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TMI Blog1968 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant filed O.S. No. 196 of 1948 in the Subordinate Judge's Court, Vijayawada for dissolution of the partnership and for accounts. On December 20, 1951 a preliminary decree was granted in that suit. The first respondent was added as 17th defendant in that suit. He contended in that suit that the managing partner of the firm had covenanted to sell to him the site leased out and that in any event he was not liable to eviction in view of the provisions of the Madras Buildings (Lease and Rent Control) Act. In 1950, before the passing of the preliminary decree, a suit was filed in the District Munsiff's Court, Vijayawada O.S. No. 440 of 1950 by the firm and its managing partner against the 1st respondent and others seeking to evict the 1st respondent. On December 20, 1951 a preliminary decree was passed in O.S. No. 196 of 1948 but it was made subject to the rights of the 1st respondent and without prejudice to his contentions. There was a direction in the preliminary decree to sell the properties of the partnership firm and a receiver was appointed for that purpose. On February 17, 1952 the appellant was transposed as the 3rd plaintiff in O.S. No. 440 of 1950 in the District Munsiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, O.S. No. 1 of 1956. For the same reasons he held that in the suit for partition namely, O.S. No. 2 of 1956 the appellant was entitled to 62 shares and he granted a decree for partition and possession thereof as also damages at the rate of Rs. 2,000/- per annum from May 1, 1950 to the date of the delivery of possession of his shares. The 1st respondent took the matter in appeal before the High Court of A. P.-A.S. No. 380 of 1956 against O.S. No. 1 of 1956 and A.S. No. 381 of 1956 against O.S. No. 2 of 1956. By a common judgment dated March 25, 1960 the High Court allowed both the appeals. It was held by the High Court that the oral agreement pleaded by the 1st respondent was true and that the appellant was not a bona fide purchaser for value without notice. The High Court accordingly decreed the suit for specific performance. The decree in the partition suit O.S. No. 2 of 1956 was therefore varied. The appellant's share was fixed at 23/160th. A direction was also given by the High Court that in the actual partition, as far as possible, the lower court should allow to respondent No. 1 that portion of the site on which the cinema theatre building constructed by him stood and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 is corroborated by P.W. 7 who said that except the women shareholders all other shareholders were http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8 present at the meeting of July 6, 1952 and the subject for consideration was the sale of the site of the cinema theatre to respondent No. 1. He added that the price of the whole site was fixed at Rs. 67,500/- and that all the partners except the appellant agreed to sell, away their shares. On behalf of the appellant reference was made to the counteraffidavit, B-4 dated January 5, 1953 filed in interlocutory proceedings on behalf of P.W. 7, but there is no serious contradiction between the evidence of that witness in Ex. B-4 and the evidence of P.W. 7 in the present suit. The High Court was highly impressed with the evidence of P.W. 7 and we see no reason for taking a different view in regard to the credibility of this witness. P.W. 8 was also present at the meeting on July 6, 1952. His evidence corroborates that of respondent No. 1. He said that the son of the appellant was present at the meeting and the women shareholders were represented by some men on their behalf. It is true that P.W. 8 is the cousin brother of responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested on behalf of the appellant for discarding their evidence. It is also important to notice that 20 out of 30 shareholders executed sale deeds in favour of the first respondent after the date of the alleged oral agreement on July 6, 1952. The fact that the shareholders sold their shares at the identical price to the first respondent and the others sold at the same price to the appellant is only explicable on the hypothesis that the price was fixed by agreement between all the shareholders willing to sell i.e., all those other than the appellant. The last of the sale deeds executed in favour of the appellant or the first respondent are Exs. A-1 1 and A-12 dated February 28, 1953. There is evidence that prices were rising meanwhile and there are the circumstance that the vendors chose to sell at the same price renders it highly probable that there was an earlier binding agreement. It is also an important circumstance against the appellant, that none of the women shareholders has appeared in the witness box to rebut the evidence tendered on behalf of respondent No. 1. There was evidence given on behalf of respondent No. 1 that the women partners had authorised the men partners to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contact is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored." In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not approved and signed there is no concluded contract. In Rossier v. Miller 3 A.C. 1124. Lord Cairns said "If you find not an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties, and until that condition is fulfilled no contract is to arise then you cannot find a concluded contract." In Currimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 1's favour. On the basis of his evidence the High Court reached the conclusion that the appellant had notice of the prior oral agreement. We see no reason to differ from the finding of the High Court on this point. It was finally contended that the High Court ought not to have given any direction that as far as possible the site upon which the cinema building stands should be allotted to the share of respondent No. 1 if it is comprised within the 137 shares to which he was entitled. It was stated on behalf of the appellant that there was no equity in favour of respondent No. 1 as he was a lessee for 10 years and all the constructions were made with the full knowledge that he was a lessee for a limited period. In any case, it was said that the appellant should have been given permission under s. 3 of the Partition Act (Partition Act No. IV of 1893) when respondent No. 1 himself invoked the provisions of s. 2 of that Act. It was also argued that the High Court had no jurisdiction to modify any portion of the judgment dated March 25, 1960 by a subsequent order dated June 21, 1960 without an application for review. In our opinion, the contention put forward on behalf of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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