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TMI Blog2003 (2) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... re to my son Victor L. Pinto and obtain receipts 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 ₹ 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 ₹ 600/-(Six hundred) to her son Sunil Rodrigurs and pay also ₹ 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. Indisputably the said Will was probated. Defendant No.1, however, as Executor or otherwise did not se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip 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 ? The learned Trial Court by its judgment and decree dated 11.3.1993 decreed the suit. Aggrieved by and dissatisfied therewith, Defendant No.1 preferred an appeal. The High Court of Karnataka by its judgment dated 4.4.1996 passed in F.R.A. 286 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 24-5-1972 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 O.S. No. 26/1981 was rightly proceeded within law bringing the defendants 2 to 7 as legal representatives of the deceased sole Executor, the first defendant ? (4) Whether on the facts and in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in holding that it is not fair and equitable to pass a decree for specific performance of contract. 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. Mr. Gambhir would further submit that the materials brought on records by the parties would clearly demonstrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this distant point of time. 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 No.1. 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. It is in the aforementioned backdrop, the conduct of the parties may be noticed. Plaintiff No.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 correspondences. The Original Defendant took the legal advice of Plaintiff No.1 as regards the effect of the said Will in 1974. Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sec.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 work in the concerned offices. On the main road side, near Kamath Nursing Home, Mr. Prabhu who owns lands, has recently sold them at the rate of about ₹ 3 to 3 thousand per cent of land. Your lands may fetch about ₹ 2 to 2 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. Yet again in the said letter, Plaintiff No.1 made an offer to purchase the property on his own behalf as well as on behalf of Mr. Venketesh. The Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andlord 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted in respect of the vacant tenanted house it cannot be allotted to anybody. It is not true to suggest that I got executed Ex.P.10 mentioning the defendant that the vacant house of him cannot be allotted by the Rent Controller He further stated : In my letter at Ex.D.41, I assured him that I would protect his interest before the Rent Controller. But in Ex.D.41, I have asked him to send a vakalath form i.e., duly signed by him to me. In Ex.D.40 I informed him to act quickly and preferably to visit Mangalore and save the house from Rent Controller. After Ex.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 Ex.P.10 he came from Bombay to Mangalore 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. Mr. Gambhir, therefore, in our opinion is right in contending that Plaintiff No.1 created a scare in the mind of Defendant No.1 about the house being allotted to some other person by the Rent Controller. Plaintiff No.1 evidently had an upper hand when negotiation for sale of the hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o' has been defined in Black's Law Dictionary, Fifth Edition, at page 1278, inter alia, as : subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for . In Collins' English the words 'subject to' has been stated to mean as : under the condition that : we accept, subject to her agreement . The said agreement for sale, therefore, was not enforceable in a court of law. In Henry Earnest Meaney and another vs. E.C. Eyre Walker [AIR (34) 1947 All.332], the law is stated in the following terms : 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 29th August 1941, was an offer and the telegram dated 31st August 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 29th August 1941, was nothing more than an invitation to offer and the plaintiff's telegram dated 31st August 1941, must be taken as a definite offer of purchase made on his behalf. We have already said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dor shall refund to the purchaser the sum of ₹ 10,000/- (Rupees ten thousand only) received by the vendor as earnest money plus interest at the rate of 6 per cent per annum. Having regard to the nature of the transaction and keeping in view the materials on record it was held that the 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. 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). 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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