Specific performance and new pleas in second appeal: agreement to sell not barred, limitation and fresh defences not entertained.

An agreement to sell was treated as not creating an interest in immovable property, so it did not amount to a transfer or alienation barred by section 48(d) of the Maharashtra Co-operative Societies Act, and remained capable of specific performance. The plaintiff's readiness and willingness was upheld on the basis of concurrent factual findings. The plea of limitation, being a mixed question of law and fact and not having been specifically raised below, was not entertained in second appeal. A new plea under section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act was also refused because it had not been pleaded or urged in the courts below and lacked the necessary factual foundation.

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Issues: (i) Whether an agreement to sell was hit by the prohibition in section 48(d) of the Maharashtra Co-operative Societies Act, 1960 and therefore unenforceable by specific performance; (ii) whether the plaintiff had proved readiness and willingness; (iii) whether the plea of limitation could be entertained in second appeal; and (iv) whether a new plea based on section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act could be raised for the first time before the Supreme Court.

Issue (i): Whether an agreement to sell was hit by the prohibition in section 48(d) of the Maharashtra Co-operative Societies Act, 1960 and therefore unenforceable by specific performance.

Analysis: An agreement for sale does not by itself create any interest in immovable property, and therefore does not amount to a transfer or alienation within the meaning of section 48(d). The Court also accepted the factual finding that the dues of the Land Development Bank had been repaid, which removed the factual basis for invoking the statutory bar.

Conclusion: The agreement was not hit by section 48(d) and remained capable of specific performance.

Issue (ii): Whether the plaintiff had proved readiness and willingness.

Analysis: The first appellate court had examined the pleadings and evidence and recorded a finding that the plaintiff was ready and willing to perform the contract. That finding was one of fact and could not be disturbed in second appeal in the absence of any legal infirmity.

Conclusion: The finding of readiness and willingness was upheld.

Issue (iii): Whether the plea of limitation could be entertained in second appeal.

Analysis: The plea of limitation had not been specifically raised before the trial court or the first appellate court. It was also a mixed question of law and fact, and could not properly be examined for the first time in second appeal.

Conclusion: The limitation plea was not entertained.

Issue (iv): Whether a new plea based on section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act could be raised for the first time before the Supreme Court.

Analysis: The plea had not been pleaded or urged before the courts below. The Court therefore declined to permit its introduction for the first time under Article 136 of the Constitution of India, particularly since it involved factual foundations.

Conclusion: The new plea was rejected as not entertainable at this stage.

Final Conclusion: The concurrent findings of the courts below were sustained, and the decree for specific performance stood undisturbed.

Ratio Decidendi: An agreement to sell does not create an interest in immovable property, and a plea involving mixed questions of law and fact cannot be raised for the first time in second appeal or under Article 136 without proper pleadings and foundation.

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