an agreement to be Invalid. It was, thus, argued that when an agreement or transfer is made in contravention of the statutory provisions, the consequence thereof would be that the same is invalid. The same shall attract the provisions of Section 23 of the Indian Contract Act and the agreement to transfer/alienate/sell the land or any interest thereof would be barred by Section 43 of the Gujarat Tenancy Act, 1948 and, therefore, no error of law, much less of jurisdiction, can be said to be committed by the Civil Court in rejecting the plaint under Order VII, Rule 11 of the Code of Civil Procedure in such cases. If the agreement, which is the basis of the suit is invalid and unenforceable in law, there is no occasion for the Civil Court to proceed with the suit to see as to whether the decree of specific performance of such an agreement is to be granted or not.

[IV] Arguments of the learned Advocates of the First Set appearing (for the plaintiffs) arguing in support of the Maintainability of the Suit.

27. Mr. Devan Parikh, learned Senior Advocate assisted by Mr. Vimal Purohit learned advocate, in rebuttal, would submit that purposive interpretation of Section 43 is to be made and a line is to be drawn to interpret the fundamentals of Section 43, which restricts transfer of land or any interest therein by sale etc, without the previous sanction of the Collector. To understand the meaning of sale or transfer, the provisions of the Transfer of Property Act, 1882 are to be looked into. It was argued that if the agreement contains a condition that permission be taken first and the sale deed be executed thereafter, such an agreement does not create any right in the land nor any interest. Such an agreement neither can be said to be illegal nor can be invalidated. Section 43, which puts a restriction on the transfer, makes the agreement invalid only against the State Government. If the contract between inter se parties still subsists, there can be a conditional decree of specific performance of agreement by the Civil Court mandating the defendant/seller to fulfill his part of the contract. The condition in Section 43(1) and (2) which prohibits an agreement in writing being invalid without previous sanction of the Collector, does not put a complete bar or prohibition to enter into a transaction. The transaction is permissible, but only with the permission. As the provision does not prohibit transfer and makes it only invalid as a consequence of prohibition, the sale can be regularized on payment of premium as per the Government Resolutions. The intention of the Legislature is not to bar such transaction absolutely, but make the inalienable land ready for disposal after seeking sanction of the Collector, which can always be permitted, subject to payment of premium. The question, thus, would be as to whether the agreement is vitiated being forbidden by law or it is a tainted document, which can be cured by making it enforceable in law by removing the defect.

28. It was submitted that while entering into such agreement to transfer an inalienable land, where it is stated that the permission of the Collector would be taken by the vendor, there is no promise that the permission from the Collector be necessarily obtained. The agreement would be executable only once the permission is taken and as there cannot be any transfer without permission, the sale, therefore, cannot be said to be hit by Section 43.

29. The provisions of Section 70 and Section 85 of the Tenancy Act, 1948 were read over to assert that a conjoint reading of the said provisions along with Section 43 makes it clear that the question whether any transaction is hit by Section 43 is a question which would dependent upon more than one circumstances. The question as to whether such circumstance(s) exist(s) in the facts and circumstances of the case, can be decided only after the evidence are led by the parties.

30. The contention is that if the contract or fructification of the contract is dependent upon certain condition, there is no bar of filing the suit by a transferee. The result of the suit would be dependent upon the permission being granted and the suit itself will not fail. Sections 19 and 21 of the Transfer of Property Act permit conditional transfer. As conditional transfer is permitted, the suit under Section 9 of the Code of Civil Procedure can be filed seeking for decree of specific performance in case of conditional agreement. The contract is not hit by Section 43, as there is no transfer till the condition is fulfilled. The contingent sale or transfer or an agreement, which contains the condition to be fulfilled before the sale is effected would be outside the scope of Section 43, as such, if the contract does not contemplate transfer without permission. If no permission is granted, there would be no sale and, thus, in that case, Section 43 is not offended. If contingent sale is permitted, a contingent agreement can also be made.

31. Section 13 of the Specific Relief Act, 1963 has been pressed into service to assert the right of purchaser against vendor with no title or imperfect title even has been recognized to provide that where concurrence of other person is necessary for validating title, the vendor would be compelled to procure the same to bring validity to the agreement. The seller can be directed by the Court to fulfill the condition to execute the sale deed.

32. To substantiate the above submissions, reliance is placed on the following decisions:-

(1) Pravinbhai Bhailalbhai Gor vs. Rajivkumar Gupta, Collector, Vadodara, 1999(1) GLR 440.

(2) Mali Amrutlal Becharbhai vs. District Collector, Banaskantha, 1994 (2) GLR 1064.

(3) Ishverbhai Bhagubhai vs. Special Secretary, Revenue Department, 1984 (2) GLR 1219.

(4) Rajes Kanta Roy vs. Shanti Debi, 1957 AIR (SC) 255.

(5) P.K.Mohan Ram vs. B.N.Ananthachary, 2010(4) SCC 161.

(6) Food Corporation of India, Bhopal vs. Babulal Agarwal, Bhopal, 1998 AIR(MP) 23.

(7) Mt. Murtazai Begam vs. Dildar Ali, 1930 AIR (Oudh) 129.

(8) Srimant Chota Raja Saheb Mohitai vs.S. Sundaram Ayyar and others, 1936 AIR (PC) 131.

(9) Pestonjee Bhicajee Firm vs. Patrick H. Anderson, 1939 AIR (PC) 6.

(10)Chinna Reddy vs. Pujari Keshanna, AIR 1954 Hyd 185.

(11) Janabai Raghunath Khomane vs. Hirabai Malhari Atole, 2003 A I HC 1575.

33. Ms. Trusha M. Patel, learned advocate, adding to the above argument, would submit that the question is as to whether in absence of any order passed by the competent authority under the Tenancy Act, 1948 invalidating the agreement to sell, the plaint can be rejected or the suit for specific performance can be dismissed by the Civil Court, merely on the ground that the said agreement is invalid under Section 43 of the Tenancy Act. She tries to impress upon us by submitting that when the alternative remedy of refund of earnest money or compensation, or other remedies, such as permanent injunction, protection of possession, damages etc. have been sought in the suit while seeking the decree of specific performance of agreement, the plaint cannot be rejected on the ground of the transaction being invalid under the Tenancy Act. For rejection of the plaint, under Order VII, Rule 11 of the Code of Civil Procedure, the suit has to be barred and not the remedy sought in the said suit. The plaint cannot be rejected where other reliefs have been sought, which can only be granted by the Civil Court. Partial rejection of the plaint is not permissible.

34. It was further argued that Section 65 of the India Contract Act,1872, puts an obligation on a person, who has received advantage under a void contract or a contract that becomes void. In view of the said provision, in a suit where alternative relief of refund of sale consideration is sought or the reliefs of compensation and damages are prayed, it would be maintainable and plaint cannot be rejected under Order VII, Rule 11 of the Code of Civil Procedure. Reference has been made to Section 65 of the Transfer of Property Act to assert that the said provision recognizes the rights and liabilities of the buyer and seller in absence of a contract to the contrary and seller is bound to disclose to the buyer any material defect in the property or his seller's title thereto or which the seller is and the buyer is not aware, and which the buyer could not, with ordinary care, discover.

35. It was urged that obligation of the seller to ensure the fulfillment of conditions to provide validity to the transfer by seeking permission of the Collector under Section 43, thus, cannot be ignored in a transaction where the condition for transfer is indicated, as the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has the power to transfer the same. Benefit of the contract shall be annexed to and shall go with the interest of the transferee, and as such, may be enforced by other person in whom that interest is for the whole or in part thereto, from time to time, vested.

36. It was further argued that the question as to whether there is a breach of Section 43 of the Tenancy Act, 1948 to make the agreement to sell invalid, can be gone into only at the time of trial. In view of Section 85 and 85A, the Civil Court has no jurisdiction to examine as to whether the contract is in breach of the provisions of the Tenancy Act or not. In case, the Civil Court reaches at a conclusion that the issue is required to be settled, decided or dealt with by the competent authority under the Tenancy Act, it has to stay the suit and refer such issues to such competent authority for determination. Section 85A of the Tenancy Act provides mechanism, if in a suit, the validity of the contract is questioned in view of the provisions of the Tenancy Act. The conjoint reading of Section 85, 85A read with Section 84C makes it clear that the question whether the land is of restricted tenure or whether on account of such restrictions, the sale is invalid or not, is to be decided by the Collector. The Civil Court, therefore, cannot be said to have jurisdiction to examine this question and reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure holding the transaction as barred.

37. Reliance is placed on the decisions of the Apex Court in the case of Gundaji Satwaji Shinde (Gundaji Satwaji Shinde vs. Ramchandra Bhikaji Joshi, 1979 (2) SCC 495) wherein it is held that in a suit claiming for specific performance of contract, on the question as to whether the sale is hit by Section 63 of the Tenancy Act, 1948, i.e. whether the plaintiff was an agriculturist or not, the jurisdiction of the Civil Court is totally ousted and it is duty bound to refer the issue to the competent authority, as there is exclusive jurisdiction of Mamlatdar to decide such issue.

38. Reliance is further placed on the judgement of the Apex Court in the case of Parmar Kanaksinh Bhagwansinh (Parmar Kanaksinh Bhagwansinh vs. Makwana Shanabhai Bhikhabhai and Makwana Prabhatbhai Bhikhabhai, 1995 (2) SCC 501) and the decision of this Court in the case of Bhikumiya Gurumiya (Bhikumiya Gurumiya vs. Usmankhan Misrikhan Pathan since deceased through legal heirs in Special Civil Application No. 26652 of 2006) to substantiate the above point.

39. It was further argued that there is no complete bar against the transfer as the transfer could be entered into with the permission of the Collector. Implied covenant on the part of the vendor with a condition to do all things necessary to effect the transfer of the property regarding which he has agreed to sell the same to the vendor, cannot be said to be illegal, conditional decree of specific performance can be granted. The fact that the Collector may refuse to grant sanction to the sale or the plaintiff may not be able to enforce the decree for specific performance of contract, cannot be a reason for refusal by the Court to grant a decree of specific performance of agreement. If in a case of grant of conditional decree of specific performance of contract, the competent authority refuses to grant permission for sale, the decree holder may not be in a position to enforce the decree, but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. The transaction, in violation of Section 43, is said to be invalid and not void. A valid transaction per se may not be invalid, but it will be invalid only when it is declared to be so. It remains valid till it is so declared. The "invalid contract" is not interchangeable with "null and void contract" rather, at the most, can be said to be voidable contract, which is to be declared as such by a Court of law.

40. Reliance is placed on the decisions of the Apex Court in the case of Vishwa Nath Sharma (Vishwa Nath Sharma vs. Shyam Shanker Goela, 2007(10 SCC 595)  and the decision of this Court in the case of Mavji Dhorji (Mavji Dhorji and others vs. State of Gujarat and another, 1994 (1) GLH 20) to substantiate the above points.

41. It was urged that Section 13 of the Specific Relief Act even removes cloak on the title of the vendor, subsequent to which the specific performance decree can be granted and, hence, even if the permission under Section 43 was not obtained at the time of execution of the agreement to sell, and if later on the same is obtained, the prospective purchaser would be entitled to specific performance of the decree. Reliance is placed on the decision of the Division Bench of this Court in the case of Abdul Satar Haji Ibrahim (Abdul Satar Haji Ibrahim vs. Shah Manilal Talakchand, AIR 1970 Guj 12). Heavy reliance has been placed on the decision of the Apex Court in Ferrodous Estates (Pvt.) Ltd. (Ferrodous Estates (Pvt.) Ltd. vs. P. Gopirathnam (Dead), AIR 2020 SC 5041) to urge that the matter will have to be considered taking into consideration of the rights of the seller and to see as to whether the prohibition under Section 43 is for transferring the land and, consequently, to declare that any violation of law shall make the transfer null and void. The question of valid and invalid transaction will apply only regarding the completed transaction. In the case of proposed transfer, the question of considering the validity or invalidity does not arise and, therefore, enforcement of agreement for sale is not a bar.

42. It was urged that in Ferrodous Estates (Pvt.) (supra) the question was whether Section 6 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 prohibited both the proposed transfer and completed transfer. On consideration of the issues, it was urged therein that the decree or specific performance of contract cannot be granted conditionally upon vendor satisfying certain conditions, if it was not part of the agreement. The result was that in such proposed transactions, wherein certain conditions to be satisfied by the vendor have been set in place, a conditional decree for specific performance of such a contract cannot be refused. In any case, these issues, can only be decided at the stage of evidence and only after a full-fledged trial, by framing issues with regard to validity of the agreement under Section 63, the Civil Court will be able to settle the controversy.

43. Much emphasis has been laid on the assertion that any defective transaction will have to be invalidated by exercising the powers in that respect by the competent authority, which is Mamlatdar under Section 85A of the Tenancy Act, 1948.

44. It was further argued that each and every transaction in breach of Section 43 is not necessarily to be invalidated by the competent authorities, inasmuch as, there are exceptions to such exercise. Even in cases where the transaction is in violation of Section 43 or Section 63, the same may not be invalid, as it is settled principle of law that such transaction need not be invalidated at vendor's instance. A vendor, after having pocketed the money, has no locus to contend that the transaction was invalid. If the tenancy authorities cannot invalidate such transactions at the instance of the vendor, there is no reason for the Civil Court to entertain the application under Order VII, Rule 11 filed by the vendor raising such a dishonest plea. Reliance is placed on the decision of the Division Bench of this Court (holding otherwise)

45. It was argued by Ms.Trusha Patel, learned advocate that the decisions noted hereinbefore, wherein it was held that the suit would have to be rejected at the stage of Order VII, Rule 11 as the agreement hit by Section 43 of the Tenancy Act, 1948 is unenforceable in law, did not lay down correct law as the provisions of the Transfer of Property Act, Specific Relief Act and various decisions of the Apex Court and this Court, as noted hereinbefore, have not been taken into consideration in the correct perspective. These decisions are to be held as not laying down a good law. In any case, the vendee cannot be put to prejudice for the act of the vendor in execution of an agreement to sell in violation of Section 43 who shall have to be forced to refund the amount paid by the vendee. Such a direction cannot be issued in the proceedings under Section 84C of the Tenancy Act by the Mamlatdar. The Civil Court is not supposed to pass any decree for refund of consideration, in case the plaint is rejected or returned by it under Order VII, Rule 11 of the Code of Civil Procedure. The result is that the vendee would be non-suited, as he would not have any forum to seek even the refund of sale consideration.

46. Placing the objects and reasons of amendment of the Tenancy Act, 1948 by the Gujarat Tenancy Laws (Amendment) Act, 1977, it was argued by Ms. Trusha Patel, learned advocate that the object and purpose of the bill seeking to amend Sections 43 and 63 of the then Bombay Tenancy and Agricultural Lands Act, 1948 ( for the Bombay area of the State of Gujarat), was to apply restrictions imposed by the aforesaid sections on transfer of lands to agreement of transfer as also, with a view to preventing the circumvention of the aforesaid provisions of law by effecting the agreements of transfer and then resorting to part performance of such agreements under Section 53A of the Transfer of Property Act, 1882. However, a careful reading of the said object indicates that the conditional agreements are neither restricted nor made invalid either under Sections 43 or 63 of the Tenancy Act, 1948, inasmuch as, the conditional agreement will not be an instrument of transfer, unless and until the conditions therein seeking for permission of the Collector before executing the documents of sale, have been fulfilled.

47. In the crux, the contention of the learned Advocate is that the Civil Court can pass a conditional decree mandating the vendor to seek permission of the Collector and by performing his part of the contract to execute the sale deed. This conditional decree of specific performance of agreement, which has not been declared invalid by any Court of law, can very well be executed on fulfillment of the conditions prescribed therein. However, in case the Civil Court does not find any reason to exercise its discretion to grant the decree of specific performance of agreement, it can always grant the alternative relief of refund of consideration paid under the agreement as also the damages claimed. In any case, all these issues can be adjudicated only in the event of holding of a full-fledged trial. In no eventuality, the suit can be dismissed under Order VII, Rule 11 of the Code of Civil Procedure.

48. Mr. Maulik G. Nanavati, learned advocate adding to the submissions of Ms. Trusha Patel would submit that the question of law and the reference can be framed as under:-

"Whether the suit for specific performance of an agreement to transfer a restricted tenure land, whether containing an express condition of obtaining permission from competent authority prior to execution of a deed of conveyance as contemplated by Section 43 of the Gujarat Tenancy and Agricultural lands Act, 1948 or not containing such stipulation, is liable to be or can be rejected by the Civil Court by entertaining an application filed by the tenant (defendant) under Order VII Rule 11 of the Code of Civil Procedure, 1908 on the ground that the suit is barred by law"

49. The contention is that the issue is whether an agreement, whereby tenant agrees to transfer restricted tenure land after obtaining sanction from the competent authority is barred or prohibited by Section 43 and can be held as illegal. The contention is that on a plain reading of Section 43, it can be seen that Section 43 does not bar or prohibit, rather enables the tenant of restricted tenancy land to transfer the same on certain conditions. The provisions though couched negatively, but it is essentially an enabling provision, permitting and supporting transfer or conveyance of land by the tenant on satisfying the conditions mentioned therein. Reading absolute prohibition on alienation or any other transfer by the tenant of the restricted tenure land held by him and importing a bar not otherwise intended or provided by the Legislature would be contrary to the law of statutory interpretation of the plain language of the statute. Consequence of breach provided in Section 43 also does not make any transaction per se as null and void. Such transaction is not intended by the legislature to be wholly illegal, so as to be of no legal effect or a nullity in the eye of law.

50. A conjoined reading of Sub-section (1) and (2) of Section 43 gives a clear indication that the Legislature did not intend to make the transaction null and void. The word "invalid" in Sub-section (2) of Section 43 cannot be read over as inter-changeable with "null and void". The use of word "invalid" is a conscious decision of the legislature and "invalid" has a separate meaning than "illegal". Reliance is placed on the decision of Laurance Arthur Adamson (Laurance Arthur Adamson vs. Melbourne & Metropolitan Board of Works, AIR 1929 PC 181) to urge that the words used in a statute must be taken in their legal sense unless the contrary intention appears. The legislature has chosen to use the word "invalid" in contradistinction to the word "nullity" or "null and void", as employed in other statutes. Once the Legislature has chosen to use the term "invalid" in preference to "null and void", the term should be understood as being distinct from "null and void" or "nullity" and such a differential use is to be duly respected by the Court, while reading and interpreting the statutory provision. It was argued that the statutory provision as also the statute must be read as a whole keeping in mind the intention of the legislature to assign meaning to the words in the Statute.

51. It is further argued that Section 43 also provides a condition for need of obtaining prior permission for transactions such as sale, gift, etc. as also agreement to make such transfer of the land of restricted tenure. The consummated transfer and the executory transfer (inchoate transfer) are not treated differently by the legislature and as a corollary must be dealt with in a like manner by the Court of law. If a completed sale without obtaining permission from the Collector could not be viewed to be illegal, there exists no justifiable reason to treat an agreement to sell without obtaining prior permission differently and to hold it to be illegal or void. It was argued that if a consummated sale is treated as invalid, the inchoate transaction (agreement to sell) should also be treated as invalid and not illegal. Giving a discriminatory treatment to the different species of transactions detailed in the Section would be contrary to the elementary rules of Statutory interpretation and would amount to doing injustice to the language of the Statute.

52. Elaborating the said argument, it was urged that the Government of Gujarat has issued resolutions providing for validating the transfer made in violation of Section 43, i.e. such transfers, which are to be made without obtaining prior permission, on due verification of genuineness of transaction, to rule out the element of coercion, duress, fraud etc., permission validating the transaction is granted by the Government on payment of premium. This act of the State Government of validating the transaction, by itself, is sufficient indica that a transaction made by parties without obtaining prior permission envisaged in Section 43 is not illegal or void. Reference has been made to the decision of the Apex Court in Nagarajan (Nagarajan and Ors. v. State of Karnataka and Ors,(1979) 4 SCC 507) to submit that though it is settled position of law that anything illegal cannot be made legal, but an irregular act can be regularised or an invalid act can be validated, by removing a deficiency or curing the defect. Constitutional Courts have recognised and approved policy of the Government to grant ipso facto permission for validating completed transaction of transfer of land.

53. Coming to the object of prescribing condition for obtaining permission from the Government authority prior to making a transfer of restricted tenancy land, it was argued by Mr. Maulik Nanavati, learned Advocate that there are two objectives for the said provision; the first is to discourage oppression of gullible and illiterate tenants at the hands of influential and affluent person intending to deprive them of the agrarian land. The restriction is essentially part of 'land reform policy' and aims to protect the tenants from being forcibly or fraudulently divested of their right, title and interest in the agricultural land. Requirement of obtaining prior permission acts as a check to verification and confirmation of the free will of the tenant and desirability of such transfer or conveyance. The second is to avoid monetization of restricted tenure land by the tiller, who was made owner of the said land as part of agrarian reform and benevolent legislative policy. If the tenant intends not to till the land and instead put the land to non-agricultural use or transfer the land for monetary gain, he is required to pay premium determined as a percentage of the prevailing market value of the land. The idea is to neutralize the benevolent benefit extended to the tiller, if he desires not to continue with the benefit, and instead chooses to put the agricultural land to non-agricultural use.

54. It was urged that in essence, intention of the legislature is not to prohibit transfer of the land on the amendments brought in the year 1977. It was urged that the primary objective of the amendment and inclusion of the agreement to sell under Section 43 is to obviate such frustration of the noble intent and object of protecting the possession of agrarian land in the hands of the tenant. The amendment does not intend to make an agreement between the parties agreeing to transfer the land after obtaining requisite permission per se illegal. The legislature did not propose or intend to make transfer, with or without express condition of obtaining sanction on a high pedestal than a completed transfer and declare it alone to be illegal.

55. It was, thus, argued that, an agreements in violation of Section 43 remain legal and valid and can be regularized as per the policies of the State and are subject to scrutiny under the said policy, till they are declared illegal or invalid by a competent Court. It was urged that the agreement to sell of the restricted tenure land, prohibited under Section 43 is otherwise an enforceable agreement, it may have the effect of not being valid, but it is not denuded of the legal character of enforceability. Enforceability or non-enforceability of such an instrument can only be decided by the Civil Court and the revenue authorities on a plain reading of the statutory provisions under Section 43, 84C, 85 of the Tenancy Act do not have jurisdiction, authority, or legal competence to pronounce on the enforceability part of the documents. The result is that the Civil Court cannot reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure by holding the agreement as unenforceable.

56. It was urged that the instrument or the agreement brings about certain contractual relationship between the two parties. There is codification of certain obligations by both the parties. For enforcement of such obligation, suit is laid before the Civil Court. Upon the plaintiff or the beneficiary filing the suit for specific performance of the obligations to be discharged by the defendant, if the defendant has to raise objection as regards the fairness/correctness or otherwise of the transaction it is only the Civil Court, which will be competent to pronounce that the agreements/instruments, reducing in writing the arrangement between the parties as valid or not vis-a-vis parties. The question as to the enforceability of the agreement/instrument between the parties, according to the learned advocate, is the question which can only be decided by the Civil Court.

57. It was vehemently reiterated that the instrument/agreement, when appended with the plaint does not bear on its forehead the stamp of invalidity. The instrument contains series of conditions, one of them is for the vendor to obtain permission of the competent authority and, thereafter complete the transfer. In case of rejection of plaint, the plaintiff/vendee would be even deprived of seeking the relief of compensation/ damages for breach of performance of the contract on the part of the vendor. A reference has been made to various decisions, in general, to submit that the Courts have found that contract between the parties, whereby they agreed to transfer the land after obtaining prior permission of competent authority is not illegal or unenforceable and have upheld the maintainability of suit seeking specific performance of the conditions contained in the agreement anterior to the execution of the sale deed.

The decision of the Apex Court in State of Kerala vs. M.K Kunhikannan Nambiar Manjeri Manikoth, Naduvil, 1996(1) SCC 435 has been placed before us to submit that it is held therein that mere use of word "void" is not determinative of its legal impact. The word "void" is a relative rather than an absolute meaning. It only conveys that the order is invalid or illegal. However, there are degrees of validity depending upon the gravity of the infirmity, as to whether it is fundamental or otherwise. If any act or decision or an instrument is invalid, it has to be said so, and it subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction. until its validity is challenged, its legality is preserved.

58. In the end, it was reiterated that at the stage of Order VII, Rule 11, the Code of Civil Procedure, a plaint cannot be rejected in part. Even if the relief for specific performance is not granted by the Court on merits, the suit will survive for the prayer of damages/refund of money. Section 24 of the Specific Relief Act bars the right of the plaintiff to file a suit for compensation for breach of contract on dismissal of the suit for Specific performance. The rejection of the suit is deemed to be a decree and in view of Section 2(2) of the Code of Civil Procedure, in case of any declaration made by this Court that agreement to sell is illegal and void and the suit for enforcement of such an agreement is barred by law and, hence, is liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure, the plaintiff would be rendered remediless. It was urged that such a declaration may not be granted keeping in view the principle that "No act of Court can prejudice a party'( Actus Curiae Neminem Gravabit)

59. Mr. Dhaval D. Vyas, learned advocate, adding the above noted contentions of the learned Advocates for the vendees, would submit that it is to be kept in mind as to what would be the stage of deciding the question as to enforceability of the agreement in a suit for specific performance of an agreement hit by Section 43 of the Tenancy Act, 1948, or whether it is at the stage of Order VII, Rule 11 of the Code of Civil Procedure. It was contended that presuming that the agreement is void, in the light of Section 70 of the Indian Contract Act, it would be the duty of the vendor/defendant to compensate the Vendee for his non-gratuitous act. It is the vendor who has to put it before the Court that the contract is invalid, the defence in the nature of Written statement under Order VIII, Rule 2 is to be made categorically stating that whether the transaction is void or voidable by law non-gratuitous. Bare denial of a valid contract in the written statement by the defendant would not be a denial of the legality or sufficiency in law of such contract in view of Order VI, Rule 8 of the Code of Civil Procedure. Further, the plaintiff is not bound to make any statement as to a matter of fact as to whether the burden of proof lies upon the other side. No statement of fact as to a matter, which the law presumes in his favour, is to be brought up in the pleading. The question as to whether a contract is illegal or unenforceable in law being said to be void or it is forbidden by law, as per Section 23 of the Contract Act, cannot, thus, be seen at the stage of Order VII, Rule 11 of the Code of Civil Procedure. The Civil Court, on prima facie, consideration of the plaint and the documents filed therewith, will not be able to reach at the conclusion, without framing of the issue and without leading evidence that it can be culled out from the reading of the plaint on its face value that the suit is barred being based on an agreement hit by Section 43 of the Tenancy Act, 1948. The Civil Court, thus, cannot reject the suit under Order VII, Rule 11 of the Code of Civil Procedure, mandatorily.

60. The decisions of the Apex Court in Sita Ram (Sita Ram vs. Radhabai and others, AIR 1968 SC 534), Firm of Pratapchand Nopaji (Firm of Pratapchand Nopaji vs. Firm of Kotrike Venkata Setty & sons and others, (1975)2 SCC 208), Kalyanpur Lime Works Ltd. (Kalyanpur Lime Works Ltd. vs State of Bihar and another, AIR 1954 SC 165) have been relied upon to argue that the principle that the Courts will refuse to enforce an illegal agreement at the instance of a person, who himself is a party to the illegality or fraud, has exceptions, as narrated therein in paragraph No. "11" of Sita Ram (supra) as under:-

"11. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari deucto portior est conditio defendentis. But as stated in Anson's 'Principles of the English Law of Contracts', 22nd End., p. 343: 'there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which be has entered cases to which the maxim does not apply. They fall into three classes: (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (b) where the plaintiff is not in pari delicto with the defendant. (c) where the plaintiff does not have to rely on the illegality to make out his claim.'"

61. It was submitted that it is well established that object of an agreement cannot be said to be forbidden or unlawful, merely because the agreement results in what is known as "void" contract. A void agreement, coupled with other facts, may become part of a transaction, which creates legal right. The real question is whether the agreement between the parties is so connected with the execution of an object prohibited by a law so as to be hit by Section 23 of the Contract Act. It was argued that the object of the agreement in question, in the instant case, to transfer a New Tenure land cannot be said to be prohibited by law, inasmuch as, Section 43 of the Tenancy Act, 1948 itself permits such transfer with the previous sanction of the Collector. As the object of the agreement itself cannot be said to be forbidden by law or unlawful, merely because of the language employed in Section 43(2), the agreement without the previous sanction of the Collector cannot be said to be a void agreement so as to empower the Civil Court to reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure.

[V]-Rejoinder by the learned Advocates of the second set, for the defendants

62. In another set of submissions, Mr. Amit Thakkar, learned advocate, in rebuttal of the above contentions, would submit that the agreement without previous sanction of the Collector, which is the mandatory condition culled out from the plain reading of Sub-sections(1) and (2) of Section 43 of the Tenancy Act, 1948, is hit by the said provisions and is invalid from its very inception, and cannot be enforced. The language of Section 43 reveals the intention of the legislature to prevent the mischief and to confer the protection to the beneficiary under the Tenancy Act, 1948. The scope and ambit of Section 43 and Section 63 has been discussed in Vinodchandra Sakarlal Kapadia (Vinodchandra Sakarlal Kapadia vs. State of Gujarat and others, (2020)18 SCC 144). The agreement to transfer any land, if it is hit by the provisions of Section 43 of the Tenancy Act, the plaint can be rejected and there is no need for full-fledged trial. The contention of contingent agreement, subject to obtaining permission, would arise, provided the agreement itself is valid in law and invalid or a void agreement cannot be validated based on any contingency of obtaining subsequent permission. There is no provision in the Tenancy Act permitting the Collector to validate the agreement, which is hit by Section 43, by granting ex post facto sanction. No conditional decree, subject to obtaining permission, can be granted in absence of a valid contract. The plaintiff has no cause of action to institute the suit and, as such, it is required to be rejected under Order VII, Rule 11 of the Code of Civil Procedure. The suit seeking enforcement of an agreement, hit by Section 43 of the Tenancy Act being barred by law, the plaint is bound to be rejected in view of the mandatory provisions of Order VII, Rule 11 of the Code of Civil Procedure. The Court will not lend its aid to a man, who brings a cause of action based upon immoral or illegal act. If the decree is granted in favour of the plaintiff on the basis of an illegal agreement, which is hit by the Statute, it will be rather active assistance of the Court in enforcing an agreement, which is otherwise contrary to law. If on a meaningful reading of the plaint, it is found that the suit does not disclose the right to sue, the Court would be justified in exercising the power under Order VII, Rule 11 of the Code of Civil Procedure, the stage of entertaining such an application would be immaterial.

63. In support of the said submissions, reliance has been placed on the following citations:

i. Ganpatbhai Manjibhai Khatri vs. Manguben Babaji Thakor, 2019 JX(Guj) 1122(DB).

ii. Vijay Shambhubhai Patel vs. Shailaben Dahyalbhai, First Appeal No. 1556/2021(DB).

iii. Mukesh Keshavlal Patel vs. Natwarlal Savabhai Prajapati, 2016 SCC OnLine (Guj) 5124.

iv. Hasvantbhai Chhanubhai Dalal vs. Adesinh Mansinh Raval and others,  2019 (2) GLH 358.

v. Narayanamma & Ors. vs. Govindappa and others, 2019 (19) SCC 42.

vi. Dahiben vs. Arvindbhai Bhanusali (Gajara) dead through LHS., 2020 (7) SCC 366.

vii. Rajenbhai Baldevbhai Shah vs. Baijiben Kabhai Patanvadia & others, 2009 (2) GLR 1784.

viii. Vinodchandra Sakarlal Kapadia vs. State of Gujarat and others, 2020 (18) SCC 144.

ix. Ashwinkumar Manilal Shah vs. Chhotabhai Jethabhai Patel, AIR 2001 GUJ 90(DB).

x. Himatrao ukha Mali & Ors. vs. Popat Devram Patil & Ors, 1999 AIR (Bom.)10.

xi. Rameshbhai Chaturbhai Prajapati vs. Minaxiben wd/o Rasiklal Tilakram, 2011 (2) GLH 760.

[VI]-Stand of the State Government

64. Ms. Manisha Lavkumar, learned Government Pleader representing the State would submit that a brief look to the historical evolution of Tenancy Law would be helpful in understanding the intent and applicability of Section 43 of the Tenancy Act, 1948, in the context of the question of reference. Agriculture is and has historically been the mainstay in the Country. The Directive Principles of State policy mandates that ownership and control of material resources of the community are so distributed as to best subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. The first comprehensive enactment regulating tenancy was enacted in the year 1939, namely the Bombay Tenancy Act, 1939, which provided for security of tenure and fixing of rent and created class of tenants known as 'protected tenants'. Post independence, far more extensive reforms by way of the Bombay Tenancy and Agricultural Lands Act, 1948 came to be enacted with a view to remove the intermediary or an absentee landlord and to bring the tenant in direct contact with the State. This Act had been amended from time to time as part of agrarian reforms. By way of Amendment Act No. 13 of 1956, w.e.f. 01.08.1956, the tiller became the owner of the land by compulsory sale. By way of Amendment Act No. 31 of 1965, relief was provided to tenant purchaser who failed to pay the purchase price.

65. By the Amendment Act No. 30 of 1977, 'agreement to sell' was specifically incorporated in the restrictions contained in Section 43, restricting transfer of land without previous sanction of the Collector. The Statement of Object and reasons of the Amendment Act of 1977 reflects that the amendment was enacted with a view to apply the restrictions imposed by Section 43 on transfer of lands to agreements of transfer also, with a view to prevent circumvention of the said provisions of law, by entering agreements to transfer and then resorting to part performance of such agreement under Section 53A of the Transfer of Property Act, 1882. The Tenancy Act'1948 has, therefore, evolved as a benevolent piece of legislation with a view to govern the relations between landlords and tenants. The actual tillers of the land (tenants) were often vulnerable to exploitation and their social and economic conditions suffered on account of neglect by the landlords. It was submitted that as part of broader moment for land reforms in the Country post-independence, to address the issue of historical inequalities in land ownership and improve the conditions of tenants, the Tenancy Act, 1948 came to be enacted.

66. As per the scheme of the Gujarat Tenancy and Agricultural Lands Act, 1948 with the substitution of 'Bombay' by 'Gujarat Act No. 15 of 2011' dated 13.04.2011 and deemed to have been substituted on 01.05.1960, the Act is a complete Code in itself, provisions whereof are with respect to identification of tenancy, protection of tenants, transfer of ownership of land from the landlord to tenant, fixation of price, ceiling etc. The Revenue Authorities under the Tenancy Act are only authorities empowered to adjudicate on transfer, sale, gift, exchange, mortgage, lease or assignment made with respect to any land under the provisions of the Tenancy Act. Under the scheme of the Act, the tenant becomes owner of the land by operation of Statute, i.e. the provisions prescribed for conferment of title on the tenants such as fixation of price by the tribunal based on rent/assessment. The State enters into a relationship of the landlord and tenant ensuring that the tenant tilling the land on the date specified is protected. A statutory embargo is, therefore, put on the transfer of land, settled with the tenant under the Act, with a view to ensure that such land is utilized by the tenant for the same purpose and not transferred to a third party to ensure monetary benefits which would be against the principle and intent of the legislation. Under the scheme of Section 43 of the Tenancy Act, 1948, previous sanction of the Collector is mandatory. Both, the instrument of transfer in any manner as also the agreement of transfer of any land or interest therein, in contravention of the provisions therein, shall be invalid.

67. Reference has been made to the decision of this Court in Vijaybhai Shambhubhai Patel (supra) to substantiate the submission that the agreement to sell being hit by Section 43 of the Tenancy Act would be unenforceable in law and hence, the Civil Court would be justified in rejecting the plaint under Order VII Rule 11 CPC. The decision of the Apex Court in Dahiben (Dahiben vs. Arvindbhai Bhanusali (Gajara) dead through LHS., 2020 (7) SCC 366.) has been pressed into service to urge that if the averments in the plaint are contrary to a statutory law, the plaint is liable to be rejected. The Civil Court has no option but to reject the plaint as it cannot condone any illegality or irregularity to proceed with the trial, in view of statutory embargo created under Section 43 of the Tenancy Act. The Civil Court cannot be called upon to enforce performance of a contract which is invalid or forbidden in law. The decree, if any, in favour of the plaintiff passed on the basis of an illegal agreement would be hit by the Statute and the Civil Court will not be rendering active assistance in enforcing an agreement which is impermissible being contrary to law.

68. It was vehemently argued that the language employed in Section 43 makes it clear that no instrument in writing shall be executed for transfer of a land governed by Section 43 of the Act in absence of the prior permission of the Collector or the competent authority in that regard, no party, as such, shall be competent to execute agreement for sale. Such agreement, at the time of its execution itself is invalid and unenforceable in law. Invalid agreement as stipulated in Section 43 is, therefore, incapable of being specifically enforced. Specific performance decree of an agreement to sell in breach of Section 43 cannot be obtained with the direction to the vendor to obtain required consent or permission of the competent authority/Collector. The agreement to sell being a document which is the basis of the suit, the Civil Court will have to outrightly reject the plaint as it would not lend its support to a document which is in breach of statutory provision. Section 43 mandates prior permission and the agreement to sell could not have been entered into by both the parties (vendor or vendee), to seek ex-post facto permission.

69. It was argued that the submission of the learned advocates appearing for the vendees that such an agreement to sell is not denuded of its legal character of enforceability is wholly misplaced. If an instrument is unenforceable in the eye of law, reciprocal promises made by parties cannot be examined in the context of such an invalid instrument. It is only when prior permission has been obtained from the Collector that the transferors and transferee are permitted in law to enter into an agreement to sell and the agreement would have enforceability thereof and only then the mutually reciprocal terms and conditions of the agreement are consequential. The pronouncement of the Civil Court vis-a-vis the obligations of the parties and the enforceability of the instrument will come only if law permits them to enter into the agreement to sell. When the statutory stipulation imposes a fetter on entering into an agreement to sell without prior permission, the Civil Court would not enter into the exercise of examining the issues relating to fairness or genuineness of the instrument.

70. It was further argued that since ex-post facto permission or sanction by the Collector is impermissible, the decree of the Court would be otiose and the trial would be an exercise in futility as the judgment or decree of the Court would be of no significance. The 'sanction' as mandated under Section 43 of the Tenancy Act is materially different from 'concurrence' referred to under Section 13(b) of the Specific Relief Act, 1963. Specific performance cannot be granted where the concurrence cannot be mandated by law. The sanctioning authority cannot be compelled by the Court to grant sanction when the agreement is in violation of statutory provision. In absence of any legal right vested in the vendee/plaintiff to compel the Collector to mandatorily grant sanction stipulated under Section 43, a decree for specific performance cannot be granted. The sanction is mandatory and absence of the same makes the contract invalid and unenforceable.

71. Reliance is placed on the decision of the Apex Court in Raman (Dead) by Legal Representatives (Raman (Dead) by Legal Representatives vs. R. Natarajan, (2022) 10 SCC 143) to submit that it was held therein that limited right conferred by Section 13(1)(b) of the Specific Relief Act is not available when there is no legal right with the defendant to compel thirty party to convey land. Further reliance is placed on the decision of the Apex Court in Narayanamma (Narayanamma & Ors. vs.Govindappa and others, 2019 (19) SCC 42.) to impress upon us that the Civil Court will not grant active assistance to party seeking specific performance of illegal contract. It was urged that the reliance placed on the decision of the Apex Court in Ferrodous Estates (supra) is misplaced, inasmuch as, in the said case the statutory provisions which were subject matter of consideration did not prescribe any prohibition of execution of agreement for sale. Moreover, the Apex Court in G.T.Girish (G.T.Girish vs. Y. Subba Raju - (2022) 12 SCC 321) has distinguished the decision in Ferrodous Estates (supra) to hold that when there is no absolute prohibition, but only a permission or approval is required, such contract is enforceable. However, it is clarified therein that when the contract is patently illegal, the same becomes unenforceable and a suit for specific performance of such contract would not be maintainable.

72. Section 85 of the Tenancy Act, 1948 has been placed before us to submit that this provision specifically bars the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Tenancy Act is required to be settled, decided or dealt with by the revenue authorities. It was urged that since an agreement to sell that is executed without previous sanction of the Collector would be an invalid and unenforceable agreement and the Civil Court cannot be called to examine the validity of the transaction entered into in violation of mandatory conditions of Section 43 of the Tenancy Act, 1948 in view of the bar created by Section 85 of the said Act, it cannot proceed with the suit. The Civil Court has no jurisdiction to decide any question related to the validity or invalidity of such an agreement. The result is that for the Civil Court, such an agreement for sale would be an illegal agreement being hit by Section 43 of the Tenancy Act, 1948. The suit seeking enforcement of the said agreement, therefore, would not be maintainable and the plaint is liable to be rejected under Order VII Rule 11 CPC, inasmuch as, in such a situation, Civil Court will only examine as to whether the agreement is permissible in law.

73. Heard learned counsels for the parties and perused the record.

74. On consideration of the arguments of the learned Advocates for different sets of the parties and the judgements relied upon by them in their rival submissions, we may note that:-

[VII] Analysis:-

75. (a) Essence of Section 43 of the Tenancy Act,1948:-

(i) Section 43 is couched in negative language, making an express prohibition on execution of any instrument in writing to transfer by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector. The plain language of Section 43 of the Tenancy Act makes it clear that even an agreement in writing for transfer of the land governed by Section 43 is prohibited unless prior permission of the Collector is obtained. Sub-section (1A) further clarifies that the sanction under Sub-section (1) shall be given by the Collector, in such circumstances and subject to such conditions, as may be prescribed by the State Government. Sub-section (2) provides the consequence of any transfer or any agreement for transfer of the land governed by Section 43 in contravention of Sub-section (1), and makes it Invalid.

76. The essence of Section 43 has been discussed by the Division Bench of this Court in the case of Shashikant Mohanlal Desai (Shashikant Mohanlal Desai and others vs. State of Gujarat, AIR 1970 GUJARAT 204). While deciding the question of construction of Section 43 of the unamended Bombay Tenancy and Agricultural Lands Act, 1948, it was noted therein that the Tenancy Act, 1948, originally enacted, was intended to regulate the relationship of landlord and tenant with a view to giving protection to the tenant against exploitation by the landlords introducing a radical measure of agrarian reform. The legislature later decided that the tiller of the soil should be brought into direct contact with the State and the intermediary landlord should be eliminated and introduced fasciculus of Sections from Section 32 to Section 32-R and Section 43, which came into force on 13.12.1956 and they provided for the tenant becoming deemed purchaser of the land held by him as tenant. Since the tenant is made deemed purchaser of the land in order to effectuate the policy of agrarian reform to eliminate the intermediary landlord and to establish direct relationship between the State and the tiller of the soil, so that soils of his cultivation are not shared by an intermediary or middleman who does not put in any labour, the legislature insisted that the tenant must personally cultivate the land of which he is made the deemed purchaser. The tenant would continue to remain owner of the land only so long as he personally cultivated it. He must make use of the land for the purpose for which it was given to him as the owner. If the tenant fails to cultivate the land personally either by keeping it fallow or by putting it to non-agricultural use, he would loose the land under Section 32B and the land would be given for personal cultivation in accordance with the provisions of Section 84C.

(ii) It was noted therein that for the same reason, the legislature, by enacting Section 43, placed an embargo on the tenant transferring the land deemed to be purchased by him. If the tenant was free to transfer the land to any one he likes, the object and purpose of making him the deemed purchaser of the land would be frustrated. Section 43, therefore, provided that no land purchased by a tenant, under Section 32 shall be transferred by sale, gift, exchange, mortgage, lease, assignment or partition without the previous sanction of the Collector and except the payment of such amount, as the State Government may by general or special order determine. General rule enacted in Section 43 was that the tenant shall not transfer the land by any of the above mode, for it is given to him as owner for personal cultivation. It was noted that the legislature, however, recognized that there may be cases where it may be necessary or expedient to transfer the land to some other person and, therefore, provided that the transfer may be made by the tenant after obtaining the previous sanction of the Collector and on payment of such amount, as the State Government may, by general or special order, determine. These two conditions are clearly and indubitably conditions of a valid transfer of the land by the tenant and, if either of those two conditions are not fulfilled, the transfer would be Invalid.

(iii) As far as the first condition is concerned, which requires previous sanction of the Collector before the land can be transferred by the tenant, it was observed that this requirement has been introduced in order to ensure that the general rule inhibiting transfer is not departed from, except under justifying circumstances. When an application is made to the Collector for sanction, the Collector will examine the facts and circumstances of the case and decide whether consistently with the object of the Act and the exigencies of the situation, the tenant should be permitted to transfer the land. If the land is said to be transferred by the tenant for non-agricultural purposes, the Collector will have to consider whether the necessity or expediency of the transfer is so great that despite the policy of the Statute that the land must be personally cultivated by the tenant, it should be allowed to be transferred by the tenant to another for non-agricultural purpose.

(iv) The Division Bench has emphasized that the power of the Collector is not to be exercised lightly, rather it is a power, which must be exercised with great care and circumspection having regard to the policy of the statute and also bearing in mind the fact that the landlord has been deprived of his ownership of the land for the purpose of making the tiller of the soil the owner of it. The Collector, will, therefore, take into account various circumstances relating to the proposed transfer and decide whether he should grant permission or not.

77. In view of the negative language of the Statute, there can be no doubt that the two conditions of transfer in Sub-section (1) of Section 43 are of mandatory character.

78. Section 43, as was originally enacted, did not contain any prohibition about the agreement as an instrument in writing to be entered for transfer by sale, gift, exchange, mortgage, lease or assignment. By Gujarat Act No. 30 of 1977, the amendments were brought in the Tenancy Act, 1948. From the Statement of object and reasons of the Bill seeking to amend the Tenancy law enforced in the State of Gujarat, it may be noted that Sub-section (1B) of Section 32 of the Tenancy Act, 1948 was amended so as to provide that if the tenant fails to give an undertaking within the prescribed period to cultivate the land personally, the land whose possession is taken from the landlord, shall vests in the State Government and shall be disposed of in the manner prescribed in Sub-section (2) of Section 32P. The first proviso to Sub-section (1B) of Section 32 was amended and second proviso was inserted.

79. The object and reasons, as narrated in the Bill, to achieve two fold purpose to amend Sections 43 and 63 of the Tenancy Act, 1948, is relevant to be extracted hereinunder:-

"Statement of Objects and Reasons

This Bill seeks to amend the tenancy laws in force in the State of Gujarat for certain purposes.

2. It seeks to amend sub-section (1B) of section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 so as to provide that if the tenant fails to give an undertaking within prescribed period to cultivate the land personally, the land whose possession is taken from the landlord, shall vest in the State Government and shall be disposed of in the manner provided in sub-section (2) of section 32P.

3. This Bill also seeks to amend sections 43 and 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 and the corresponding sections 57 and 89 of the Bombay Tenancy and Agricultural Land (Vidarbha Region and Kutch Area) Act, 1958, for achieving two fold purpose as under:

(1) to impose restrictions on the purchase of sites for dwelling houses by the tenants of such sites similar to the restrictions imposed by the Act on the purchase or sale of land under certain provisions of the Act;

(2) to apply the restrictions imposed by the aforesaid sections on transfers of lands to agreements of transfer also, with a view to preventing circumvention of the aforesaid provisions of law by effecting agreements of transfer and then resorting to part performance of such agreements under section 43A of the Transfer of Property Act, 1882.

Sub-section (1) of Section 43 was substituted in the following manner:-

"(1) for sub-section (1), the following shall be substituted, namely:-

"(1) No land or any interest there in purchased by a tenant under section 17B, 32, 32F, 32I, 32O, 32U, or 43-1D or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may be general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector.";"

80. Consequent amendment has been made in sub-section (1A), (1B) and Sub-section (2) to substitute the words " any transfer or partition of the land" by the words " any transfer or partition, or any agreement of transfer, of any land or any interest therein."

81. The purpose of amendment, as per the Statement of Object and reasons, as narrated in the Bill, is to apply restrictions imposed by the said Section on transfer of land to "agreement of transfer" also. The intention of the legislature is to prevent circumventing of the provision of Section 43 by effecting the agreements of transfer and then resorting to part performance of such agreements under Section 53A of the Transfer of Property Act, 1882.

82. Section 53A of the Transfer of Property Act is also relevant to be noted, at this juncture. The provision states that where a contract has been entered into in writing laying down the terms and conditions of transfer and the transferee has taken possession of the property or any part thereof, in part performance of the contract and the transferee being in possession, has done some act in furtherance of the contract, and has performed or is willing to do his part of the contract, then notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed thereof by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee or persons claiming under him, any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

83. Section 53A does not create title of the transferee in the property in question, but gives him a very limited right, subject to the satisfaction of the conditions as stated in Section 53, so that the transferee is entitled to resist any attempt on the part of the transferor to disturb the transferee's lawful possession under the contract of sale.

84. From a conjoint reading of Section 53A of the Transfer of Property Act, 1882 and the Statement of Object and reasons of the Amendment Act, namely the Gujarat Tenancy Law, (Amendment) Act, 1977 (the Gujarat Act No. 30 of 1977), it is clear that the legislature has introduced the prohibition of making an agreement as an instrument in writing to transfer the land governed by Section 43 of the Tenancy Act of the restrictive nature of tenancy, so as to prevent circumvention of the law, which expressly prohibits transfer of land of restricted tenancy by the tenant without the previous sanction of the Collector. The limited benefit accorded to the transferee by Section 53A of the Transfer of Property Act, has been taken away expressly by introducing amendments in Section 43. With the amendment, the legislature has made it clear that a tenant would be entitled to agree, by instrument in writing, for transfer of the land of restricted nature of tenancy, only on satisfying the pre-condition of Sub-section (1) of Section 43 of seeking previous sanction of the Collector, where the Collector will be required to take into account various circumstances relating to the proposed transfer and decide whether it should grant permission or not.

85. From the above discussion, it is clear that the requirement of previous sanction of the Collector as a pre-condition of transfer in Sub-section(1) of Section 43 is a part of the benevolent legislation, which has been brought into the Statute as a measure of agrarian reform, making the tenant a deemed purchaser of the land held by him as a tenant and ensuring that the tenant would continue to remain owner of the land only so long as he personally cultivates it and that he must make use of the land for the purpose for which it was given to him as owner.

86. In a recent decision in the case of Vinodchandra Sakarlal Kapadia(supra) the Apex Court has answered the question pertaining to interpretation of provisions of Section 43(1) of the Tenancy Act, which restricts transfer of land of restrictive tenure, in a matter where the transfer was to be made by execution of a will or by way of testamentary disposition. While answering the said question, the Apex Court has extensively gone through the provisions of Sections 43 and 63 of the Tenancy Act, 1948. It was noted that the basic intent behind conferral of ownership rights upon a cultivating tenant was to see that the actual tillers or cultivators must be protected and given the ownership rights upon payment of nominal charges. The avowed objective of the Act is to preserve the agricultural lands in the hands of actual tillers and not to let concentration of holdings in a few hands. The conditions of transfer , as put in Section 43, providing for the relevant criteria on the basis of which applications for transfer inter vivos could be considered and granted are disclosure of the legislative intent to restrict the transfer or prohibit transfer by tenant without fulfillment of the said conditions.

87. The observation in paragraph No. '22' of the said decision construing the prohibition against transfer appearing in the Statute in keeping with the legislative intent, are to be noted as under:-

"22. The common thread running through these decisions except that in Mahadeo8 is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh24, where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in Civil Appeal No. 2573 of 2020 etc. (arising out of SLP (C) No. 18525 of 2009 etc.) Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc. attaining the object sought to be achieved. We must therefore examine the provisions of the Act to consider the legislative scheme."

88. In the case of State of Maharashtra (State of Maharashtra vs. Bal Govind Gavate, AIR 1996 SC 904) while interpreting the provisions of Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, it was observed that reading of Section 43 clearly indicates that Section 43 was enacted to protect the right, title and interest of the tenant, who became deemed purchaser of the property and became owner thereof by operation of the Statute. With a view to see that such a tenant is not deprived of his ownership, right to possession and enjoyment thereof as a tiller of the soil, in order to perpetuate the object of the Tenancy Act, 1948, previous sanction is made a condition precedent for any transfer, except in cases as envisaged therein.

89. Further, it is noteworthy that Sub-section (2) of Section 43 provides for consequence of a transfer in contravention of Sub-section (1) of Section 43 and makes an agreement or transfer invalid. It is vehemently argued by the learned Advocates appearing for the vendee that "invalid" in sub-section(1) of Section 43 cannot be read over as interchangeably with the "null and void". The use of the word "invalid" is a conscious decision of the legislature, in contradistinction to the word "nullity" or "null and void" and, therefore, differential meaning is to be assigned to the expression "invalid" occurring in Sub-section (2) of Section 43. It was argued that Government Resolutions have provided for validating the transfer made in violation of Section 43, without obtaining prior permission of the Collector and, as such, the instrument of transfer or agreement executed without prior permission of the Collector, which can be validated by subsequent permission by the Collector, cannot be said to be void transaction.

(b) In the Context of the Indian Contract Act'1872:-

90. To deal with the above submission, we find that the words "invalid", "forbidden by law" and "void" have to be understood in the context of the provisions of the Indian Contract Act, 1872. Section 23 of the Contract Act provides as to when consideration or object of an agreement is said to be lawful. It prescribes that the consideration or object of an agreement is lawful, unless it is forbidden by law. Meaning thereby, that an agreement of which the consideration or object is forbidden by law is unlawful. It further provides that every agreement of which the object or consideration is unlawful is void. The interpretation clause in Section 2(c) of the Contract Act states that "an agreement not enforceable by law is void". The Contract, within the meaning of Section 2(h) of the Contract Act is an agreement enforceable by law. Section 2(i) states that an agreement, which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract. Section 2(j) states that a contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. Section 23 of the Indian Contract Act, 1872 is relevant to be noted as under:-

"23. What consideration and objects are lawful, and what not.-The consideration or object of an agreement is lawful, unless-

It is forbidden by law; or

is of such a nature that, if permitted, it would defeat the provisions of an law; or is fraudulent; or

involves or implies, injury to the person or property of another; or the court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."

91. The Allahabad High Court in the case of Nutan Kumar (Nutan Kumar and others vs. IInd Additional District Judge, Banda and others, AIR 1994 Allahabad 298) considering the provisions of Section 2(h)(g) and Section 23 of the Contract Act, has noted that every agreement made for or about any matter or thing which is either forbidden by any Statute or would defeat the provisions of any law, or the Court regards it as opposed to public policy, is unlawful and ipso facto void. It was held that an agreement offending a Statute or public policy or forbidden by law is not merely void, but it is invalid from nativity. It cannot become valid even if the parties thereto agree to it. The concept that an agreement may be void in relation to a specified person and may be valid or voidable within the parties thereto is not applicable to an agreement, the very foundation whereof law interdicts; or which is of such a character that, if permitted, it would frustrate the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy. Neither party can enforce such an agreement. No legal relations come into being from an agreement offending a statute or public policy. It was held that void agreements are destitute of all legal effects and force. They are totally ineffectual rather cipher. No legally enforceable relationship, right or liability emanates therefrom. The distinction between 'illegal' and 'void' contracts has been highlighted in paragraphs No. '72','73' and '74' therein as under:

"72. In Deep Narain Singh v. Nageshwar Prasad, AIR 1930 AH 1 at p. 3 (FB) : (1930 All LJ 45), it has been observed as under :

"There is a clear distinction between an agreement which may be forbidden by law and one which is merely declared to be void. In the former case, the legislature penalises it or prohibits. In the latter case, it merely refuses to give effect to it."

73. It may be observed that the distinction between illegal and void contracts may be very thin but it is there. Sir William Anson in his Book "On Law of Contracts" has very succinctly stated the legal position as thus :

"..... The law may either forbid an agreement to be made, or it may merely say that, if it is made the Courts will not enforce it. "In the former case, it is illegal, in the latter only void, but inasmuch as illegal contracts are also void, though void contracts are not necessarily illegal, the distinction is for most purposes not important and even Judges seem sometime to treat the two terms as interchangeable."See Gherulal Parekh's case, AIR 1959 SC 781 at p. 786."

74. In Manna Lal Khetan v. Kedar Nath Khetan, (1977) 2 SCC 424 : (AIR 1977 SC 536) at p. 430 para 11, it has been observed by the Supreme Court as under.

"A contract is void if prohibited by statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition."

The above authorities lead to a conclusion that although for all practical purposes, illegal contracts and void contracts are taken at par with each other nevertheless the distinction between the two is there. Illegality of a contract arises as a result of infraction, contravention or breach of any express or implied provisions of law properly so-called that is a constitutionally valid enactment made by the legislature or of a subordinate legislation i.e. rules, bye-laws, regulations or orders--or even usages and customs--having the force of law. On the other hand, the void contract is one which is declared as such by virtue of sections 23 to 30 etc. of the Contract Act or by a provision of any other enactment."

92. In the case of Mannalal Khetan (Mannalal Khetan and others vs. Kedar Nath Khetan and others, (1977) 2 SCC 424) while interpreting the language employed in Section 108 of The Companies Act, 1956, wherein words " shall not register" has occurred, it was observed that the mandatory character is strengthened by the negative form of the language. The prohibition against transfer without complying with the provisions of the Act is emphasized by the negative language. Negative language is worded to emphasis the insistence of compliance with the provisions of the Act. Negative words are clearly prohibitory and are ordinarily used as a legislative devise to make a statutory provision imperative.

93. The decision of the Apex Court in the case of Raza Buland Sugar Co. Ltd.(Raza Buland Sugar Co. Ltd. vs. Municipal Board, Rampur, AIR 1965 SC 895) has been noted in paragraph "17" therein to record that the prohibitions and negative words can rarely be directory, in the following manner:-

"17. In Raza Buland Sugar Co. Ltd. v. Municipal Board Rampur(4) this Court referred to various tests for finding out when a provision is mandatory or directory. The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to other provisions dealing with the same subject and the language of the provision are all to be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. (See Maxwell on Interpretation of Statutes 11th Ed. p. 362 seq.; Crawford Statutory Construction, Interpretation of Laws p. 523 and Seth Bikhraj Jaipuria v. Union of India"

94. It was held that where a contract, express or implied, is expressly or by implication forbidden by Statute, no Court will lend its assistance to give it effect. A contract is void if prohibited by a Statute under penalty, even without express declaration that the contract is void. It was observed in paragraph "20" as under:-

"20. It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim 'A pactis privatorum publico juri non derogatur means that 'private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis v. Shirley L.B.) (Supra). What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action."

95. Justice Subba Rao in the case of Chandra Sreenivasa Rao (Chandra Sreenivasa Rao vs. Korrapati Raja Rama Mohana Rao and another, AIR 1952 Madras 579) while dealing with a question pertaining to Section 23 of the Indian Contract Act has considered the question as to the connotation of the word "object" in Section 23 in contradistinction to the word "consideration". It was noted that the word "object" in Section 23 of the Contract Act is distinct from the word "consideration" and meant as "purpose" or "design". If the "purpose" of the parties is to defeat the provisions of the law, the "object" of the agreement is unlawful. In other words, an agreement designed to defeat the "object" and "purpose" of a law is an agreement forbidden by law within the meaning of Section 23 of the Indian Contract Act. The question would be as to whether the agreement, which is forbidden by law, can be enforced by a Court of law.

96. In light of the above position of law, considering the language employed in Section 43(1) of the Tenancy Act, 1948 this Court in Hasvantbhai Chhanubhai Dalal (supra) has considered the difference between the 'void' and 'illegal' agreement in paragraphs "61","62","64" and "65" as under:-

"• DIFFERENCE BETWEEN "VOID" AND "ILLEGAL" AGREEMENT:

61. The Indian Contract Act, 1872 has made it clear that there is a thin line of difference between void and illegal agreement. A void agreement is one which may not be prohibited under law, while an illegal agreement is strictly prohibited by law and the parties to the agreement can be penalized for entering into such an agreement. A void agreement has no legal consequences, because it is null from the very beginning. Conversely, the illegal agreement is devoid of any legal effect, since it is started. All illegal agreement are void, but the reverse is not true. If an agreement is illegal, other agreements related to it are said to be void. An agreement that violates any law or whose nature is criminal or is opposed to any public policy or immoral is an illegal agreement. These agreements are void ab initio, and so the agreements collateral to the original agreement are also void. Here the collateral agreement refers to the transaction associated or incidental to the main agreement. The difference between void and illegal agreement can be drawn clearly on the following grounds:

[1] An agreement which loses its legal status is a void agreement. An illegal agreement is one which is not permissible under law.

[2] Certain void agreements are void ab initio while some agreements become void when it loses its legal binding. On the other hand, an Illegal agreement is void since the very beginning. A void agreement is not prohibited by Penal Code, 1860 (IPC), but IPC strictly prohibits an illegal agreement.

[3] The scope a void contract is comparatively wider than an illegal contract as all agreements which are void may not necessarily be illegal, but all illegal agreements are void from its inception.

[4] A void agreement is not punishable under law whereas an illegal agreement is considered as an offence, hence the parties to it are punishable and penalised under Penal Code, 1860 (IPC).

[5] Collateral agreements of a void agreement may or may not be void i.e. they may be valid also. Conversely, collateral agreements of an illegal agreement cannot be enforceable by law as they are void ab initio.

62. It is quite clear that the void and illegal agreement are very different. One of the factors that make an agreement void is the illegality of the contract, such as contract whose object or consideration is unlawful. Moreover, in both the two agreements loses its enforceability by law.

xxx xxx xxx

64. In the case of Rajasthan Housing Board v. New Pink City Niarman Sahkari Samiti Limited reported in (2015) 7 SCC 601, the Supreme Court had the occasion to consider the provisions of the Rajasthan Tenancy Act, 1955. The litigation before the Supreme Court had something to do with the land acquisition proceedings. In the said case, the parcels of land were transferred by the Scheduled Caste khatedars in favour of a person who was not the member of the Scheduled Caste. The Supreme Court held that the agreement of sale of land by the Scheduled Caste khatedars to the Housing Society could be termed as void ab initio. The Supreme Court took the view that the decree for specific performance of the agreement obtained by the society being prohibited under Section 42 of the Rajasthan Tenancy Act, 1955 and opposed to public policy could be termed as a nullity and unenforceable. of course, it is true that the word used in Section 42 of the Rajasthan Tenancy Act, 1955 is "void", whereas the word used in Section 43(2) of the Tenancy Act, 1948 is "invalid". However, if the transaction is found to be opposed to public policy, the same cannot be enforced. This principle would be applicable irrespective of the fact whether the transaction is invalid or void. Section 43 of the Tenancy Act has its own importance. There is a fine distinction between a restricted tenure and old tenure. If a person derives land in accordance with the provisions of the Tenancy Act, such acquisition is one of a restricted tenure land. The land is given for a specific purpose keeping in mind the object of the Act, 1948. I may quote the observations made by the Supreme Court in paras 26, 27, 28 and 30 as under:

"26. In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding "shall be void". As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non-SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.

27. In State of Madhya Pradesh v. Babu Lal [(1977) 2 SCC 435] : (AIR 1977 SC 1718), the provisions contained in section 165(6) of M.P. Land Revenue Code, 1959 came up for consideration before this Court. The High Court directed the State to file a suit for declaring the decree null and void. The decision was set aside. It was held that the case was a glaring instance of violation of law as such the High Court erred in not issuing a writ. The decision of the High Court was set aside. The transfer which was in violation of proviso to section 165(6) transferring the right of Bhuswami belonging to a tribe, was set aside.

28. This Court in Lincal Gamango v. Dayanidhi Jena [(2004) 7 SCC 437 : AIR 2004 SC 3457] while considering the provisions of Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 which prohibited alienation of rural property by a tribal to a non-tribal, declared such transaction to be null and void. This Court while relying upon the decision in Amrendra Pratap Singh v. Tej Bahadur Prajapati [(2004) 10 SCC 65 : AIR 2004 SC 3782] has laid down that no right can be acquired by adverse possession on such inalienable property. Adverse possession operates on an alienable right. It was held that non-tribal would not acquire a right or title on the basis of adverse possession.

30. This Court in Amrendra Pratap, ((2004) 10 SCC 65 : AIR 2004 SC 3782) (supra) has laid down that the expression 'transfer' would include any dealing with the property when the word 'deal with' has not been defined in the statute. Dictionary meaning as the safe guide can be extended to achieve the intended object of the Act. The transaction or the dealing with alienable property to transfer title of an aboriginal tribe and vesting the same in non-tribal was construed as transfer of immovable property. Extending the meaning of the expression 'transfer of immovable property' would include dealing with such property as would have the effect of causing or resulting in transfer of interest in immovable property. When the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. When the intendment of the Act is that the property should remain so confined in its operation in relation to tribals that the immovable property to one tribal may come but the title in immovable property is not to come to vest in a non-tribal the intendment is to be taken care by the protective arm of the law and be saved from falling prey to unscrupulous devices, and this Court concluded any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of 'transfer of immovable property'.

65. In Ram Karan v. State of Rajasthan [(2014) 8 SCC 282], the Supreme Court has laid down that the transfer of holding by a member of Scheduled Caste to a member not belonging to the Scheduled Caste by virtue of Section 42 of the Rajasthan Tenancy Act is forbidden and unenforceable. Such a transaction is unlawful even under Section 23 of the Contract Act and an agreement or such transfer would be void under Section 2(g) of the Contract Act. This principle of law, as explained by the Supreme Court in Ram Karan (supra) fortifies the view taken by the learned Single Judge of this Court in the case of Hardik Harshadbhai Patel (supra). Keeping this principle in mind, I have arrived to the conclusion that the word "invalid" or the word "void", so far as the Section 43 of the Tenancy Act is concerned, would not make by difference. The true test is whether the transaction is unlawful, as opposed to the public policy. Whether such transaction would defeat the very object with which such restriction has been imposed in Section 43 of the Tenancy Act."

97. With reference to the provisions of Section 43 of the Tenancy Act, it was observed in Paragraph "67" therein that:-

"67. The language of Section 43 of the Tenancy Act is plain and simple. There is no absolute bar or an embargo as regards the transfer of a new tenure land or entering into an agreement of sale with respect to a new tenure land. Section 43 only says that the parties cannot enter into such agreement without the prior permission of the Collector and if the parties have entered into such agreement without the permission of the Collector, such transaction would be invalid. Thus, it is for the Collector to decide whether permission should be granted or not. It is for the Collector to consider whether such transfer would be in consonance with the Constitutional Scheme in Part IV of the Directive Principles. The Collector may also consider whether the agreement is void under Section 23 of the Contract Act as opposed to the public policy. Before the permission is given, the Collector is enjoined, by operation of Article 46 of the Constitution, to inquire whether such alienation is void under law or violates the provisions of the Constitution and whether the permission could be legitimately given. In that behalf, the competent authority is enjoined to look to the nature of the property, subject matter of the proposed conveyance and pre-existing rights flowing thereunder and whether such alienations or encumbrances violate the provisions of the Constitution or the law. If the answer is in the positive, then without any further inquiry the permission straightway would be rejected. Even in case the permission is granted, it would be decided on the anvil of the relevant provisions of the Constitution and the law [Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Bardu reported in AIR 1995 SCW 2224]. "

98. It was further held in Paragraph "84" that:-

"84. Thus, having regard to the aforesaid discussion, I have reached to the conclusion that the transaction between the parties being hit by Section 43 of the Tenancy Act and being opposed to the public policy, as explained under Section 23 of the Contract Act, is not enforceable in law. There is a clear bar for entering into an agreement to sell of the granted lands without previous the permission of the Collector. If an agreement is entered into in respect of the granted land in violation of Section 43, it is invalid. Section 23 of the Indian Contract Act, 1872 bars the enforcement of a contract if it is forbidden by law. An agreement offending a statute or public policy or forbidden by law is not merely void but it is invalid from nativity. The term law' in this Section must be understood in the sense of the term explained in Article 13(3) of the Constitution. Thus, what is done in contravention of the provisions of any law cannot be made the subject matter of an action. If the contract is expressly prohibited by law, it is void-ab-initio and cannot be enforced. In the circumstances, Courts cannot grant a decree for specific performance subject to the permission, which may be obtained by one of the parties from the Collector. I am of the view that the suit filed by the plaintiff for enforcement of the invalid agreement cannot be entertained by the Civil Court."

99. The decision of the Apex Court in the case of Sita Ram (supra), has been noted in paragraph Nos. "75" and "85" therein as under:-

"75. The Supreme Court in the case of Sita Ram v. Radha Bai reported in AIR 1968 SC 534 has very succinctly explained the law on the subject. I may quote the relevant observations as under:

"12. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim In pari causa potior est conditio possidentis. But as stated in Anson's 'Principles of the English Law of Contracts', 22 nd Ed., p. 343:"there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered-cases to which the maxim does not apply They fall into three classes (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it (b) where the plaintiff is not in pari delicto with the defendant : (c) where the plaintiff does not have to rely on the illegality to make out his claim."

13. There was in this case no plea by the plaintiff that there was any illegal purpose in entrusting the jewellery to Lachhmi Narain. It was also the plaintiffs case that Gomti Bai knew that the jewellery in dispute was entrusted by the plaintiff to Lachhmi Narain, and if the averments made in the plaint are to be the sole basis for determining the contest, Gomti Bai did not suffer any loss in consequence of the entrustment. Assuming that the Trial Court was competent without a proper pleading by the appellant and an issue to enter upon an enquiry into the question whether the plaintiff could maintain an action for the jewellery entrusted by her to Lachhmi Narain, the circumstances of the case clearly make out a case that the parties were not "in pari delicto". It is settled law that "Where the parties are not in pari delicto, the less guilty party may be able to recover money paid, or property transferred, under the contract. This possibility may arise in three situations. First, the contract may be of a kind made illegal by statute in the interests of a particular class of persons of whom the plaintiff is one. * * *

Secondly, the plaintiff must have been induced to enter into the contract by fraud or strong pressure.

* * *

Thirdly, there is some authority for the view that a person who is under a fiduciary duty to the plaintiff will not be allowed to retain property, or to refuse to account for moneys received, on the ground that the property or the moneys have come into his hands as the proceeds of an illegal transaction" See Anson's 'Principles of the English Law of Contract' p. 346..."

xxx xxx xxx

xxx xxx xxx

85. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality has been very succinctly explained by the Supreme Court in its decision in the case of Sita Ram (supra) by applying the maxim in pari causa potior est conditio possidentis. The Supreme Court, by referring to Anson's 'Principles of the English Law of Contracts', explained that there are exceptional cases in which a person would be relieved of the consequences of an illegal contract into which he has entered and the above referred maxim is not applied. The Supreme Court classified the three exceptional circumstances : (a) where the illegal purpose has not yet been substantially carried into effect, (b) where the plaintiff is not in pari delicto with the defendant, and (c) where the plaintiff does not have to rely on the illegality to make out his claim. This principle explained by the Supreme Court in Sita Ram (supra) applies on all fours to the case on hand. The plaintiff could be said to be in pari delicto with the defendants and he has no other option, but to rely upon the invalid agreement of sale for the purpose of seeking the discretionary relief of specific performance. It is not the case of the plaintiff that he had been induced to enter into the contract by fraud or strong pressure."

100. In the case of Waman Shriniwas Kini (Waman Shriniwas Kini vs. Ratilal Bhagwandas and Co., AIR 1959 SC 689) the Apex Court was dealing with the question as to whether the Court would be enforcing an agreement, which is prohibited and made illegal by the statutory provisions, turning down the plea of waiver on the agreement of the opponent therein that under the agreement between him and the respondent, he was entitled to sub-let the premise. It was held that the plea of waiver cannot be raised because as a result of giving effect to that plea, the Court would be enforcing an illegal agreement and, thus, contravening the statutory provisions of Section 15, based on the public policy and produce the very result which the Statute prohibits and makes illegal. By enforcing the contract, the consequence will be the enforcement of an illegality and infraction of the statutory provisions, which cannot be condoned by any conduct or agreement of parties.

101. The Full Bench of the Allahabad High Court in Nutan Kumar and others (supra), has considered the question as to whether the suit for ejectment and recovery of arrears of rent and damages etc. based on a lease agreement which is unenforceable in the eye of law, can be maintained by the lessor against the lessee. It was observed in paragraphs "97","98","99","100" and "101" that:-

"97. Now coming to the second question as to whether such a lease as aforesaid is enforceable and a suit of ejectment and recovery of arrears of rent and damages etc. based on such lease can be maintained by the lessor against the lessee, the following propositions of law enunciated by Sir William Anson in his book 'Law of Contract' (26th Edn. Edited by A. G. Guest), may usefully be quoted below as guiding principles on the question :

"It is scarcely surprising that the Courts will refuse to enforce an illegal agreement at the suit of a person who is himself implicated in the illegality. But it is also a rule of English law that money or property transferred by such a person cannot be recovered. In the colourful words of Wilmot C.J. : 'All writers upon our law agree in this, no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again. 'This principle is expressed in the maxim in pari delicto potior est conditio defendant is."

98. The principle expressed in the maxim popularly known as 'pari delicto' is, however, subject to following among other exceptions under which the man will be relieved of the consequences of an illegal contract into which he has entered :

(a) Where the plaintiff seeking recovery of the property given to the defendant in an illegal transaction has withdrawn from a transaction and approached the court before the illegal purpose of the transaction can be executed in whole or in part;

(b) Where the plaintiff is not in pari delicto with the defendant;

(c) Where the plaintiff though in pari delicto with the defendant suffered from any incapacity of the nature which vitiates a contract or was as a matter of fact forced to be party to the illegality by reason of the compulsions of social or economic inequality having a bearing upon the bargaining capacities of the parties; and,

(d) Where the plaintiff does not have to rely on the illegality to make out his claim.

99. The learned author has further stated the principle in the following words :

"There is yet one more factor which may defeat an ostensibly valid contract. It is that of illegality. Public policy imposes certain limitations upon freedom of contract. Certain objects of contract are forbidden or discouraged by law; and though all other requisites for the formation of a contract are complied with, yet if these objects are in contemplation of the parties when they entered into agreement the law will not permit them to enforce any rights under it."(p. 292) "The nature and effects of statutory illegality may vary considerably. A statute may declare that a certain type of contract is expressly prohibited. There is then no doubt of the intention of the legislature that such a contract should not be enforced. What is done in contravention of the provisions of an Act of Parliament cannot be made the subject matter of an action."(p. 293)

100. Equally useful are the following views expressed on the point by Pollock and Mulla in their book 'On Indian Contract and Specific Relief Acts', 12th Edn. at p. 232 :

"If a contract is expressly or by necessary implication forbidden by statute or it is ex facie illegal or both parties know that though ex facie legal it can be performed by illegality or is intended to be performed illegally, the law will not help the plaintiffs in any way i.e. by direct or indirect enforcement of rights under the contract. And for this purpose both the parties are presumed to know the law. If expressly prohibited by law, the contract is void ab initio. If both parties have knowledge that a contract could not be carried out without a violation of the law, the contract would be un-enforceable. But if only one party has such knowledge the innocent party is not precluded because otherwise it would injure the innocent, benefit the guilty and put a premium on deceit. If a contract can be performed in one of two ways, i.e. legally or illegally it is not an illegal contract though it is un-enforceable at the suit of a party who chooses it to perform illegally."

101. In Anson's Law of Contract (supra), it has also been propounded that where the plaintiff is not relying upon the illegal contract, he may sue the defendant for possession delivered to the latter under the illegal contract. To quote the learned Author-

"It is settled law that the ownership of property can pass under an illegal contract if the parties so intend, as in the case of goods sold to a buyer under an illegal contract of sale.

Where, however, only a limited interest is transferred, as under a contract of bailment or a lease, it is equally well established that the owner of the property can recover it from the bailee or lessee if he is not forced to found his claim on the illegal contract, but simply relies on his title to the property."

"This principle is extremely difficult of application since it is frequently hard to determine whether a plaintiff is relying upon his title, or upon the contractual provisions of title, or upon the contractual provisions of the illegal agreement. For example, it seems probable that a landlord can recover premises let to a tenant under an illegal agreement once the term of years has expired; but it is a matter of doubt whether he could recover them in the meantime under a covenant which provided for forfeiture for non-payment of rent. Would he be relying on his independent right of ownership, or (more probably) upon the contractual provisions of the illegal lease"

102. The decision of the Apex Court in Waman Shriniwas Kini (supra) was considered in paragraph Nos. "102", "103","104","105" and "106" in the following manner:

"102. In Waman Sriniwas v. R. B. and Company, AIR 1959 SC 689, 'A' was the tenant for about 20 years in the premises known as 'Fida Ali Villa' situate at kalyan in Bombay. The building was purchased by 'R' who gave notice to 'A' to vacate as he wanted to construct a new building on the site of the old building. 'A' agreed to vacate and 'R' to let to him a portion of his new building. 'A' had four sub-tenants in the building aforesaid, three of them also shifted to the new premises which were let to 'A' by 'R'. The new premises was let to 'A' on certain agreement regarding sub-tenancy. 'R' Brought a suit for ejectment on the ground of non-payment of rent and sub-letting of premises. The defence of 'A' was that under the terms of lease, he had the right to sub-let the premises.

103. Section 15 of Bombay Hotel and Letting House Rent Control Act, 1947 prohibited sub-letting and made it unlawful for a tenant to assign or to transfer his interest in the premises let to him. It was held by Supreme Court that an agreement contrary to the provisions of Section 15 could be unenforceable as being in contravention of the express provisions of the Act which prohibited it; (2) that it was not permissible to any person to rely upon the contract.

104. While commenting on the maxim--'in pan delicto Eotiorest conditie posidentes'--the Supreme Court in the above noted case observed as under :

"The maxim must not be understood as meaning that where a transaction is vitiated by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them. Its true meaning is that where the circumstances are such that the court will refuse to assist either party, the consequence must, in fact, follow that the party in possession will not be disturbed."--(Per Du Paroq L. J. In Dow Makess Ltd. v. Barnet Instruments Ltd. 1945-1 K. B. 65, 72).

105. The Supreme Court further held :--

The first respondent in the present case did not call upon the court to enforce any agreement at all. When the instrument of lease was executed and possession given and sub-letting done it received its full effect; no aid of the court was required to enforce it. The respondent's suit for ejectment was not brought for enforcement of the agreement which recognised sub-letting but he asked the court to enforce the right of eviction which flows directly from an infraction of the Act (S. 15) and for which the Act itself provides a remedy. There is thus a manifest distinction between this case where the plaintiff asked the court to afford him a remedy against one who by contravening Section 15 of the Act has made himself liable to eviction and those cases where the court was called upon to assist the plaintiff in an agreement the object of which was to do an illegal act. The respondent. is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a court of justice any right founded upon or growing out of an illegal transaction. "--

106. The Supreme Court further held--"..... Whether Court would aid the appellant in enforcing a term of agreement which Section 15 of the Act declares to be illegal. By enforcing the contract the consequence will be the enforcement of an illegality and infraction of a statutory provision ....."

103. The observation of the Apex Court in the case of Manna Lal Khetan (supra) was noted in the paragraph "107" as under:-

"107. The observations of the Supreme Court in Manna Lal Khetan, (1977) 2 SCC 424 : (AIR 1977 SC 536) (supra) at p. 430, para 20 may also be quoted usefully on the point under discussion.

"It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim 'A' pactis provatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract express or implies, is expressly or by implication forbidden by statute, no court can fend its assistance to give it effect. (See Mellis v. Shirley LB) What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action."

104. In light of the above discussion, we find ourselves in complete agreement with the law laid down by this Court in Rameshbhai Chaturbhai Prajapati (supra) and Hasvantbhai Chhanubhai Dalal (supra) in holding that the agreement being unlawfully, barred by Section 43 of the Tenancy Act, 1948, in view of the specific bar contained about the execution of the agreement without previous sanction of the Collector/competent authority, is unenforceable in the eye of law. The reason being that the plaintiff would have no option, but to rely upon an illegal contract to make out his claim and the Courts will refuse an illegal agreement at the instance of a person, who is himself a party to the illegality.

105. We find ourselves in concurrence with the decision of the Division Bench in Ganpatlal Manjibhai Khatri (supra), wherein it is held that there is a total prohibition of even entering into an agreement in writing for the purpose of sale under Section 43 of the Tenancy Act, 1948. The agreement to sell entered into without the prior permission or sanction of the Collector cannot but be termed as invalid or void as the same was entered into without the prior permission or sanction of the Collector. The suit for specific performance of contract based on invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable in law. If the agreement is rendered invalid under Section 43 of the Tenancy Act, 1948, such agreement is incapable of being specifically enforceable. If the agreement to sell itself is invalid, no decree for specific performance can be passed by the trial Court.

106. We are in concurrence with the observation of the Division Bench in Ganpatlal Manjibhai Khatri (supra) that the jurisdiction to order specific performance of a contract is based on the existence of valid and enforceable contract. Where valid and enforceable contract has not been made, the Court will not make a contract for them. The specific performance will not be ordered if the contract itself suffers from some defect, which makes the contract invalid or unenforceable.

107. In the case of Jayamma (Jayamma vs. Maria Bai (deceased by LRS) and another, AIR 2004 SC 3957) the question of interpretation of Section 61 of the Karnataka Land Reforms Act, 1961 fell for consideration before the Apex Court, in a matter wherein an application purported to be under Section 276 of the Succession Act, 1985 for grant of Letters of Administration had been filed on the basis of a will, which was converted into a suit and decreed by the trial Court holding that the testator executed the will with full knowledge, having sound state of mind and it was not obtained by practicing fraud, misrepresentation or duress. In appeal, the High Court set aside the decree holding that the application for grant of Letters of Administration was not maintainable in view of Section 61 of the aforesaid Act, the subject matter of testament meant agricultural land with occupancy right could not have been assigned. Section 61 of the aforesaid Act provided for restriction on transfer of land of which the tenant has become occupant and reads as under:-

"61. Restriction on transfer of land of which tenant has become occupant. (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall within fifteen years from the date of the final order passed by the Tribunal under sub-section (4) or sub-section (5) or sub-section (5-A) of Section 48-A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder's joint family.

(2) .......................

(3) Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed of in accordance with the provisions of Section 77."

108. The Apex Court, having discussed the construction of the provisions of Section 61 therein has held that the statutory embargo on transfer of land is stricter in a case where tenant has become occupant, than a land held by the tenant simpliciter. Sub-section (3) of Section 61 lays down that any transfer of land in contravention of Sub-section (1) shall be invalid, whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go into the hands of a stranger to the family is, therefore, manifest. The tenor of Section 61 is that except partition amongst co-sharers, no transfer of the property, in any manner, is permissible. It was, thus, held in paragraph No. 21 as under:-

"21. It is not disputed that in view of the purport and object the Legislature sought to achieve by enacting the said provision the expression 'assignment' would include a Will."

(C) In the context of the Specific Relief Act, 1963:-

109. Coming to the issue pertaining to the relief of specific performance having its roots in equity under the Specific Relief Act, 1963 as discussed by this Court in Hasvantbhai Chhanubhai Dalal (supra), we may extract the discussions made in Paragraph Nos. 87 to 115 as under:

"87. Section 20 of the Specific Relief Act, 1963, provides as follows :

"20. Discretion as to decreeing specific performance (1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

(2) The following are cases in which the Court may properly exercise discretion not to decree specific performance

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage, over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1. Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b).

Explanation 2. The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party."

88 The relief of specific performance having its roots in equity, the Specific Relief Act, 1963, has preserved the discretion of the Court not to grant the relief even though the agreement is specifically performable in law. The only fetters imposed by the statute on the exercise of the discretion are that the discretion must not be exercised arbitrarily but soundly and reasonably and guided by judicial principles. The phrase "capable of correction by a Court of appeals" has been inserted possibly to indicate the necessity for the trial Court to state the reasons for exercising its discretion in a particular way. The circumstances when specific performance mentioned in the Clauses (a), (b) and (c) of Sub section (2) of Section 20 cannot be granted are not expressly exhaustive. They indicate the situations in which the Court may properly exercise discretion not to decree specific performance. However, certain considerations have been excluded as relevant factors. These are contained in Explanations 1 and 2 to the Section as well as in Section 20(4). It is to be noticed that each of these exclusions are preceded by the word "mere". The word "mere" in the context means "sole". In other words, any one of those factors by itself would not justify the exercise of discretion against granting specific performance. The factors cumulatively or with other factors may form the basis of a decision not to grant specific performance.

89. Hardship of the defendant may be one of the grounds which may be taken into consideration for exercising its discretion by the Court in refusing to grant a decree for specific performance of contract.

90. Section 20 of the Specific Relief Act embodies a Common law that is grant of a decree for specific performance of a contract is a discretionary one. The Court may, in a given situation, take into consideration the subsequent events.

91. Long years have been passed by in the case on hand and the trial Judge does not seem to have taken this fact into consideration while granting the decree for specific performance.

92. In Spry on Equitable Remedies, it is stated: "On principle, indeed, Courts of equity must take account of all the circumstances known to exist at the time when an order is sought as well as of circumstances likely to occur subsequently, when they are called upon to decide whether the effect of ordering specific performance will be to cause such great hardship as to account to an injustice. There is no sufficient reason why a cause of hardship should be ignored merely because it did not exist at the time when the material contract was entered into. Certainly the fact that it has occurred subsequently may be a matter of weight, and if it appears that the parties contemplated that events might occur such as have in fact occurred the alleged causes of hardship will usually be of little importance indeed. But this is not to say that they are irrelevant or that sometimes they may not be decisive so as to incline the balance of justice against the grant of relief.

Fortunately, however, this matter does not depend solely on principle, for there may be "found various decisions where events occurring after the date of entry into the agreement in question have been treated as relevant. Furthermore, it will subsequently be seen that any hardship of the defendant, if specific performance were ordered, must be weighed against the inconvenience or hardship which would be caused to the plaintiff if specific performance were refused. And in determining how great any such hardship or inconvenience to the plaintiff will be once again events and probable events as known at the date of the hearing are taken into account and there is no arbitrary restriction or limitation to events taking place at the time of entry into the material agreement.

It must not be forgotten that as soon as it is shown that damages and other legal remedies are inadequate an applicant will be held prima facie entitled to specific performance of a valid and enforceable agreement. Specific performance will not be refused merely because inconvenience or even hardship to the defendant would be caused thereby. But if the hardship suffered by the defendant, if specific enforcement took place, would be so much greater than the detriment which would be suffered by the plaintiff if he were confined to his remedy at law that it would be unreasonable and oppressive to grant relief, specific enforcement will be denied."

93. In S.G. Banerjee's Specific Relief Act, 10th Edn. At page 357, it is stated : "It is almost universally recognised that specific performance of a contract should not be granted, if in the circumstances of a case, it is inequitable to do so. The clause follows and gives statutory recognition to the universal rule. It enacts that where the defendant enters into the Contract under circumstances, which, though they do not render the contract voidable, yet make it inequitable to enforce specific performance, the Court may properly exercise discretion not to decree specific performance. What would or would not be inequitable would depend upon the facts and circumstances of the each case."

94. In Om Prakash v. Amarjit Singh, reported in 1988 Supp. SCC 780, the law is stated in the following terms:

"This is a suit for specific performance on an agreement to sell. The grant of relief is discretionary. The Court after consideration of all relevant circumstances must be persuaded to exercise its equitable and discretionary jurisdiction in favour of specific enforcement. The jurisdiction is subject to all the conditions to which all discretionary jurisdictions are subject. There are certain personal bars to relief. Respondent 1, who was the plaintiff in the suit, did not enter the box and tender evidence. The subject-matter of the suit is a small piece of property of 68 sq. yds. And is said to be the only worldly goods of the appellant."

95. It is a settled principles of law that the provisions of Section 20 of the Specific Relief Act is not exhaustive. The same has to be considered and read with the Section 14 thereof. It is further well settled that the plaintiff does not have an absolute right to obtain a decree for specific performance of contract.

96. In Yohannan and another v. Harikrishnan Nair and others, reported in AIR 1992 Ker 49, it is stated :

"The cases in which the Court may properly exercise discretion not to decree specific performance has been enumerated in Subsection (2). They are (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not avoidable, gives the plaintiff an unfair advantage over the defendant, or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff, (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."

97. The discretion of the Court in the matter, thus, is not confined within the four corners of Section 20 of the Act.

"39. In Dr. S.C. Banerjee's Specific Relief Act, 10th Edn. At page 326, the law is stated in the following terms : "The discretion is guided by judicial principles. The expression means that discretion is not to be arbitrarily exercised, but must be based on sound, reasonable and judicial principles, that is, the discretion must not be dependent upon the mere pleasure of the Judge but must be sound and reasonably guided by judicial principles. The Court must grant or withhold relief according to the circumstances of each particular case, when the general rules and principles do not furnish an exact measure of justice between the parties."

98. In granting or withholding the relief, the Court should take the following circumstances, conditions and incidents into consideration :

"(1) The contract must be certain, unambiguous and upon a valuable consideration;

(2) The contract must be perfectly fair in all its parts;

(3) The contract must be free from any fraud misrepresentation, imposition or mistake;

(4) The contract must not impose an unconscionable or hard bargain;

(5) The performance of the contract must not impose any hardship on the defendant, such as he could not foresee;

(6) The contract must be capable, of specific execution through a decree of the Court,"

99. The appeal Court should not interfere with the judgment of the trial Court only because it is not right but when it is clearly wrong. Even in regular suits, the appeal courts are loathe to interfere with the findings of fact arrived at by the trial Court on the basis of oral evidence.

(See Ratanlal Nahata v. Nandita Bose reported in 1997(1) CHN 392).

100. There is no dispute that an order of specific performance is a discretionary one. In an appeal against such an order, the appellate Court generally does not interfere with the discretion exercised by the trial Judge unless it appears that while exercising such discretion the trial Judge has wrongly applied the principles for grant of such discretion or unless it is established that such discretion has been unreasonably or capriciously used. In this connection reference may be made to the decision of Supreme Court in Uttar Pradesh Cooperative Federation Ltd. v. Sunder Bros. Of Delhi, reported in AIR 1967 249. In that decision the Supreme Court was dealing with an appeal against an order granting stay in exercise of power under Section 34 of the Arbitration Act, which is undoubtedly a discretionary power. While discussing the scope of the said appeal the Apex Court held that where the discretion vested in the Court has been exercised by the lower court, the appellate Court would be slow to interfere with the exercise of its discretion. In dealing with the matter raised before it at the appellate stage, the appellate Court would not be justified in interfering with the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it might have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court could have taken a different view may not justify such interference with the trial Court's exercise of discretion. If it appears to the appellate Court that in exercise of its discretion the trial Court had acted unreasonably or capriciously or has ignored the relevant fact, then it would be open to the appellate Court to interfere with the trial Court's exercise of discretion.

101. Let me now look into Section 16 of the Specific Relief Act. Section 16 of the Specific Relief Act provides that specific performance of a contract cannot be enforced in favour of a person (b) who has become incapable of performing or violates any essential term of the contract that remains to be performed on his part or willfully acts at variance with or in subversion of the relation intended to be established by the contract, or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than the terms performance of which has been prevented or waived by the defendant. Clause (c) has since been explained (I) that it is not essential where the contract involves payment of money, to actually tender to the defendant or to deposit in Court except when so directed by the Court; and (ii) the plaintiff must aver performance of readiness and willingness to perform the contract according to its true construction.

102. A plain reading of Section 16 of the Specific Relief Act makes it clear that in order to obtain specific performance of a contract, the plaintiff has to show that he has not violated any essential term of the contract that on his part remains to be performed or that he has not acted willfully at variance with or in subversion of the relation intended to be established by the contract and that he has averred and proved that he has performed and was always ready and willing to perform the essential terms of the contract to be performed by him unless prevented or waived by the defendant. The ingredients may be specified thus: (1) the plaintiff has become incapable of performing any part of the contract that remains to be performed by him; or (2) he has violated any essential term of the contract that remains to be performed by him; or (3) he acts in fraud of the contract; or (4) he willfully acts at variance with the relation intended to be established by the contract; or (5) he willfully acts In subversion of the relation intended to be established by the contract; or (6) he fails to aver that he has performed the essential terms of the contract to be performed by him; or (7) he was always ready and willing to perform the essential terms of the contract to be performed by him; or (8) he was prevented by the defendant from performing any part of the contract; or (9) the defendant had waived performance of any part of the contract; and (10) he has to prove the conditions contained in (6) to (8). According to the explanation, much readiness and willingness to perform the contract must be according to the true construction of the contract.

103. The King's Bench in Rookey's Case [77 ER 209; (1597)5 Co.Rep.99], it is said :

"Discretion is a science, not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with"

104. The Court of Chancery in Attorney General vs. Wheat [(1759)1 Eden 177; 28 ER 652] followed the Rookey's case and observed :

"The law is clear and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni vin, yet when it is asked, vir bonus est quis The answer is, qui consulta partum, qui leges juraq servat. And as it is said in Rooke's case, 5 Rep. 99 b, that discretion is a science not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every judge."

105. In Satya Jain vs. Anis Ahmed Rushdie, (2013)8 SCC 131, at page 145, the Supreme Court observed : "40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each [pic]case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi (2007) 10 SCC 231 and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. (2012) 5 SCC 712 may be usefully recapitulated."

106. In Nirmala Anand vs. Advent Corpn. (P) Ltd., (2002)8 SCC 146, at page 150, a three Judge Bench of the Supreme Court on a similar issue held as under : "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."

107. In V. Pechimuthu vs. Gowrammal, (2001)7 SCC 617, at page 629 the Supreme Court held as under: "25. Counsel for the respondent finally urged that specific performance should not be granted to the appellant now because the price of land had risen astronomically in the last few years and it would do injustice to the respondent to compel her to reconvey property at prices fixed in 1978.

26. The argument is specious. Where the court is considering whether or not to grant a decree for specific performance for the first time, the rise in the price of the land agreed to be conveyed may be a relevant factor in denying the relief of specific performance. (See K.S. Vidyanadam v. Vairavan). But in this case, the decree for specific performance has already been passed by the trial court and affirmed by the first appellate court. The only question before us is whether the High Court in second appeal was correct in reversing the decree. Consequently the principle enunciated in K.S. Vidyanadam (1997) 3 SCC 1 will not apply."

108. In a judgment dated 22.9.2014 delivered in the Civil Appeal No. 9047 of 2014 titled K. Prakash vs. B.R. Sampath Kumar, reported in AIR 2015 SC 9, the Supreme Court observed that:

"17. The principles which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree is established then the Court has to exercise its discretion in favour of granting relief for specific performance.

19. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed.

20. However, the court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant-owner of the property. This aspect of the matter is considered by a three Judge Bench of this Court in Nirmala Anand vs. Advent Corporation (P) Ltd. and Others, (2002)8 SCC 146."

109. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and mislead the Court then such discretion should not be exercised by refusing to grant specific performance.

110. In my opinion, having regard to the evidence on record and the contentions of the plaintiff, the Trial Court committed no error in declining to grant the discretionary relief of specific performance of the agreement of sale.

111. The first ground is noncompliance of the essential conditions of Section 16(c) of the Specific Relief Act. It provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant. From this provision it is clear that a person who fails to aver and prove that he has performed or has always been ready and willing and is still ready and willing to perform the essential terms of the contract is not entitled to a decree for specific performance of contract. It is essential that the plaintiff has to aver in the plaint that he has performed his part of the obligations under the contract or has always been ready and willing to perform his part of the contract. Readiness and willingness both have to be averred as well as proved by the plaintiff seeking a decree for specific performance. Even if there is averment about the plaintiffs' readiness to perform his part of the obligations under the contract but, there is omission or failure to allege in the plaint the willingness of the plaintiff to perform his part of the obligation under the contract, the suit for specific performance is bound to be dismissed. The law requires that there should be allegation in the plaint regarding readiness and willingness of the plaintiff to perform his part of the obligation under the contract and this readiness and willingness should have always been shown by the plaintiff. In addition to such allegation there should be specific allegation and there should be specific proof by the plaintiff that he has been ready and willing to perform his part of the obligation under the contract. Again if in the evidence mere readiness of the plaintiff is established but not willingness the suit for a specific performance is bound to fail. Similarly, if the willingness of the plaintiff to perform his part of the obligation is proved but not readiness, in that case, no decree for specific performance can be granted. In addition to this, explanation (ii) of Section 16 (c) of the Specific Relief Act provides that for the purposes of clause (c) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

112. In light of this provision, I examined the allegations made in the plaint (the translated copy has been provided by the learned counsel appearing for the plaintiff). I have noticed something very disturbing. The plaintiff has made a false statement on oath in the plaint that on account of noncooperation on the part of the land owners, he was not in a position to complete the legal formalities like obtaining of permission, etc, from the competent authority. At this stage, I may reproduce one paragraph from the Examination-in-Chief of the plaintiff by way of an affidavit under the provisions of Order XVIII Rule 4 of the C.P.C.:

"I the plaintiff has paid full consideration amount to the defendants and the defendants were required to obtain the necessary permissions and to execute the sale deed in favour of me the plaintiff. I the plaintiff has also obtained the necessary permission u/s.43 of Tenancy Act. Even than, the defendants are not interested to execute the sale deed and therefore, I the plaintiff has filed the present suit for declaration and for specific performance of the banakhat."

113. As against the aforesaid statement made by the plaintiff on oath in his Examination-in-Chief, the plaintiff, in his cross-examination, has deposed as under:

"It is true that I the plaintiff had obtained the N.A. permission. The said N.A. permission was granted on 16/9/2000. It is true that as specified in the said N.A. order, I has not deposited the premium amount which came to Rs. 1,02,03,724/payable to the Government. It is true that the said N.A. permission was granted to me in the names of defendants. It is true that the defendants had extended necessary cooperation and support to us for getting N.A. permission and then only, the N.A. permission was granted. It is not true that the Declaration Form filled up by the defendants under the provisions of ULC Act was disposed of before the execution of banakhat1997. I do not know as to whether the said order was passed in the year 1997 or not. It is true that the defendants had informed us about the cancellation of banakhat in the year 2003. I do not remember that the defendants had given me notice through their advocate Shri Shirke directing us not to make any correspondence through Power of Attorney holder. It is true that it was decided in the banakhat that the possession of the land shall be handed over after execution of sale deed. It is true that the possession receipt of suit land was prepared on 21/1/93 but the actual possession of the suit land was not given. It is true that it was decided in the terms and conditions of the banakhat that the possession of the land shall be handed over after execution of sale deed. I know that the sale deed cannot be executed till the land of new tenure land is turned into old tenure land. It is not true that it was decided in the terms and conditions of Banakhat that the saledeed shall be executed only after the land of new tenure land is turned into old tenure land. It is true that the defendants have canceled the banakhat w.e.f. 4/2/2003 and they had given notice to give the amount back. It is not true that I have failed to comply with the terms and conditions of all three banakhats and therefore, I am not entitled to get the relief of specific performance of agreements. It is true that as on today, the names of defendants are seen as the possessors of the land in the revenue records. It is not true that I have filed false petition."

114. It also appears from the materials on record that the plaintiff had asked rather insisted to the land owners to prefer an application under Section 70(o) of the Bombay Tenancy Act. It appears that the insistence to file such application was with an idea that if the owners would have been able to establish that they had purchased the suit land under the provisions of the Act, in their capacity as permanent tenants and held transferable rights in the tenancy of the land, then probably, the first part of Section 43 of the Act would not be applicable and the plaintiff may not have to pay the amount of premium. It has been pointed out that after such application was filed by the land owners at the instance of the plaintiff, it is the plaintiff himself who opposed the same before the competent authority and got it rejected. When I inquired as to why the plaintiff had to do so, I was given to understand that the plaintiff had an apprehension that if such application would be allowed, then the land owners may transfer the land to any other person. I am highlighting all these facts only to indicate that whatever was asked by the plaintiff, the land owners did the same. However, the fact remains that even on the date when the suit was instituted, the land remained of the restricted tenure, and therefore, even if the land owners wanted to execute the sale deed and transfer the land, they could not have done it. I am at one with Mr. Bhatt, the learned counsel appearing for the land owners that how long his clients should have waited. Mr. Bhatt is justified in his submission that the plaintiff had no means or the capacity to get the sale deed executed in his favour after making the necessary payment of premium.

115. The remedy for specific performance is equitable remedy. The equitable principles are incorporated under Section 20 of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting the decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the Court. The Trial Court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses considered the relevant facts and reached a conclusion. In such circumstances, the Appellate Court should be extremely loath and slow to disturb such a conclusion."

110. The Division Bench in Ganpatlal Manjibhai Khatri (supra), has taken note of the decision of the Apex Court in the case of Mayawanti (supra) as extracted in the forgoing paragraphs in this judgement.

(d) Our Opinion of Concurrence:-

111. From the above discussion, we find ourselves in full concurrence with the decisions in Ganpatlal Manjibhai Khatri (supra) and Hasvantbhai Chhanubhai Dalal (supra) in holding that:-

(i) The transaction between the parties being hit by Section 43 of the Tenancy Act and being opposed to the public policy, as explained under Section 23 of the Contract Act, is not maintainable in law.

(ii) There is a clear bar in entering into an agreement to sell of the lands granted under the Tenancy Act, 1948 to the occupant tenant, without previous permission of the Collector.

(iii) If the agreement is entered into in respect of the granted land (land of restrictive tenure under the Tenancy Act) in violation of Section 43, it is invalid.

(iv) Section 23 of the Indian Contract Act, 1872 bars enforcement of a contract if it is forbidden by law. The agreement offending a statute or public policy or forbidden by law is not merely void, but it is invalid from nativity, the term "law" in Section 23 in this Section must be understood in the sense of the term explained in Article 13(3) of the Constitution. Thus, what is done in contravention of the provisions of the law cannot be made the subject matter of an action.

(v) If the contract is expressly prohibited by law, it is void ab initio and cannot be enforced. The Courts cannot grant the decree for specific performance, subject to the permission, which may be obtained by one of the parties from the Collector. The suit filed by the plaintiff for enforcement of the invalid agreement cannot be decreed by the Civil Court.

112. We are in full agreement with a view of this Court in the above noted decisions that the suit for specific performance of contract based on an invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable in law. If an agreement is rendered invalid under Section 43 of the Tenancy Act, 1948, such an agreement is incapable of being specifically enforced. If the agreement of sale itself is invalid, no decree for specific performance can be passed by the trial Court. Section 14(1)(c) of the Specific Relief Act provides inter alia that a contract, which is in its nature, determinable, cannot be specifically enforced. In such circumstances, the suit for specific performance of agreement to sell cannot be decreed.

(e) Dealing with the specific arguments of the learned Advocates of the first set, for the Vendee:-

113. The contention of Mr. Maulik Nanavati, learned advocate appearing for the transferee that Section 43 does not bar or prohibit the transferee of restricted tenure land and rather permit transfer or conveyance of land subject to obtaining prior permission from the Collector, is a result of misreading and misinterpretation of the Section. As discussed above, the provision being couched in a negative language is an absolute prohibition on any transfer or alienation of the restricted tenure land and even an agreement of transfer, unless the permission of the Collector is obtained. The contention that the transaction made without strict compliance of the requirement of Section 43 not having been declared "null and void" in the Statute, such a transaction is not intended by the legislature to be wholly illegal so as to put no legal effect, is also a result of misrepresentation of the provision.

114. Reliance placed on the decision in State of Kerala (supra) to construe the word "invalid" in contra-distinction to the word "nullity" or "void ab initio" is also misplaced one.

115. The submission that the instrument/agreement subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction; until its validity is challenged, its legality is preserved, based on the decision of the Apex Court in the State of Kerala (supra) is a misconceived submission, inasmuch as, the said observations have been made by the Apex Court in light of the controversy before it in a matter arising under the Kerala Land Reforms Act in connection with the proceedings relating to determination of ceiling area of the respondent therein by the Taluk Land Board, Taliparamba. The first respondent therein challenged the proceedings, whereby he was directed to surrender 6.43 acres of land in revision. The Board, exercising revisional powers, issued a revised draft statement and issued notices to the contesting respondents therein, who did not file any objection. Other respondents filed a fresh petition for impleadment, which was allowed by the Board accepting the plea put forward by the respondent regarding tenancy and it was held that the first respondent was holding lands within the ceiling limit and there was no surplus land to be surrendered. The said decision of the Board was assailed by the State of Kerala before the High Court. The High Court had confirmed the decision of the Board. However, in the first instance, the impleadment of the same respondent was already rejected by the Board in its order passed at an earlier point of time and in the revision filed by them, it was held that the tenancy put forward by the said respondents was a collusive attempt between the brother and sisters to defeat the provisions of the Act. The revision filed by the impleaded respondents was, thus, dismissed, in the first instance.

116. The short question which has arisen for consideration before the Apex Court was whether the order passed by the Board in the first instance, rejecting the impleadment application of the said respondents and holding that the tenancy put forward by them was a collusive one, which was also affirmed by the High Court, could be ignored in view of the subsequent order passed by the revision filed by the first respondent. It is in these facts and circumstances of the case, the question regarding the validity of the order passed by the Board was considered by the Apex Court and it was concluded that it was not open to the Board to order impleadment of the respondents No. 3 and 4 in the revised draft statement by the subsequent order in the proceedings drawn by the first respondent. It was held that the High court had committed a grave error of law in holding that the Board while deciding the revision filed by the first respondent, did not decide any question of law erroneously and, thus, in holding that the proceedings rendered inter se parties between the State and respondents No. 3 and 4 which finally stood confirmed by the order of the Board was non-est and could be ignored.

117. The observation of the Apex Court in paragraph no.'7' of the said decision was in the facts and circumstances of the case where only complaint about the initiation of the suo motu proceedings by the Board was that it was not initiated on the intimation by the State Land Board, about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In the said circumstances, it was held by the Apex Court that this was not a case where the infirmity was fundamental.

118. No benefit can be derived from the observations in the said decision, which does not help the learned Advocates relying the same, in the facts and circumstances of the instant case, where the statute itself prohibits transaction by an instrument in writing in the nature of an agreement for transfer of a restricted tenure land.

119. Further to deal with the arguments of the learned Advocates that a conditional decree can be passed based on the decisions pertaining to the transactions hit by Section 63 of the Tenancy Act, 1948, we may note that the contentions placed before us are that there is no bar against the Agreement to Sell and the bar under Section 43 is only against the completed sale. Such agreement which contains averment upon vendor satisfying certain conditions can be specifically enforced by the Civil Court by passing a conditional decree that the transaction would be complete only on satisfying the said conditions. Much emphasis has been laid upon the decision of the Apex Court in Ferrodous Estate (Private) Limited (supra) to substantiate the said point. It was argued that in the said case, the Apex Court has held that in a suit for specific performance, the agreement to Sell which contains a specific clause wherein vendor is mandated to obtain permission from the competent authority under the Tamil Nadu Urban Ceiling Act, is to be enforced by the Civil Court. It was held there that it was incumbent upon the vendors to have obtained the Urban Land Ceiling permission to sell the land that was within their ceiling limit, which they failed to do. It was noted that the Full Bench of the Madras High Court had itself recognized that there may be an agreement with such clause, in which case it is the Court's duty to enforce such clause. It was held therein that the agreement to Sell cannot be said to be void ab initio, the conditional decree for specific performance can be passed in such cases.

120. While placing the said decision, it was urged that the Full Bench judgment of this Court in Shah Jitendra Nanalal (Shah Jitendra Nanalal vs. Patel Lalubhai Ishwarbhai – AIR 1984 GUJ. 145) had been referred and relied upon therein. The submission, thus, is that in the case of an agreement where condition is mentioned in the agreement itself that the Sale Deed would be executed only after obtaining permission from the Collector, it would be the duty of the Court to pass a conditional decree mandating the vendor to obtain permission and execute the Sale Deed. The Civil Court will not let the vendor to go scot free, who has pocketed sale consideration on the assurance that the Sale Deed would be executed after obtaining sanction from the Collector.

121. We may note that the Full Bench decision of this Court in Shah Jitendra Nanalal (supra) was considered and discussed by two benches of this Court in Rameshbhai Chaturbhai Prajapati (supra) and Hasvantbhai Chhanubhai Dalal (supra). It was held therein that the decision of the Full Bench was in a different context and under the statutory provisions of the Urban Land (Ceiling and Regulation) Act, 1976 where the right to claim exemption under Section 20 of the said Act was available to the holder of the excess vacant land. It was noted in paragraph '20' in Ramesh Chaturbhai Prajapati (supra) and paragraph '45' in Hasvantbhai Chandubhai Dalal (supra); respectively, as under :-

Ramesh Chaturbhai (supra):-

"20. The decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on 1.7.1967 and the civil suit, being Civil Suit No. 1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No. 2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under section 20 of the ULC Act was held to be permissible. In the facts of the case, transfer/alienation of tenure land viz. a land given to a tenant by the Government under various provisions of Tenancy Act to the tiller of the land, subject to restriction of Section 43 of the Act, is clearly impermissible without previous sanction of the Collector/Competent Authority, therefore, the law laid down by the Full Bench in Jitendra Nanalal [supra] is not applicable to the facts and circumstances of the present case.

Hasvantbhai (supra)

45. I may now refer to one another decision rendered by a learned Single Judge of this Court in which the Full Bench decision of this Court in the case of Jitendra Nanalal Shah (supra) has been referred to and discussed. In the case of Rameshbhai Chaturbhai Prajapati (supra). The issue before the learned Single Judge revolved around the non-irrigated agricultural lands which originally belonged to a Charitable Trust. One Rasiklal Tilakram Jaiswal was declared as a tenant of the said land by the Mamlatdar and A.L.T. in the tenancy proceedings. By virtue of such declaration, Rasiklal became the deemed purchaser thereof and the same was confirmed by the Gujarat Revenue Tribunal, thereafter by this Court and by the Apex Court. The respondents Nos. 1 to 8 before the learned Single Judge preferred four suits against the petitioners and the respondents Nos. 9 to 11 for a declaration that the registered sale deed dated 14th October 1999 in respect of the plot Nos. 1 to 4 were not binding on the plaintiffs and for a declaration that the petitioners were not entitled to demand from the respondents Nos. 10 and 11 any building permission and further to restrain them from dealing, plotting, alienating, allotment, etc. of the land in question. In the pending suits, a compromise was arrived at between the petitioners and the respondents Nos. 1 to 8 and the same was reduced into writing. It appears that the Trial Court declined to accept such compromise and pass a consent decree on the premise that such compromise was in violation of the provisions or restrictions under Section 43 of the Act and no consent decree could be passed on such a invalid settlement. Before the learned Single Judge, it was argued that the parties can enter into a contract for transfer of land and the Court can pass a conditional decree for specific performance subject to the sanction being obtained. For the purpose of making such submission good, reliance was placed on the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra). The learned Single Judge, while rejecting all the petitions and while discussing the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra) at length, held as under:

"20. The decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on 1.7.1967 and the civil suit, being Civil Suit No. 1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No. 2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under section 20 of the ULC Act was held to be permissible. In the facts of the case, transfer/alienation of tenure land viz. a land given to a tenant by the Government under various provisions of Tenancy Act to the tiller of the land, subject to restriction of Section 43 of the Act, is clearly impermissible without previous sanction of the Collector/Competent Authority, therefore, the law laid down by the Full Bench in Jitendra Nanalal [supra] is not applicable to the facts and circumstances of the present case.

22. In the case of V. Narasimharaju (AIR 1963 SC 107) [supra], the Apex Court held with regard to unlawful consideration that the agreement would be treated as invalid for the reason that such consideration is opposed to public policy and particularly when previous sanction of the Collector was a mandatory and, admittedly, such previous sanction was not obtained by the parties and the agreement to sell an agricultural land is invalid and even Section 53A of the Transfer of Property Act, 1882 would also not safeguard such agreement. The above aspect is also dealt with by the Bombay High Court in the case of Himatrao Ukha Mali vs. Popat Devram Patil, AIR 1999 Bombay 10, [supra], wherein it is held that Section 43 imposes a total prohibition or legal bar on alienation of the lands vested in favour of the tenants under the provisions of the Tenancy Act. If an agreement of sale or any instrument in respect of the subject land is executed without taking previous sanction of the Collector under section 43(1) of the Tenancy Act, the said agreement shall be invalid as per Section 43(2) of the said Act. Suffice it to say that Section 43(1) of the Tenancy Act bars even entering into agreement or alienating the land and usage of term 'shall' twice in the section including in the penultimate part of the section reveals mandatory character of the language contained therein and to be interpreted as such and, particularly when the agreement/ transaction was barred by subsection (1) of Section 43 of the Tenancy Act and subsection (2) of Section 43 of the said Act clearly refers such agreement or transfer shall be invalid, the trial court has rightly concluded by not probing into the question of declaration of such transaction/agreement as invalid. The satisfaction of the learned Judge based on the understanding of the language contained in subsections (1) and (2) of Section 43 of the Tenancy Act and the relevant materials on record of the case for not passing the decree as prayed for cannot be said to be in any manner contrary to law warranting any interference by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.

24. Further, the Division Bench of this Court considered spectrum of Section 43 of the Tenancy Act in the case of Shashikant Mohanlal Desai {AIR 1970 Gujarat 204} [supra] and examined the objects of the Act and while interpreting Section 43 of the Tenancy Act the restrictive nature of tenancy and specific bar contained about previous sanction of the Collector/Competent Authority in case of conversion of such land was held to be statutory and, therefore, according to this Court, the learned Judge has not committed any error either of jurisdiction or of law in considering the nature of agreement whether void or voidable and, therefore, no interference is called for. Further, the learned Judge has taken into consideration all the aspects of the matter as directed by this Court [Coram: M.R. Shah, J.] vide judgment and order dated 22.8.2008 in Special Civil Application Nos. 3117 to 3120 of 2008 and passed the order, which cannot be said to be contrary to said order dated 22.8.2008.

26. In the case of Lotan Ramchandra Shimpi [Manu/ MH/0784/1994] {supra}, it is held that, without sanction under Section 43 of the Tenancy Act, the impugned agreement is invalid and possession given to the purchaser is invalid and the same is not protected under Section 53A of the Transfer of Property Act."

122. It is clear that the proposition of law laid down by the Division Bench in Shah Jitendra Nanalal (supra) was in the circumstance that the right to claim exemption by the owner of the land under the Urban Land (Ceiling and Regulation) Act, was continued till the vesting of the land under Section 10(3) of the Ceiling Act and in such circumstances, a conditional decree for specific performance subject to the exemption being obtained under Section 20 of the Ceiling Act was held permissible. Distinguishing the same, in paragraph '46' in Hasvantbhai Dalal (supra), it was, thus, recorded that :

"46. The proposition of law has been made very clear by the learned Single Judge while distinguishing the Full Bench decision in the case of Shah Jitendra Nanalal (supra). The learned Single Judge has taken the view that the right to claim exemption by the owner of the land under the U.L.C. Act would continue till the vesting under Section 10(3) of the U.L.C. Act and in such circumstances, a conditional decree for specific performance subject to the exemption being obtained under Section 20 of the U.L.C. Act would permissible. However, transfer/alienation/agreement to sale of tenure land i.e. the land given to a tenant by the Government under the various provisions of the Tenancy Act subject to the restriction of Section 43 of the Act, is clearly impermissible without the previous sanction of the Collector. In my view, the position of law as regards Section 43 of the Tenancy Act is very clear in view of the two decisions referred to above and discussed above. There is no scope for this Court to take any different view on this issue. Even otherwise, the two decisions of the Coordinate Bench are binding to this Court."

123. The decision of the Apex Court in Ferrodous Estate (supra) heavily relied by the learned Advocates of the first set was considered in a recent decision in G.T.Girish (supra) to note that the High Court had dismissed the suit for specific performance taking the view that till 1999, when the Tamil Nadu Urban Land Ceiling Act was repealed, the agreement was not enforceable. That apart, under the agreement, vacant land, in the aggregate, exceeding ceiling limit of the plaintiff would have to be conveyed to him, attracting the VETO contained in Section 5(3) read with Section 6 of the State Act. The Apex Court while reversing the said decision arrived at the conclusion that the agreement to sell contemplated transfer of the land only after getting exemption. Clause (4) of the agreement contemplated that the vendor was to obtain permission from the competent authority under the Urban Land Ceiling Act and hence, the conditional decree can be passed by the Civil Court.

124. It was then observed in paragraph '77' in G.T.Girish (supra) as under :-

"77. We need not multiply authorities. All that is necessary to notice and find is that when an agreement to sell is entered into, whereunder to complete the title of the vendor and for a sale to take place and the sale is not absolutely prohibited but a permission or approval from an Authority, is required, then, such a contract is, indeed, enforceable and would not attract the shadow of Section 23 of the Contract Act, 1872."

125. From the above discussion, it is evident that Section 23 of the Contract Act, 1872 will not be attracted in a case where the agreement to Sell or sale is not absolutely prohibited but a permission or approval from the authority is required to complete the sale or attach validity thereto. In light of the above, when we note the provisions of Section 43 of the Tenancy Act, 1948, it prescribes of complete prohibition in execution of even an agreement in writing to transfer a land of restricted tenure without the previous sanction of the Collector. As noted hereinbefore, as discussed by the Division Bench of this Court in Shashikant Mohanlal Desai (supra), the sanction of the Collector required in Section 43 is not a mechanical exercise. The Collector will examine the facts and circumstances of the case to decide whether in the exigency of the situation or consistent with the purpose of the Act, the tenant should be permitted to transfer the land. As emphasized therein, the power of the Collector is not to be exercised lightly, rather it is a power which must be exercised with great care and circumspection having regard to the policy of the statute and bearing in mind various circumstances relating to proposed transfer. As held therein, in view of the negative language of the statute, the two conditions of transfer in Sub-section (1) of Section 43 are of mandatory character.

126. We have, thus, not been able to convince ourselves with the submissions of the learned Advocates placing reliance on various decisions noted hereinbefore that a conditional decree can be passed by the Civil Court, in case the agreement hit by Section 43 of the Tenancy Act'1948, contains a condition that permission of Collector would be obtained prior to the execution of the sale deed. It needs no emphasis that Section 43 not only prohibits transfer by sale, lease etc., but it expressly prohibits execution of an agreement in writing, to transfer a land by sale, lease etc., without complying with the conditions in Sub-section (1) of Section 43.

127. Coming to the decisions relied by the learned Advocates in the matter of agreements executed in violation of Section 63, as noted hereinbefore, there is a radical difference between the language of the two statutes. Section 63(1) though couched in negative language but the first proviso attached to sub-section (1) qualifies the negative language employed in the main Sub-section (1), makes an agreement made by an instrument in writing for sale, lease etc. to a non-agriculturist, invalid. The first proviso to Sub-section (1) of Section 63, however, attaches validity to such transfer on the grant of permission by the Collector or an officer authorized by the State Government in this behalf, on such conditions as may be prescribed.

128. A careful reading of Sub-section (1) of Section 63 with the first proviso attached to the same gives a clear indication that though an instrument of transfer or an agreement made by an instrument in writing for the transfer in favour of a non-agriculturist shall not be valid, but on the permission being granted by the Collector or the officer authorized by the State Government in this behalf, on the conditions as may be prescribed in the order of permission, such a transfer can be validated. The reading of the Sub-section (1) of Section 63 with the first proviso attached thereto makes it clear that though there is a restriction on transfer to a non-agriculturist, but there is no absolute bar as contemplated in Section 43 about transfer of a land of restrictive nature without the previous permission of the Collector.

129. We may note that as per the principles of Statutory interpretation, the real nature of a proviso or the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein, which but for the proviso would be within the purview of the enactment. The discussion in this regard in the 15th Edition of the "Principles of Statutory Interpretation by G.P.Singh" is to be extracted hereinunder :-

"3.9.1 Its Real Nature

The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As stated by Lush J :

When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.

In the words of Lord Macmillan :

The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. The proviso may, as Lord Macnaghten laid down, be "a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. The general rule has been stated by Hidayatullah, J in the following words :

As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule.

And in the words of Kapur, J :

The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment."

130. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.

131. In light of the above noted rule of statutory interpretation, on a careful reading of the first proviso to Sub-section (1) of Section 63, it is clear that the proviso qualifies the main Sub-section (1) to the extent that on a permission being granted by the Collector or an officer authorized by the State Government in this behalf, on such conditions as may be prescribed, that an agreement made by an instrument in writing for transfer by way of sale, gift, exchange etc. or an instrument for transfer by sale, gift, etc. to a non-agriculturist, would be valid. The bar in Sub-section (1) of Section 63 on such transfer is qualified with the first proviso attached to the said sub-section.

132. In view of the above discussion with regard to the language employed in Section 43, we are not impressed with the arguments of the learned Advocates based on the judgments pertaining to the agreements hit by Section 63 of the Tenancy Act, that an agreement hit by Section 43 of the Tenancy Act, 1948 would not be illegal or void and can be specifically enforced by the Civil Court by granting a conditional decree mandating the vendor to seek permission of the Collector and execute the sale deed. We are afraid to agree with the said contention in view of the clear difference in the language employed in two provisions, namely Section 43 and 63 of the Tenancy Act, 1948.

(f) Effect of Section 84C, 85 and 85A of the Tenancy Act, 1948:-

133. Coming to the last submission of the learned Advocates that the inquiry into the validity of the agreement cannot be made by the Civil Court and such an inquiry can only be made by the Mamlatdar under Section 84C of the Tenancy Act, 1948 and hence, the Civil Court has no option but to stay the proceedings of the suit and relegate the parties to approach the Mamlatdar on the question about the validity of the agreement. The contention is that the Civil Court will not be able to adjudicate on the question as to whether the agreement is in breach of the provisions of the Tenancy Act, 1948 and hence, at the stage of Order VII Rule 11 CPC, there is no occasion for the Civil Court to dismiss the suit holding that the agreement, which is the basis of the suit, is an invalid document.

134. The contention, thus, is that the dismissal of the suit for specific performance of an agreement hit by Section 43(1) of the Tenancy Act, 1948, under Order VII Rule 11 CPC would be an illegal exercise by the Civil Court, beyond its jurisdiction. The said submission is based on a further reading of Sections 85 and 85A of the Tenancy Act.

135. To deal with the same, we may first note Section 84C, 85 and 85A as under :-

"84C. (1) Where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold any inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not invalid.

(2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid, [unless the parties to such transfer or acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land alongwith the rights and interest therein to the position in which it was immediately before the transfer or acquisition, and the land is so restored within that period]:

[Provided that where the transfer of land was made by the landlord to the tenant of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed the ceiling area, the Mamlatdar shall not declare such transfer to be invalid-

(i) if the amount received by the landlord as the price of the land is equal to or less than the reasonable price determined under section 63A and the transferee pays to the State Government a penalty equal to ` 1 within such period not exceeding three months as the Mamlatdar may fix;

(ii) if the amount received by the landlord as the price of the land is in excess of the reasonable price determined under section 63A and the transferor as well as the transferee pays to the State Government each a penalty equal to one-tenth of the reasonable price within such period as may be fixed by the Mamlatdar.]

(3) On the declaration made by the Mamlatdar under sub-section (2),-

(a)the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting and shall be disposed of in the manner provided in sub-section (4); the encumbrances shall be paid out of the occupancy price in the manner provided in section 32Q for the payment of encumbrances out of the purchase price of the sale of land but the right of the holder of such encumbrances to proceed against the person liable, for the enforcement of his right in any other manner, shall not be affected;

(b) the amount which was received by transferor as the price of the land shall be deemed to have been forfeited to the State Government and it shall be recoverable as an arrear of land revenue; and

(c) the Mamlatdar shall, in accordance with the provisions of section 63A determine the reasonable price of the land.

(4) After determining the reasonable price, the Mamlatdar shall grant the land on new and impartible tenure and on payment of occupancy price equal to the reasonable price determined under sub-section (3) in the prescribed manner in the following order of priority:-

(i) the tenant in actual possession of the land;

(ii) the persons or bodies in the order given in the priority list:

[Provided that where the transfer of land was made by the landlord to the tenant of the land and area of the land so transferred together with the area of the land, if any, cultivated personally by the tenant did not exceed the ceiling area then-]

(i) 3 [if the amount] received by the transferor as the price of the land is equal to or less than the reasonable price, the amount forfeited under sub-section (3) shall be returned to the transferor and the land restored to the transferee on payment of a penalty of rupee one in each case; and

(ii) 3 [if the amount] received by the transferor as the price of the land is in excess of the reasonable price, the Mamlatdar shall grant the land to the transferee on new and impartible tenure and on payment of occupancy price equal to one-tenth of the reasonable price and out of the amount forfeited under sub-section (3), the transferor shall be paid back an amount equal to nine-tenths of the reasonable price.]

(5) The amount of the occupancy price realised under sub-section (4) shall subject to the payment as aforesaid of any encumbrances subsisting on the land, be credited to the State Government:

Provided that where the acquisition of any excess land was on account of a gift or bequest, the amount of the occupancy price realised under sub-section (4) in respect of such land shall, subject to the payment of any encumbrances subsisting thereon, be paid to the donee or legatee in whose possession the land had passed on account of such acquisition.

Explanation.-For any purposes of this section "new and impartible tenure" means the tenure of occupancy which is non-transferable and non-partible without the previous sanction of the Collector.]

85. (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the mamlatdar or Tribunal, a manager, 2 [the Collector, the Gujarat Revenue Tribunal or the State Government] in appeal or revision or the 4 [State] Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Tribunal, the Collector or the 3 [Gujarat Revenue Tribunal] or the 4 [State] Government made under this Act shall be questioned in any civil or criminal court.

Explanation.-For the purposes of this section a Civil Court shall include a Mamalatdar's Court constituted under the mamlatdar's Courts Act, 1906.

[85A. (1) If any suit 6 [instituted, whether before or after the specified date in any Civil Court] involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or dealt with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation.- For the purpose of this section a Civil Court shall include a Mamalatdar's Court constituted under the mamlatdar's Courts Act, 1906.]"

136. A conjoint reading of the aforesaid provisions indicates that there is a clear bar of jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Tenancy Act, 1948 required to be settled, decided or dealt with by the Mamlatdar etc. Section 85A provides that wherever such an issue is raised before the Civil Court, it shall stay the suit and refer such issue to such competent authority for determination. Section 84C provides that in a case where a dispute has arisen in respect to the transfer or acquisition of land made on or after the commencement of the Amended Act, 1955, or if the Mamlatdar suo motu or on the application of any person interested in such land, has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act, it shall issue notice and hold an inquiry to decide as to whether the transfer or acquisition is or is not valid. Sub-section (3) of Section 84C further provides that in case of a declaration made by Mamaltdar under Sub-section (2) after holding such inquiry that the transfer or acquisition of land to be invalid, the land shall be deemed to vest in the State Government free from all encumbrances.

137. From a bare reading of the above provisions, there is no doubt that any dispute relating to validity of an agreement executed in violation of Section 43 of the Tenancy Act, 1948, if arises, shall have to be decided by the Mamlatdar and Civil Court will have no jurisdiction to decide the disputed questions relating to validity of such an agreement.

138. We may clarify that we are not concerned with the dispute pertaining to the validity of an agreement, i.e. the dispute whether an agreement is hit by Section 43 or not, i.e. whether it is valid or not The issue before us is plain and simple; as to whether the agreement which has been executed with a view to transfer a restricted tenure land as prescribed in Section 43(1), without the permission of the Collector, can be specifically enforced by the Civil Court by granting a decree of specific performance of such an agreement." Our concern is about the jurisdiction of the Civil Court to decide on the question of enforceability of such an agreement of sale, which in our considered opinion clearly resides in the Civil Court as held by the Division Bench in Ganpatlal (supra) The Civil Court alone will have jurisdiction to adjudicate on the question of enforceability of the agreement of sale, on the basis of which the suit for specific performance has been executed. It is the Civil Court which alone can look into the fact as to whether the agreement on the basis of which the suit for specific performance is instituted is a valid agreement, not hit by any statutory provision, or forbidden by law or opposed to public policy.

139. The question as to enforceability of an agreement hit by Section 43 of the Tenancy Act, 1948, to grant a decree of specific performance, cannot be by any stretch of imagination, a question within the scope of the jurisdiction of the revenue authority under the Tenancy Act, 1948. There is no gainsaying that Civil Court will not be required to stay a suit for specific performance based on an agreement hit by Section 43(1) of the Tenancy Act, 1948 and relegate the parties to approach the Mamaltdar to decide on the question of validity of such an agreement.

(g) Enforceability of the agreement hit by Section 43 of the Tenancy Act:-

140. In the end, on the issue of grant of decree of specific performance of an agreement to sell which is contrary to the statutory provisions, we may refer to the decision of the Apex Court in Narayanamma (supra) wherein applying various tests, referring to the decision of the Apex Court in Kedar Nath Motani (Kedar Nath Motani vs. Prahlad Rai, AIR 1960 SC 213) it was held that if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering active assistance of the Court in enforcing an agreement which is contrary to law. A ticklish question has also arisen in the situation of the said case where both the parties were common participators in the illegality. Referring to the opinion of Hidayatulla, J in Kedar Nath Motani (supra) and the opinion of Gajendragadkar, J in Immani Appa Rao (Immani Appa Rao Vs. Gollapalli Ramalingamurthi, AIR 1962 SC 370) it was noted that where the claim of the plaintiff is entirely based upon an agreement which is hit by the statutory provisions, although illegality is not pleaded by the defendant nor sought to be relied upon by him in defence, yet the Court itself, upon the illegality appearing from the evidence will take notice of it and will dismiss the action on the doctrine ex turpi causa non oritur actio, i.e. no polluted hand shall touch the pure fountain of justice.

141. It was held therein that as against rendering active assistance of the Court in enforcing an agreement which is contrary to law, if the balance is tilted towards the defendant, no doubt that they would stand benefited even inspite of they committing illegality, however, in such course, what the Court would be doing is only rendering an assistance which is wholly of a passive character. As held by Gajendragadkar, J in Immani Appa Rao (supra), the first course would be clearly and patently inconsistent with the public interest, whereas the latter course is lesser injurious to public interest than the former.

142. The position of law is, thus, clear that any transfer in violation of the statutory provision being invalid or illegal in the eye of law cannot be enforced by the Civil Court by granting a decree of specific performance on conditional basis, even if the defendant is benefited to some extent by the order of the Civil Court. The arguments of the learned Advocates that the defendant-vendor having pocketed the sale consideration cannot be permitted to claim for dismissal of the suit on the principle that "No act of Court can prejudice a party", does not merit consideration.

(h) Object and scope of Order VII, Rule 11 of Code of Civil Procedure:-

143. Now coming to the powers of Civil Court in rejecting the suit summarily under Order VII, Rule 11 of the Code of Civil Procedure, we may note the observations of the Apex Court on the object and scope of Order VII, Rule 11 of the Code of Civil Procedure in Dahiben (supra). The dispute in the said case arises out of an order, wherein the Civil Court held that the suit of the plaintiff was barred by limitation and allowed the application under Order VII, Rule 11 (d) of the Code of Civil Procedure. In First Appeal, the High Court has affirmed the findings of the trial Court rejecting the suit being barred by law of limitation.

144. While examining the law applicable for deciding an application under Order VII, Rule 11 of the Code of Civil Procedure, it was noted by the Apex Court that the remedy under Order VII, Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss the suit at the threshold, without proceeding to record evidence and conducting the trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in the said provision. The underlying object of Order VII, Rule 11 is that if no cause of action is disclosed in the plaint or the suit is barred by limitation, as per Order VII, Rule 11(a)(d), the Court would not permit the plaintiff to unnecessarily protract the proceedings under the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

145. The decision of the Apex Court in Azhar Hussain (Azhar Hussain vs. Rajiv Gandhi, 1986 Supp SCC 315) was considered wherein it has been held by the Apex Court that the whole purpose of conferment of powers under Order VII, Rule 11 of the Code of Civil Procedure is to ensure that the litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the Court.

146. It was noted therein that the power under Order VII, Rule 11 of the Code of Civil Procedure may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. It was contended that the plea that once the issues are framed, the Court must necessarily go to trial was repelled by the Apex Court in Azhar Hussain (supra).

147. The test for exercising the power under Order VII, Rule 11 of the Code of Civil Procedure is that if the averments made in the plaint are taken in entirety in conjunction with the documents relied upon; would the same result in a decree being passed. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the Court would be justified in exercising the power under Order VII, Rule 11 of the Code of Civil Procedure. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law or judicial dicta for deciding whether the case for rejecting the plaint at the threshold is made out. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant and cannot be adverted or taken into consideration.

148. The decision of the Apex Court in the case of Haresh Ores (P) Ltd. (Haresh Ores (P) Ltd. vs. Hede & Co., 2007 (5) SCC 614) was noted to record in Dabhiben (supra) that:

"23.12 In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact D. Ramachandran vs R.V. Janakiraman.

It was further held in Dabhiben (supra)that:

"23.15 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

4. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In Swamy Atmanand v. Sri Ramakrishna Tapovanam8 this Court held :

"24.1 A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"

(emphasis supplied)

24.2 In T. Arivandandam v. T.V. Satyapal & Anr.9 this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words :-

"5. ...The learned Munsiff must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has 8 (2005) 10 SCC 51.

9 (1977) 4 SCC 467. created the illusion of a cause of action, nip it in the bud at the first hearing ..."

(emphasis supplied)

24.3 Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal,10 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

24.4 If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal11 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."

149. The law laid down by the Apex Court in Dahiben(supra) has been relied by the Division Bench of this Court in Vijaybhai Shambhubhai Patel (supra) to note that when the transfer was restricted by and could not be made without the prior permission of the Collector, no suit can be entertained for specific performance of any agreement executed without prior permission. It was noted that the date of agreement is important as on the execution of agreement, the consideration of the agreement was invalid. The Court has no power to order specific performance of agreement having invalid consideration. It is prime question at the time of allowing specific performance that whether the agreement for which specific performance is sought was valid or invalid If the answer is received as invalid, then the position of law is binding on the Court.

150. Considering the law pertaining to power of the Civil Court to reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure, we may extract the said provision as under:-

"11. Rejection of plaint.-The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails comply with the provision of Rule 9.

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."

151. On a careful reading of the provision in Order VII, Rule 11 of the Code of Civil Procedure and the law laid down by the Apex Court in Dahiben (supra), in light of the dispute before us, we may note that in order to maintain the suit for specific performance of agreement, which is hit by Section 43(1) of the Tenancy Act, 1948, the plaintiff would be required to disclose the cause of action for seeking a decree of specific performance of such an agreement. The cause of action for a suit for specific performance of an agreement of refusal by the Vendor inspite of readiness and willingness of the vendee to execute the sale deed, will not be existing in a case where the agreement itself is invalid being hit by Section 43(1), inasmuch as, no cause of action can be said to have arisen asking the defendant to perform his part of the contract when there is no sanction and the agreement itself is illegal or invalid. Further, on the averments made in the plaint, in conjunction with the documents relied upon by the plaintiff, the Civil Court will be in a position to ascertain the question of enforceability of the agreement. It will be in a position to ascertain that the agreement, which is the basis of the suit, whether is hit by Section 43(1) or not, inasmuch as, to seek a decree of specific performance of agreement, the plaintiff is required to disclose and establish two circumstances: (i) firstly, that the documents, which is the basis of the suit is a valid document in the eye of law and (ii) secondly, that the cause of action has arisen prior to the presentation of the plaint. If the documents, i.e. the agreement is an illegal or invalid document in the eye of law, the Civil Court from the statement in the plaint itself will ascertain the suit being barred by law. In any case, a suit basis of which is an invalid document in the eye of law or where there exists no cause of action to institute the suit on the date of the presentation of the plaint, the Civil Court will have no option but to reject the plaint, at the threshold, under Order VII, Rule 11 of the Code of Civil Procedure. The arguments that the Civil court will be required to frame the issue as to the validity of the agreement, which is the basis of the suit and must necessarily proceed with the trial to arrive at the decision as to whether the decree of specific performance of an agreement hit by law, is to be granted or not, does not appeal to us.

Conclusion:-

152. In view of the above discussion from all angles of the matter, we endorse the ratio of the decisions of this Court in Hasvantbhai Chhanubhai Dalal versus Adesinh Mansinh Raval and others; Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor ; Vijaybhai Shambhubhai Patel versus Sushilaben Dayalbhai Vijay versus Sushilaben Dayalbhai ;Hardikbhai Harshadbhai Patel Versus Amarsang Nathaji as himself and as Karat and Manager ; Naranbhai Kanjibhai Gajera versus Vinodbhai Shankarbhai Patel, wherein it has been held that the trial Court shall be right in rejecting the plaint under Order VII Rule 11 of the Code of Civil Procedure on the ground that the suit for specific performance based on illegal and invalid agreement for sale is not maintainable. The law laid down therein is a good law.

153. We are in respectful agreement with the decision of the Division Bench in Naranbhai Kanjibhai Gajera (supra), holding that the Division Bench decision in Amarben (supra) can be said to be 'per incuriam' ignoring statutory provisions and in view of the decision of another Division Bench dated 21.06.2021 in Vijaybhai Shambhubhai Patel (supra), which was challenged in Special Leave to Appeal (Civil) No. 5124 of 2022, and which has been dismissed vide judgement and order dated 10.11.2022 affirming the Division Bench judgement in Vijaybhai Shambhubhai Patel (supra).

154. There is no other contrary decision placed before us.

155. The question of reference framed by us "whether the plaint is liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure on the ground that the suit for specific performance of contract based on an illegal or invalid agreement to sell, hit by Section 43 of the Tenancy Act, 1948, is not maintainable" is answered in the "AFFIRMATIVE". The Reference is answered, accordingly.