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M.V Shankar Bhat And Another v. Claude Pinto Since (Deceased) By Lrs. And Others
Factual and Procedural Background
Plaintiff 1, a practising advocate and tenant in part of the suit premises, offered to purchase the property bequeathed under a will dated 25-4-1972 executed by the deceased owner, Montu Mary Pinto. The will appointed Defendant 1 (a son of the testatrix) as sole executor and authorised him to sell the property or, alternatively, to consent to a partition among the legatees. On 4-12-1979 an “agreement of sale” was executed between Plaintiff 1 and Defendant 1 “for self and as executor”, but expressly stated it was “subject to ratification by the co-heirs”. When the other legatees did not execute sale deeds, the plaintiffs filed a suit for specific performance on 24-1-1989.
The trial court decreed the suit on 11-3-1993. On appeal, the Karnataka High Court reversed the decree on 4-4-1996, holding that no concluded contract existed and declining equitable relief. The plaintiffs (appellants) sought further appeal before the Supreme Court of India, resulting in the present judgment.
Legal Issues Presented
- Whether the clause “subject to ratification by the co-heirs” in the agreement dated 4-12-1979 rendered it a conditional arrangement or a concluded contract capable of specific performance.
- Whether Defendant 1, as executor under Sections 211(1) and 307(1) of the Indian Succession Act, 1925, possessed an absolute power of sale overriding the legatees’ alternative right to seek partition.
- Whether the suit abated on the death of the sole executor (Defendant 1) or could validly proceed against the legatees brought on record as his legal representatives.
- Whether, in the exercise of discretion under Section 20 of the Specific Relief Act, 1963, a decree for specific performance ought to be granted in light of the parties’ conduct and subsequent events.
Arguments of the Parties
Appellants’ Arguments
- The High Court erred in construing the will; the executor’s statutory power to sell (Succession Act, ss. 211 & 307) trumped any legatee right to partition.
- The phrase “subject to ratification by the co-heirs” was inserted solely for Plaintiff 1’s benefit and could therefore be waived by him; hence the contract was concluded.
- Upon the executor’s death, the trial court rightly proceeded against the legatees; Section 212(1) of the Succession Act did not mandate appointment of a new executor.
- The High Court wrongly invoked equity; no undue influence was proven and the trial court’s findings on fairness remained unchallenged.
Respondents’ Arguments
- The parties themselves contemplated that all legatees, not merely the executor, would convey title; hence ratification by co-heirs was a condition precedent, leaving no concluded contract.
- Defendant 1 acted as one of the legatees, not solely as executor; therefore the absolute power of sale under the Succession Act was irrelevant.
- The restriction was not for the buyer’s benefit; Plaintiff 1, being both tenant and advocate, leveraged his position and created fear of Rent Controller intervention, obtaining the agreement unfairly.
- Equitable considerations under Section 20 of the Specific Relief Act, coupled with subsequent partition decrees and non-payment of consideration, made specific performance oppressive and unjust.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| P.H. Alphonso v. Irene Dias, (1967) 2 Mys LJ 465 | Executor’s statutory power to sell under the Indian Succession Act is absolute. | Recognised the principle but held it irrelevant because the agreement itself was contingent and unenforceable. |
| Babuain Chandrakala Devi v. Pokhraj Kuer, AIR 1963 Pat 2 | Same proposition on executor’s power of sale. | Distinguished on the same ground as above. |
| Dr Jiwan Lal v. Brij Mohan Mehra, (1972) 2 SCC 757 | A contractual clause inserted for the purchaser’s benefit may be waived by him. | Held inapplicable; the clause here benefited the vendor’s co-heirs, not the purchaser. |
| Henry Earnest Meaney v. E.C. Eyre Walker, AIR 1947 All 332 | Absent unconditional acceptance, no concluded contract arises. | Relied upon to conclude that the contract, being subject to third-party assent, was incomplete. |
| Warehousing & Forwarding Co. of East Africa Ltd. v. Jafferali & Sons Ltd., 1964 AC 1 | Where a contract is “subject to ratification”, neither party is bound until ratification is communicated. | Applied directly to hold that no enforceable contract existed without co-heir ratification. |
| Koenigsblatt v. Sweet, (1923) 2 Ch 314 | Ratification can relate back when the other party is unaware of the agent’s limited authority. | Cited by analogy; distinguished because here the purchaser knew of the limitation. |
| V. Muthusami v. Angammal, (2002) 3 SCC 316 | Courts may refuse specific performance on equitable grounds under Section 20, Specific Relief Act. | Used to justify refusal of decree given plaintiffs’ conduct and delay. |
| Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 8 SCC 146 | Same equitable discretion principle. | Reinforced the decision to decline specific performance. |
Court's Reasoning and Analysis
1. Construction of the Will: The will granted the executor liberty to sell but simultaneously conferred on the legatees an option to partition. If the legatees opted for partition before a sale, the executor was bound to consent.
2. Surrounding Circumstances: Plaintiff 1 was both tenant and legal adviser to Defendant 1. He repeatedly expressed interest in purchasing and warned Defendant 1 of potential Rent Controller allotment, thereby wielding superior bargaining power.
3. Nature of the Agreement: The agreement, drafted by Plaintiff 1, stated that conveyance was “subject to ratification by the co-heirs”. Draft sale deeds and correspondence showed intention that all legatees would execute the transfer, not merely the executor.
4. Legal Effect of “Subject to Ratification”: Relying on Black’s Law Dictionary, Collins’ Dictionary, Henry Earnest Meaney, and the Privy Council in Warehousing & Forwarding, the Court held that such words make ratification a condition precedent. Until ratification, no concluded contract arises and specific performance cannot lie.
5. Executor’s Statutory Power: Although Sections 211 and 307 grant an executor authority to sell, it was immaterial because Defendant 1 acted also as a legatee and voluntarily imposed the ratification condition.
6. Equitable Discretion: The plaintiffs paid no consideration, the property had since been partitioned among the heirs, and Plaintiff 1’s conduct (creating a “scare” regarding Rent Control) rendered enforcement inequitable. Guided by precedents such as Muthusami and Nirmala Anand, the Court declined to exercise its discretionary jurisdiction.
Holding and Implications
APPEAL DISMISSED.
Consequently, the decree for specific performance granted by the trial court remains set aside; the plaintiffs obtain no right to purchase the property. The decision underscores that agreements contingent on third-party ratification are not specifically enforceable unless the condition is fulfilled, and it reaffirms the court’s broad equitable discretion under Section 20 of the Specific Relief Act. No new precedent was created on executor powers, but the judgment fortifies the principle that conditional contracts cannot be forced through specific performance.
S.B Sinha, J.— Plaintiffs are in appeal before us. Plaintiff 1 was a tenant in a part of the premises in question, which belonged to Montu Mary Pinto, since deceased. She died in 1974. She executed a will and last testament [Exhibit P-2(2-A)] on or about 25-4-1972 whereby Defendant 1 was appointed as the sole executor. The relevant clauses of the said will are:
“After my death the executor of this will shall take possession of my entire properties and manage them. He shall also obtain court probate upon this will after my death, and sell away my said properties for the best price possible to others. He shall minus the expenses met by him for obtaining the probate etc. and divide the balance sale price amount unto four equal shares and pay one such share out of the same to my son Stanley T. Thomas alias Stanley Pinto and another such share to my son Victor L. Pinto and obtain receipts from them. He shall further pay out of his own share to each of his own children who are living now and who will be born to him hereafter Rs 100 (one hundred) each and keep the rest of the amount for himself and he shall also pay out of the share amount of my said daughter a sum of Rs 600 (six hundred) to her son Sunil Rodrigues and pay also Rs 100 (one hundred) each to each of her living children and also to those who may be born to her hereinafter and pay the balance leftover to my said daughter.
That if my said heirs desire to partition my property among themselves after my death, the executor shall consent to it and do so by the help of two independent arbitrators and divide them into four equal lots as decided by the arbitrators and grant each such lot to each one of my said heirs who shall each inherit the respective properties absolutely with entire right. But in these circumstances the amounts mentioned to be paid out as stipulated hereinabove shall be paid by the holders of the property shares concerned.”
2. Indisputably the said will was probated. Defendant 1, however, as executor or otherwise did not sell the property immediately. While he was toying with the idea of alienating the suit property, the plaintiff-appellant who is a practising advocate and whose advices had been sought for as regards possible legal impediments, if any, in relation thereto, offered himself as a willing purchaser. A large number of correspondences passed between the parties. The evidence on record shows that Plaintiff 1 drafted the agreement for sale and handed over the same to Defendant 1 who made corrections therein. On or about 4-12-1979, an agreement of sale was entered into between the parties, para 1 whereof is in the following terms:
“That in consideration of second party agreeing to pay to first party a total price of Rs 1,23,750 (Rupees one lakh twenty-three thousand seven hundred and fifty) only, the first party for self and as executor hereby agrees to convey the property described in the schedule hereto subject to ratification by the co-heirs to terms hereinafter appearing.”
(emphasis supplied)
3. It appears from the records that the plaintiff advised Defendant 1 to obtain power of attorney from the other legatees so that all of them can execute the deeds of sale jointly. Two such draft sale deeds were prepared; one to be executed in favour of Plaintiff 1 and another in favour of Plaintiff 2 who was the nominee of Plaintiff 1.
4. As Defendant 1 did not execute the deeds of sale purported to be in terms of agreement dated 4-12-1979, the plaintiffs filed the suit for specific performance of contract on or about 24-1-1989. Defendant 1 contested the said suit raising various pleas, whereupon the learned trial court, inter alia, framed the following issues:
(1) Whether the defendant, as executor of the will of his mother, is not competent to sell the plaint schedule property without the consent or approval of the other legatees under will?
(2) Does the first plaintiff prove that the document dated 4-12-1979 is valid and binding on the defendant and that he is entitled to enforce the terms mentioned therein?
(3) Does the first plaintiff prove that there was a concluded agreement for sale between him and the defendant dated 4-12-1979?
(4) Whether the second plaintiff can seek specific performance of the agreement dated 4-12-1979?
Additional issues
(1) Whether Defendants 2 to 7 would be put to great hardship if the agreement of sale is to be enforced?
(2) Whether the plaintiff took unfair advantage in obtaining the suit agreement of sale as contended in the written statement by the defendants?
5. The learned trial court by its judgment and decree dated 11-3-1993 decreed the suit. Aggrieved by and dissatisfied therewith, Defendant 1 preferred an appeal. The High Court of Karnataka by its judgment dated 4-4-1996 passed in RFA No. 296 of 1993 reversed the said judgment. The High Court formulated the following points for its consideration:
(1) Whether the executor has absolute powers to sell the immovable property bequeathed completely ignoring the provision made in the will dated 25-4-1972 for partition of the said property among the legatees?
(2) Whether the agreement to sell dated 4-12-1979 executed by the first defendant subject to ratification of the terms and conditions contained therein by the other co-heirs is a concluded contract?
(3) Whether the suit OS No. 26 of 1981 was rightly proceeded with in law bringing Defendants 2 to 7 as legal representatives of the deceased sole executor, the first defendant?
(4) Whether on the facts and in the circumstances of the case, the trial court is justified in decreeing the suit of the plaintiffs for specific performance?
6. All the questions were answered by the High Court against the appellants.
7. Mr K.N Bhat, learned Senior Counsel appearing on behalf of the appellants, would submit that the High Court committed a serious error in construing the will to the effect that the right of the legatees to ask for partition shall prevail over the right of the executor to sell the property. The learned counsel would submit that having regard to the provisions contained in Sections 211(1) and 307(1) of the Indian Succession Act, 1925, the executor has an absolute right to dispose of the property of the testator and in that view of the matter the question of the legatees exercising their right of partition in preference to the executor's right to sell the property which would otherwise be in consonance with the aforementioned provisions of the Indian Succession Act, did not arise.
8. Mr Bhat would urge that the expression used in the said agreement to sell dated 4-12-1979 “subject to ratification by the co-heirs to terms hereinbefore appearing” must be held to have been inserted for the benefit of Plaintiff 1 and as such he was at liberty to waive his right. In support of the aforementioned contentions reliance was placed on P.H Alphonso v. Irene Dias (1967) 2 Mys LJ 465, Babuain Chandrakala Devi v. Pokhraj Kuer AIR 1963 Pat 2, 1962 BLJR 874 and Jiwan Lal (Dr) v. Brij Mohan Mehra (1972) 2 SCC 757, (1973) 2 SCR 230.
9. It was pointed out that the executor of the will Claude Pinto, Original Defendant 1, died on 15-12-1988 and having regard to the fact that the legatees had been brought on record as his legal representatives in respect whereof the trial court held that the suit did not abate, the High Court committed a manifest error in holding that it was obligatory on the part of the plaintiffs to approach the District Judge for appointment of another executor of the will in view of Section 21(1) of the Indian Succession Act. As regards Point (4), it was submitted that having regard to the fact that the trial court negatived the contention raised on behalf of the defendants that Plaintiff 1 was not the lawyer of Defendant 1 and, thus, there was no question of any undue influence, having not been disturbed by the High Court, it erred in holding that it is not fair and equitable to pass a decree for specific performance of contract.
10. Mr S.K Gambhir, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the parties to the agreement proceeded on the basis that the deed of sale was to be executed by the legatees and not by the original defendant in his capacity as executor. The learned counsel would contend that it is one thing to say that in terms of Sections 211 and 307 of the Indian Succession Act, a right of the executor of the will to alienate the property of the testator is absolute but in the instant case, the original defendant did not exercise his right as an executor but only as one of the legatees. Mr Gambhir would urge that having regard to the fact that in the agreement of sale dated 4-12-1979, a stipulation was specifically inserted at his instance that the same was “subject to ratification by other co-heirs”, no concluded contract was arrived at and in that view of the matter the suit for specific performance was not maintainable.
11. Mr Gambhir would further submit that the materials brought on record by the parties would clearly demonstrate that the said restriction was inserted not for the benefit of Plaintiff 1 at all. Mr Gambhir argued that the sequence of events would clearly demonstrate that Plaintiff 1 took undue advantage of his position as a tenant as also a practising advocate. The learned counsel pointed out that in view of the provisions of the Karnataka Rent Control Act, as it then prevailed, the Rent Controller had the absolute jurisdiction to induct a tenant as and when a tenanted premises is vacated. It was pointed out that Plaintiff 1's legal advice was sought for by the said defendant as to how to prevent such action on the part of the Rent Controller. At that time he was advised that in the event an agreement of sale is executed, such a contingency can be avoided.
12. The learned counsel, however, conceded that the High Court may not be correct in its view that although the legatees had already been brought on record on the death of the original defendant, it was obligatory on the part of the plaintiffs to approach the District Judge with a prayer to appoint another executor in his place.
13. The learned counsel supported the judgment of the High Court as regards its refusal to exercise of discretionary power in terms of Sections 20(2)(b) of the Specific Relief Act, 1963. Our attention has been drawn to the fact that in the suit for specific performance of the contract, the other respondents herein filed an application for getting impleaded as parties but the same was rejected. A revision application filed thereagainst by the respondents was also dismissed by the High Court observing that they were free to file a suit for partition. Relying on or on the basis of such observation of the High Court, a suit for partition was filed to the knowledge of the plaintiffs. The same was decreed. The house in question was allotted in favour of the respondents according to the respective shares. Respondent 6 also took certain steps against Plaintiff 1 as a tenant wherein also Plaintiff 1 did not examine himself or questioned the validity of the decree passed in the partition suit. The learned counsel pointed out that the plaintiffs did not pay a single penny to the respondents and furthermore, keeping in view the subsequent events, namely, the decree passed in the partition suit, it may not be equitable to grant a decree for specific performance of the agreement of sale at this distant point of time.
14. The core question which, in our opinion, arises for our consideration in this appeal is as to whether the restrictive covenant contained in the agreement dated 4-12-1979 would amount to a conditional agreement or a concluded contract and/or whether the same was for the benefit of Plaintiff 1.
15. A bare perusal of the will dated 25-4-1972 leaves no manner of doubt that although thereby the original defendant was given liberty to sell the property in question and distribute the amount received thereby in the manner stated therein but the legatees have also been given an option to partition the property. Once such a desire is expressed before a deed of sale is executed, the executor had no other option but to consent thereto.
16. It is in the aforementioned backdrop, the conduct of the parties may be noticed. Plaintiff 1 was a tenant in respect of a part of the premises in suit. The other part of the premises was occupied by one Venketesh. The evidence on record clearly shows that the parties to the agreement were in correspondence. The original defendant took the legal advice of Plaintiff 1 as regards the effect of the said will in 1974. Plaintiff 1 advised the original defendant to obtain a probate. He also gave an advice that steps are required to be taken under the Urban Land (Ceiling and Regulation) Act. The correspondence passed between the parties would clearly show that they were on good terms.
17. A question also arose as to whether any lease in favour of Plaintiff 1 without filing any declaration under the Urban Land (Ceiling and Regulation) Act would be valid or not or whether they could take action for regularisation thereof. The question as regards sale of property appears to have cropped up in February 1977 whence Original Defendant 1 by a letter dated 11-2-1977 addressed to Plaintiff 1 informed him that he had obtained a probate and he is required to take action in terms thereof. It was in that connection a query was made “if we (presumably the legatees) wanted to dispose of the property, would it be necessary to take permission from the court or the land ceiling authority”. Plaintiff 1 by his letter dated 19-3-1977 gave his advice in detail on his proposal to dispose of the property saying:
“If you want to dispose of the property, permission of the court is unnecessary. But the permission of competent authority under the Land Ceiling Act is necessary. Only after you fix up a buyer, necessary formalities can be gone through. There is no provision for obtaining a blanket permission to sell. The formalities are quite laborious and in some (sic). If you have any particular buyer in mind and only after such and you agree, then only you can think of obtaining the permission of the competent authority. In passing I may mention that if you have any idea to sell the property or any portion thereof, please let me place my first offer. Probably even Mr Venketesh might be interested to buy though I have not specifically asked him….”
18. Original Defendant 1 thereafter visited Mangalore and discussed about the pros and cons of selling the property with the plaintiff, which would appear from his letter dated 20-3-1978. He again wanted Plaintiff 1's advice on certain matters. Plaintiff 1 pointed out several disadvantages in respect of the property in question which may be proved to be impediments in the matter of getting good price. He in his letter dated 9-4-1978 contended:
“It is difficult to give current market price in terms of square metres because land in Mangalore is even now sold only in terms of cents. Your plot is mulageni plot. It is situated by the side of a lane in which no heavy vehicle can pass through. There are two disadvantages which will diminish the value. Any building licence at Mangalore will be granted only after the land is converted as house site as per Section 95 of the Land Revenue Act, the authority to grant conversion certificate (popularly called NOC) being the Deputy Commissioner, conversion will be granted only to an owner applicant and not to a mulagenidar applicant. No new building can be easily constructed on your plots without doing some understand (sic underhand) work in the offices concerned. On the main road side, near Kamath Nursing Home, Mr Prabhu who owns lands, has recently sold them at the rate of about Rs 3 to 3 ½ thousand per cent of land. Your lands may fetch about Rs 2 to 2 ½ thousand and the buildings being of mud will not fetch any value. Again, a third-party purchaser will consider the question whether he gets actual possession or not.”
19. Yet again in the said letter, Plaintiff 1 made an offer to purchase the property on his own behalf as well as on behalf of Mr Venketesh.
20. Original Defendant 1 was merely nurturing the idea of selling the property. Various correspondences passed between the parties and whenever any occasion arose, Plaintiff 1 renewed his offer. In the meantime, Mr Venketesh was transferred to Bangalore and although he retained the possession of the tenanted premises for some time, but later on vacated the same. In terms of the provisions of the Karnataka Rent Control Act, in the event a tenanted premises falls vacant, the Rent Controller may allow the same to another person. Sections 4 and 5 of the Karnataka Rent Control Act, 1961 read thus:
“4. Intimation of vacancy by landlords.—(1) Every landlord shall, within fifteen days after the building becomes vacant by his ceasing to occupy it or by the termination of a tenancy or by the eviction of the tenant or by the release of the building from requisition, or otherwise, give intimation in the prescribed form by registered post to the Controller.
(2) Except as provided in this Part, no person shall let, occupy or otherwise use any building which becomes vacant without the landlord giving intimation under sub-section (1) and for a period of fifteen days from the date on which the intimation is received by the Controller or within a period of one week after the termination of the proceedings under Section 8, if any, whichever is later:
Provided that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in clause (h) of the proviso to sub-section (1) of Section 21 or to any building which has been released from requisition for the use and occupation of the landlord himself:
Provided further that if the building is not occupied in accordance with an order for possession under clause (h) of the proviso to sub-section (1) of Section 21, or if the building is not occupied by the landlord after its release from requisition, within a period of two months from the date of such order or release, as the case may be, the landlord shall immediately after the said period of two months or within such further time as the Controller may allow, give intimation to the Controller in accordance with the provisions of this sub-section and for this purpose the buildings shall be deemed to have become vacant on the date of the expiry of the said period of two months.
(3) Any landlord who contravenes the provisions of sub-section (1) or (2) shall, on conviction, be punished with fine which may extend to one thousand rupees:
Provided that such fine shall not be less than fifty rupees.
(4) Nothing contained in this section shall apply—
(i) to a residential building the monthly rent of which does not exceed fifteen rupees per month or the annual rental value of which does not exceed one hundred and eighty rupees; or
(ii) to a non-residential building the monthly rent of which does not exceed twenty-five rupees or the annual rental value of which does not exceed three hundred rupees; or
(iii) to any building in any city, town or village owned by any local authority, company, association or firm, whether incorporated or not and bona fide intended solely for the occupation of its officers and servants employed in the same city, town or village.
5. Order of leasing of vacant building.—(1) The Controller may, by order in writing served on the landlord, direct that any vacant building, whether intimation of its vacancy has been given by the landlord under sub-section (1) of Section 4 or not, be given to the landlord for his use and occupation or on lease to such public authority or other persons as he may think fit:
Provided that where such building is a residential building no such order shall be made in favour of a person not being the landlord, who or any member of whose family owns a residential building in the same city or town or village in which the vacant building is situated.
Explanation.—A building may be directed to be leased under this section notwithstanding that it is subject to an agreement of lease or has been let or occupied in contravention of sub-section (2) of Section 4.
(2) Any landlord who contravenes an order made under sub-section (1) shall, on conviction, be punished with simple imprisonment for a term which may extend to three months or with fine or with both.”
21. By a letter dated 30-10-1979 (Exhibit D-40) Plaintiff 1 intimated to Defendant 1 about the visit of the Rent Controller and the latter having made queries as regards the status of the tenanted premises. Plaintiff 1 stated that he had tried to see that the Inspector does not file his report. He also intimated that he had spent Rs 50 for keeping the matter in abeyance.
22. By a letter dated 13-11-1979 (Exhibit D-41), Plaintiff 1 informed Defendant 1 that somebody had complained to the Rent Controller and as such he would have to submit a report. Yet again by a letter dated 19-11-1979 (Exhibit D-42), he advised the original defendant that in the event he received notice, it will be appropriate that he appears through a lawyer and contest the proceedings. He stated:
“… Once the lawyer appears he can ask for time for filing objection etc. and the allotment can be stalled. If decision goes against us, we can appeal to DC and then to the High Court.
In the meantime, our High Court has ruled that if owner requires release of building for sale, the Rent Controller should ordinarily accept it.”
23. However, it does not appear from the records that any provision of law or any judgment of the High Court had been rendered to the effect that in the event a landlord requires the premises for the purpose of selling the same, Sections 4 and 5 of the Karnataka Rent Control Act would not apply. Plaintiff 1 in his deposition stated:
“… Through Ext. D-42 I have not given advice to the defendant as suggested by you that the Mysore High Court ruled that if the agreement is executed in respect of the vacant tenanted house it cannot be allotted to anybody. It is not true to suggest that I got executed Ext. P-10 mentioning to the defendant that the vacant house of his cannot be allotted by the Rent Controller….”
He further stated:
“… In my letter at Ext. D-41, I assured him that I would protect his interest before the Rent Controller. But in Ext. D-41, I have asked him to send a vakalat form i.e duly signed by him to me. In Ext. D-40 I informed him to act quickly and preferably to visit Mangalore and save the house from Rent Controller. After Ext. D-40, he came to Mangalore during 1st week of December 1979. I cannot say as to how many days prior to the sale agreement at Ext. P-10 he came from Bombay to Mangalore….”
24. It is evident that negotiation for selling the property in question started in the aforementioned backdrop of events and ultimately the agreement of sale was executed.
25. Mr Gambhir, therefore, in our opinion is right in contending that Plaintiff 1 created a scare in the mind of Defendant 1 about the house being allotted to some other person by the Rent Controller. Plaintiff 1 evidently had an upper hand when negotiation for sale of the house between him and Original Defendant 1 took place.
26. The agreement of sale in question was, admittedly, drafted by Plaintiff 1. He in his deposition stated:
“The defendant is a law graduate and an officer in Tata Company. The defendant read the contents of Ext. P-12, and made corrections therein. The corrections made by the defendant in Ext. P-12 are at Exts. P-12(a), P-12(b), P-12(c) and P-12(d). The defendant himself wrote the description of the suit property in the schedule to the agreement at Ext. P-12(e). After correction made by the defendant at Ext. P-12(b), I carried out the same by correcting in Ext. P-12 in the language of lawyer.”
27. It would, therefore, not be correct to contend that the restrictive covenant was inserted for the benefit of Plaintiff 1. Furthermore, if the agreement was entered into by him only as an executor of the will, it was not necessary for him to write that the same was being executed for self as well as an executor. He, therefore, wanted to convey the property also as a legatee and/or one of the heirs of his mother, Mrs Minto Mary Pinto apart from being the executor of the will.
28. In the aforesaid context only the expression “subject to ratification by the co-heirs” must be interpreted.
29. The draft sale deeds which were marked as Exhibits D-15 and D-23 were also drafted by Plaintiff 1. It appears from the letter dated 21-1-1980 that Plaintiff 1 asked Defendant 1 to get power(s) of attorney executed by his brothers and sister in his favour, the drafts whereof were also prepared by him. The draft sale deed would clearly demonstrate that the property in suit was to be executed by Stanley T. Thomas, Victor L. Pinto, Mrs Agnee Rodrigues nee Pinto, represented by their brother and power-of-attorney holder Claude Pinto having been authorised by Nos. 1 and 2 as per power of attorney (dated blank) and by Claude Pinto.
30. It, therefore, cannot be said that the intention of the parties was that Defendant 1 would alienate the property in suit as executor of his mother's will.
31. When an agreement is entered into subject to ratification by others, a concluded contract is not arrived at. Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract.
32. The word “subject to” has been defined in Black's Law Dictionary, 5th Edn., at p. 1278, inter alia, as: “subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for”. In Collins' English Dictionary the words “subject to” have been stated to mean as: “under the condition that: we accept, subject to her agreement”.
33. The said agreement for sale, therefore, was not enforceable in a court of law.
34. In Henry Earnest Meaney v. E.C Eyre Walker AIR 1947 All 332 the law is stated in the following terms: (AIR p. 334, para 11)
“11. Apart from this, we are of the opinion that there was no completed contract between the parties. We have already said that in the plaint the plaintiff alleged that the letter of Mr Meaney dated 29-8-1941, was an offer and the telegram dated 31-8-1941, was the acceptance by which the contract was completed. In his arguments before us learned counsel for the plaintiff-respondent admitted that the letter of 29-8-1941, was nothing more than an invitation to offer and the plaintiff's telegram dated 31-8-1941, must be taken as a definite offer of purchase made on his behalf. We have already said that the letter of 1-9-1941 was not an absolute and unqualified acceptance of the offer as required by Section 7, Contract Act. In the letter there was no doubt an expression of the willingness to sell the land to the plaintiff, but then it was qualified by the statement that the defendant would sell the land to the plaintiff if it was not wanted by others who might have a right of pre-emption. The plaintiff was not able to rely on any correspondence after 1-9-1941, for his argument that there was a completed contract between the parties. It was not till about 2-10-1941, that the parties met when Mr Meaney came to Dehradun. It is nobody's case that there was an oral contract entered into between the 2nd and 4th October. On 4th October we know that the plot of land which the defendants intended to sell and the plaintiff intended to purchase was measured and was found to be less than five bighas in area and the whole talk fell through.”
35. In Warehousing & Forwarding Co. of East Africa Ltd. v. Jafferali & Sons Ltd. 1964 AC 1, (1963) 3 All ER 571, (1963) 3 WLR 489 (PC) the Privy Council held:
“If Elliott contracted subject to ratification by his principal there would be no concluded contract until ratification had been obtained. The respondents contended upon the authority of Koenigsblatt v. Sweet (1923) 2 Ch 314 that ratification by the principal can operate back to the date when the contract was made by the agent without the necessity of communication to the other party. But in that case the limitation of the agent's authority was not known to the other contracting party. In such a case the agent contracts as principal and his principal is bound upon ratification taking place. When, however, the other party to the contract has intimation of the limitation of the agent's authority neither party can be bound until ratification has been duly intimated to the other party to the contract. It would be contrary to good sense to hold that a concluded contract had been made in these circumstances.”
36. In Dr Jiwan Lal case (1972) 2 SCC 757, (1973) 2 SCR 230 whereupon reliance has been placed by Mr Bhatt, clause 6 of the agreement was as under:
“6. In the event of the abovesaid premises, which is the subject-matter of sale not being vacated by the Income Tax Authorities or is subsequently requisitioned by the Government prior to the registration of the sale deed the vendor shall refund to the purchaser the sum of Rs 10,000 (Rupees ten thousand only) received by the vendor as earnest money plus interest at the rate of 6 per cent per annum.”
37. Having regard to the nature of the transaction and keeping in view the materials on record it was held that clause 6 aforementioned was for the benefit of the purchaser and in that situation, this Court held that the same may be waived. Such is not the position here.
38. It is, however, beyond any cavil that in terms of Sections 211(1) and 307(1) of the Indian Succession Act, the executor of a will has an absolute right to transfer the property as has been held in Babuain Chandrakala Devi case AIR 1963 Pat 2, 1962 BLJR 874 and P.H Alphonso case (1967) 2 Mys LJ 465.
39. However, in the instant case the question was as to whether in the facts and circumstances of the case a concluded contract can be said to have been arrived at. Having regard to the discussions made hereinbefore, we have no hesitation in holding that the agreement of sale in question could not have been specifically enforced and in that view of the matter the question as to whether Original Defendant 1 had an absolute right to dispose of the property in question in exercise of his power as an executor of the will or not takes a back seat.
40. In any event, having regard to the facts and circumstances of this case and in particular the subsequent events as well as conduct of Plaintiff 1, we are of the opinion that it is not a fit case where the discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. [See V. Muthusami v. Angammal (2002) 3 SCC 316 and Nirmala Anand v. Advent Corpn. (P) Ltd. (2002) 8 SCC 146]
41. The appeal being devoid of any merit is, therefore, dismissed but without any order as to costs.
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