IMPORTANT POINT
The agreement to sell is not for the benefit of the plaintiff and is conditional and is thus not enforceable in a Court of law, particularly under Specific Relief Act, 1963.

Headnote:Specific Relief Act, 1963-Section 20-Discretionary jurisdiction of Court-Indian Succession Act, 1925-Sections 211(1) and 307(1)-Defendant 1 (an heir) was appointed executor of a Will by testator to sell property and distribute the proceeds to legatees-Agreement to sell with plaintiff-appellant who was a tenant of that property "subject to ratification by the co-heirs to terms herein after appearing"-Suit for specific performance-Decreed by trial Court-Reversed in appeal by High Court-Appeal to Supreme Court-Whether the restrictive covenant in the agreement dated 4.12.79 would amount to a conditional agreement or a concluded contract? (The former)-Whether it was for the benefit of plaintiff No. 1? (No) (see para 26) interpretation of expression subject to ratification by the co-heirs -(Karnataka Rent Control Act, 1961-Sections 4 and 5-Intimation of vacant building and order of leasing it out).
       Held : 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. (Para 30)
       The said agreement for sale, therefore, was not enforceable in a court of law. (Para 32)
       Held also : 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 Smt. Babuain Chandrakala Devi s case (supra) and P.H. Alphonso s case (supra). (Para 37)
       Held : 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 is as to whether the Original Defendant No. 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. (Para 38)
       Held in addition : In any event, having regard to the facts and circumstances of this case and in particular the subsequent events as well as the conduct of the Plaintiff No. 1, we are of the opinion that it is not a fit case where a discretionary jurisdiction of this Court in terms of Section 20 of the Specific Relief Act, 1963 should be exercised. [See V. Muthusami (Dead) by Lrs. vs. Angammal and Others (2002) 3 SCC 316 and Nirmala Anand vs. Advent Corporation (P) Ltd. and Others [(2002) 8 SCC 146]. (Para 39)
       Held finally : The appeal being devoid of any merits, therefore, dismissed but without any order to costs. (Para 40)

JUDGMENT

S.B. Sinha, J.-Plaintiffs are in appeal before us. Plaintiff No. 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 (2A) on or about 25-4-1972 whereby Defendant No. 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 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 Staneley T. Thomas alias Stanley Pinto and another such share to my son Victor L. Pinto and obtain receipt from them. He shall further pay 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 Rodrigurs 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 left over 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 hereabove shall be paid by the concerned holders of the property shares."

2. Indisputably the said Will was probated. Defendant No. 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 practicing 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 the Plaintiff No. 1 drafted the agreement for sale and handed over the same to Defendant No. 1 who made corrections therein, On or about 4.12.1979, an agreement of sale was entered into between the parties, paragrapgh 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 No. 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 No. 1 and another in favour of Plaintiff No.2 who was the nominee of the Plaintiff No. 1.

4. As Defendant No.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 No.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

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2003 Supreme(SC) 186

IMPORTANT POINTThe agreement to sell is not for the benefit of the plaintiff and is conditional and is thus not enforceable in a Court of law, particularly under Specific Relief Act, 1963.

Cases Referred (3)

IMPORTANT POINT
The agreement to sell is not for the benefit of the plaintiff and is conditional and is thus not enforceable in a Court of law, particularly under Specific Relief Act, 1963.