2003 (2) TMI 490 - SC - Indian Laws

Summary

Issues Involved:
1. Competence of the Executor to sell the property without consent of other legatees.
2. Validity and enforceability of the agreement dated 4-12-1979.
3. Existence of a concluded agreement for sale.
4. Right of the second plaintiff to seek specific performance.
5. Hardship to defendants if the agreement is enforced.
6. Allegation of unfair advantage taken by the plaintiff.

Summary:

Issue 1: Competence of the Executor to Sell Property
The court examined whether the Executor, Defendant No.1, had the absolute power to sell the property without the consent of other legatees. The Will dated 25.4.1972 allowed the Executor to sell the property but also gave the legatees an option to partition the property. The court concluded that if the legatees expressed a desire to partition before the sale, the Executor must consent to it.

Issue 2: Validity and Enforceability of Agreement Dated 4-12-1979
The agreement of sale dated 4.12.1979 was scrutinized. The court noted that the agreement was subject to ratification by the co-heirs, indicating it was not a concluded contract. The restrictive covenant was not for the benefit of Plaintiff No.1, and thus, the agreement was not enforceable.

Issue 3: Existence of a Concluded Agreement for Sale
The court determined that the agreement was conditional and not a concluded contract. The term "subject to ratification by the co-heirs" indicated that the agreement required approval from other legatees, making it a condition precedent for a concluded contract.

Issue 4: Right of the Second Plaintiff to Seek Specific Performance
The court found that the second plaintiff could not seek specific performance as the agreement itself was not enforceable due to the lack of a concluded contract.

Issue 5: Hardship to Defendants if the Agreement is Enforced
The court considered the hardship that would befall Defendants 2 to 7 if the agreement was enforced. Given the subsequent events, including a partition suit and the allocation of the property to the respondents, enforcing the agreement would not be equitable.

Issue 6: Allegation of Unfair Advantage Taken by the Plaintiff
The court found that Plaintiff No.1, a practicing advocate, had an upper hand and created a scare in the mind of Defendant No.1 regarding the Rent Controller's actions. This undue influence and the subsequent conduct of Plaintiff No.1 led the court to conclude that it was not fair and equitable to decree specific performance.

Conclusion:
The appeal was dismissed as the agreement dated 4.12.1979 was not a concluded contract and could not be specifically enforced. The court also decided not to exercise its discretionary jurisdiction in favor of the plaintiffs under Section 20 of the Specific Relief Act, 1963.