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

1. 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 Willmy 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 the 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 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 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 saidif 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 pr operty shares?.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 practising 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, paragraphs 1 whereof is in the followingin 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 .? (ItalicsIt appears from the records that the plaintiffs 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.As Defendant No.1 did not execute the deeds of the 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 followingnt, 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 underDoes the first plaintiff prove that the document dated 4.12.1979 is valid and binding on the defendant and that he is entitled to enforce the terms mentionedDoes the first plaintiff prove that there was a concluded agreement for sale between him and the defendant datedWhether the second plaintiff can seek specific performance of the agreement dated) Whether defendants 2 to 7 would be put to great hardship if the agreement of sale is to beWhether the plaintiff took unfair advantage in obtaining the suit agreement of sale as contended in the written statement by theThe 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 itsWhether 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 theWhether 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 concludedWhether 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 firstWhether on the facts and in the circumstances of the case, the trial Court is justified in decreeing the suit for the plaintiffs for specificAll the questions were answered by the High Court against the

Reasoning:
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.