- (1.) Leave granted.
(2.) Defendant No. 2 in the Original Suit No. 358 of 1988 filed in the Court of the Additional Civil Judge, Hubli is the appellant, herein. Defendant No. 1 - respondent No. 8 herein is a charitable trust. By a registered deed dated 5-7-1951, the plaintiff - respondent No. 1 purchased the lease hold rights in respect of the land together with the superstructure standing thereupon from Shri Hasansab Bepari. In the year 1955, the original defendant No. 1 filed a suit against several persons. Plaintiff got herself impleaded as a defendant therein. Defendant No. 1, having regard to the fact that the plaintiff had already purchased the superstructure, agreed to sell the land to her by an agreement dated 26-2-1980 for a consideration of Rs. 25,000/-. Out of the said amount, a sum of Rs. 8000/- was paid by way of earnest money. The relevant term of the said agreement reads as under : "The said Rayanal math, being a public math, the necessary permission required to sell the said math properties shall be obtained from the Charity Commissioner, Belgaum and the Deputy Commissioner, Dharwad, and after intimating you about the same and receiving the balance consideration amount within one month thereafter, sale deed shall be executed in the presence of the sub-registrar".
(3.) Admittedly, in terms of the said agreement, permission from the Charity Commissioner in terms of section 36 of the Bombay Public Trust Act was required to be taken. On or about 30-10-1982, an order was passed by the Charity Commissioner directing that the land should be sold in public auction and the highest bidder should be permitted to purchase the suit land. Defendant No. 1, purported to be in pursuance thereof and in furtherance of the said order, by a notice dated 22-4-1983, stated : "As stated above, the Charity Commissioner has granted permission subject to certain conditions. Therefore, you are hereby informed that my client intends to conduct the public auction as per the order of the Charity Commissioner within a few days. If you intend to purchase the said property you may participate in the public auction. You will be entitled to adjust the earnest money paid by you against the bid amount. In case you are unable to purchase the said properties in the public auction, my client is willing to refund the balance of the earnest money paid by you after deducting appropriate amount as mesne profits you your (sic) occupation till now. You are entitled to receive such amount. You may understand that the contracts till now are cancelled. This notice dated 22-4-1983 is for your information.";