Case: M.V. Shankar Bhat &amp; Another Vs. Claude Pinto Since (Deceased) by Lrs. &amp; Others

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, 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?. 33. The said agreement for sale, therefore, was not enforceable in a court of law. 34. In Henry Earnest Meaney and another v. E.C. Eyre Walker , AIR 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 the acceptance be 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 d efinite offer of purchase made on his behalf. We have already said that the letter of 1st September 1941 was not an absolute and unqualified acceptance of the offer as required by S.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 a ny correspondence after 1st September 1941, for his argument that there was a completed contract between the parties. It was not till about 2nd October 1941, that the parties met when Mr. Meaney came to Dehra Dun. 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 Company of East Africa Ltd. v. Jafferali and Sons Ltd., 1964 Law Reports - Appeal Cases 1, 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 vs. Sweet 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 held that a concluded contract had been made in these circumstances.? 36. In Dr. Jiwan Lal?s case, 1973 (2) SCR 230 whereupon reliance has been placed by Mr. Bhatt, Clause (6) of the agreement was an under: ?6. In the event of the above said 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 order 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 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. 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 Smt. Babuain Chandrakala Devi?s case , AIR 1963 Pat. 2 and P.H. Alphonso?s case, 1967 (2) Mys L.J465 . 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 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. 40. In any event having regard to the facts and circumstances of this case and in particular the subsequent events as well the conduct of 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. v. Angammal and others , 2002 (3) SCC 316 and Nirmala Anand v. Advent Corporation (P) Ltd. and others , 2002 (4) CTC 624 : 2002 (8) SCC 146.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.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. Plaintiff No.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 in good terms.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.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 for the house between him and the Original Defendant No.1 took place.It would, therefore, not be correct to contend that the restrictive covenant was inserted for the benefit of Plaintiff No.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 her mother, Mrs. Minto Mary Pinto apart from being the Executor of the Will.In the aforesaid context only the expression ‘subject to ratification by the co-heirs? must be interpreted.The draft sale deeds which were marked as Exhibits D-15 and D-23 were also drafted by Plaintiff No.1. It appears from the letter dated 21.1.1980 that Plaintiff No.1 asked the Defendant No.1 to get powers 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 Stanely 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.It therefore, cannot be said that the intention of the parties was that the Defendant No.1 would alienate the property in suit as Executor of his mother?s Will.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.The said agreement for sale, therefore, was not enforceable in a court of law.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 , AIR 1963 Pat. 2 and P.H. Alphonso?s case, 1967 (2) Mys L.J465 .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.In any event having regard to the facts and circumstances of this case and in particular the subsequent events as well the conduct of 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. v. Angammal and others , 2002 (3) SCC 316  and Nirmala Anand v. Advent Corporation (P) Ltd. and others , 2002 (4) CTC 624 : 2002 (8) SCC 146.