Holding

An agreement conditioned on ratification by co‑heirs is not a concluded contract and cannot be specifically enforced, so the appeal is dismissed.

Summary

The testator Claude Pinto executed a will appointing his son as executor to sell a property and distribute the proceeds, while also allowing the legatees to seek partition. The executor entered into a sale agreement with the tenant, M.V. Shankar Bhoi, which contained a clause that the sale was "subject to ratification by the co‑heirs". The executor never executed a sale deed, and the tenant sued for specific performance. The trial court granted the decree, but the Karnataka High Court set it aside, prompting an appeal to the Supreme Court. The Supreme Court held that a contract conditioned on ratification by parties who are not signatories is not a concluded contract and therefore cannot be specifically enforced. Consequently, the Court declined to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act and dismissed the appeal.

Issues considered

The executor's statutory right under the Indian Succession Act to sell the testator's property versus the legatees' right to partition.
Whether an agreement "subject to ratification by co‑heirs" constitutes a concluded contract enforceable for specific performance.
Whether specific performance can be granted under Section 20 of the Specific Relief Act, 1963 in the present circumstances.

Legislation cited

Indian Succession Act, 1925s. 211(1), s. 307(1)
Karnataka Rent Control Act, 1961s. 4, s. 5
Specific Relief Act, 1963s. 20

Subjects

specific performanceexecutorwillpartitionconditional contractratification clauseSpecific Relief ActIndian Succession Actproperty lawcontract law

Judgment

A M.V. SHANKAR BHAI AND ANR.
v.
CLAUDE PINTO (SINCE DECEASED) BY LRS. AND ORS.

FEBRUARY 14, 2003

B (S.B. SINHA AND DR. AR. LAKSHMANAN, JJ]
>

Specific Pe1for111ance Act, 1963-Section 20-0wner of property
executing Will and appointing son as executor to sell property and distribute
C proceeds between legatees-legatees also given option to partition the
property-Executor entering into sale agreement with tenant of the property--
Sale agreement. containing restrictive covenant that properties subject to
ratification by co-heirs-Executor not executing sale deed in terms of
agreement-Suit for specific performance of contract-Suit decreed-High
Court setting aside the order-On appeal held intention of parties was not
D that executor would alienate property as executor of his mother's Will-Also
as agreement containing restrictive covenant is not a concluded contract such
agreement not enforceable in court of law-Thus the question whether the
absolute right to dispose the property as an executor of Will or not is of no
significance-Hence, not a flt case to exercise discretion and order specific
E performance.

Owner of the property in question executed a Will and appointed
defendant No.I as the executor and directed him to sell the property for
the best price and distribute the proceeds between the legatees and the
legatees could also seek partition of the property. Owner expired and the
F executor obtained the probate. The appellant-tenant of the property in
question offered to purchase the property. Appellant who was a practicing
advocate drafted agreement for sale and defendant No I made corrections
in the same. He also advised defendant No I to obtain power of attorney
from other legatees. Parties entered into sale agreement which was subject
to ratification by the co-heirs. Defendant No I did not execute sale deed
G in terms of sale agreement. Appellants filed suit for specific performance
of contract. Trial Court decreed the suit. Aggrieved, defendant No I filed
an appeal. However, High Court set aside the judgment of the trial Court.
Hence the present appeal.

Appellants contended that the High Court erred in construing the
H 1212
M.V. SHANKAR BHAI i·. CLAUDE PINTO 1213
Will to the effect that the right of the legatees to ask for partition shall A
+ prevail over the right of the executor to sell the property; that under
Sections 211(1) and 307(1) of the Indian Succession Act, 1925, the executor
has an absolute right to dispose of the property of the testator and in that
view of matter the question of the legatees exercising their right of
partition in preference of the executor's right to sell the prnperty which B
would otherwise be in consonance of the aforementioned provisions of the
). Indian Succession Act, did not arise; that the expression used in the
agreement to sell "subject to ratification by the co-heirs" must be held to
have been inserted for the benefit of appellant and as such he was at liberty
to waive his right; and that the High Court erred in holding that it is not
fair and equitable to pass a decree for specific performance of contract. C
Respondents contended 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; that it is one
thing to say that in terms of Sections 211and307 of the Indian Succession
Act, a right of the executor of the Will to alienate the property of the D
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; that having
regard to the fact that in the agreement of sale 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 thus the suit for E
specific performance was not maintainable; and that the materials brought
on record by the parties would clearly demonstrate that the ;aid restriction
was inserted not for the benefit of the appellant at all.

Dismissing the appeal, the Court

HELD I. I. A bare perusal of the Will leaves no manner of doubt F
that although 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. G
11220-B-CJ

1.2. The submission that the appellant created a scare in the mind
of defendant No. I about the house being allotted to some other person by
the Rent Controller and that the appellant evidently had an upper hand
when negotiation for sale of the house between him and the original H
1214 SUPREME COURT REPORTS f2003l I S.C.R.

A defendant No.I took place is accepted. Further the agreement of sal~ in
question was, admittedly, drafted by the appellant and defendant No. 1
made corrections therein. Therefore the submission that the restrictive
covenant was inserted for the benefit of app.ellant cannot be accepted.
Furthermore, if the agreement was entered into by the defendant No 1
B 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 wanted to
convey the property also as a legatee and/or one of the heirs of her mother
apart from being the executor of the Will. Further in the aforesaid context
only the expression 'subject to ratification by co-heirs' must be interpreted.
11225-A, B, D, El
c 1.3. The draft sale deeds were drafted by the appellant and also the
appellant advised defendant No. I to obtain power of attorney from other
.legatees which were also prepared by him. The draft sale deed would
clearly demonstrate that the property in suit was to be executed by
legatees. Therefore the intention of the parties was not that defendant No.I
D would alienate the p·roperty in suit as executor of his mother's Will.
11225-F-HI

1.4. 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
E a clause must be held to be a condition precedent for coming in.to force of
a concluded contract. Therefore, the agreement for sale was not
enforceable in a court of law. Thus the question as to whether the original
defendant No.I had an absolute right to dispose of the property in question
in exercise of his power as an executor of the Will or not is of no
F significance. 11226-A-C; I228-AI

1.5. Having regard to the facts and circumstances of the case in
particular the subsequent events as well as the conduct of the appellant it
is not a fit case where a discretionary jurisdiction of this Court in terms
of Section 20 of the Specific Relief Act, I963 should be exercised. 11228-C)
G
Dr. Jiwan Lal and Ors. v. Brij Mohan Mehra and Anr., 11973) 2 SCR
230, distinguished.

P.H. Alphonso v. Mrs. Irene Dias and Ors., II9671 2 Mysore Law
Journal 465; Smt. Babuain Chandrakala Devi v. Smt. Pokhraj Kzter and Ors.,
H AIR 119631 Patna 2; Henry Earnest Meaney and Anr. v. E.C. Eyre Walker,
M.V. SHANKAR BHAI v. CLAUDE PINTO [S.B. SINHA. J.] 1215

AIR (34) 1947 All 332; Warehousing & Forwarding Company of East Africa A
Ltd. v. Jafferali & Sons ltd., 119641 Law Reports-Appeal Cases I; V.
Muthuswami (Dead) by lrs. ''· Angammal and Ors., [200213 SCC 316 and
Nirma/a Anandv. Advent Corpuration (PJ ltd. and Ors., 1200218SCC146,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2148 of 1998 8
From the Judgment and Order dated 4.4.1996 of the Karnataka High
Court in R.F.A. No. 296 of 1993.

K.N. Bhat, S.K. Gambhir, S.N. Bhat, D.P. Chaturvedi, K.M. Prakash,
K.V. Mohan, K.R. Nambiar, Awanish Sinha, Amit K. Sharma, for A.P. Medh C
and Vivek Gambhir, (NP) for the appearing parties.

The Judgment of the Court was delivered by

S.B. SINHA, J. Plaintiffs are in appeal before us. Plaintiff No. I was a
tenant in a part of the premises in question, which belonged to Montu Mary D
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. I was
appointed as the sole Executor. The relevant clauses of tho said Will are :

"After my death the Executor of this Will shall take possession
of my entire properties and manage them. He shall also obtain Court E
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 F
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. I 00 (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 G
and pay also Rs. I 00 (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 H
1216 SUPREME COllRT REPORTS [2003] I S.C.R.

A by the. help of two independent arbitrators and diyide 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."
B
Indisputably the said Will was probated. Defendant No. I. 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 practicing advocate and whose advices had been sought for as
C 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. I drafted the
agreement for sale and handed over the same to Defendant No. I who made
corrections therein. On or about 4.12.1979, an agreement of sale was entered
into between the parties, paragraph 1 whereof is in the following terms :
D
"That in 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
E hereinafter appearing."

(Emphasis supplied)

It appears from the records that the plaintiff advised Defendant No.1 to
obtain power of attorney from the other legatees so that all of them can
F execute the deeds of sale jointly. Two such draft sale deeds were prepared;
one to be executed in favour of Plaintiff No. I and another in favour of
Plaintiff No.2 who was the nominee of the Plaintiff No. I.

As Defendant No. I did not execute the deeds of sale purported to be
G 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. I contested the
said suit raising various pleas, whereupon the learned Trial Court, inter alia,
framed the following issues :

(I) Whether the defendant, as Executor of the Will of his mother, is
H not competent to sell the plaint schedule property without the
M.V. SHANKAR BHAI v. CLAUDE PINTO [S.B. SINHA. J.] 1217
consent or approval of the other legatees under Will ? A
O) Does 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 ter111s 1nentioned therein ?

(3) Does the first plaintiff prove that there was a concluded agreement
for sale between him and the defendant dated 4-12-1979" B
(4) Whether the second plaintiff can seek specific performance of the
agreement dated 4-12-1979 ?

Additional issues :

( 1) Whether defendants 2 to 7 would be put to great hardship if the C
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 ?
D
The learned Trial Court by its judgment and decree dated 11.3.1993
decreed the suit. Aggrieved by and dissatisfied therewith, Defendant No. l
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
Cow1 formulated the following points for its consideration :
E
( l) 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 F
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 ? G
(4) Whether on the facts and in the circumstances of the case, the
trial Court is justified in decreeing the suit of the plaintiffs for
specific perfonnance ?

All the questions were answered by the High Court against the appellants. H
1218 SUPREME COURT REPORTS [20031 I S.C.R.

A Mr. K.N. Bhat, learned Senior Counsel appearing on behalf of the appellants,
would submit that the High Court committed a serious error in construing the
Will to the effect that the right of tile legatees to ask for partition shall ~revail
over the right of the Executor to sell the prope11y. The learned counsel would
submit that having regard to the provisions contained in Sections 211 (I) and
307(1) of the Indian Succession Act 1925. the Executor has an absolute right
B to dispose of the property of the testator and in that view of matter the
question of the legatees exercising their right of partition in preference of the
Executor's right to sell the property which would otherwise be in consonance
of the aforementioned provisions of the Indian Succession Act, did not arise.

C Mr. Bhat would urge that the expression used in the said agreement to
sell dated 4.12.1979 "subject to ratification by the co-heirs to terms
hereinbefore appearing" must be held to have been inserted for the benefit of
Plaintiff No. I and as such he was at liberty to waive his right. In support of
the aforementioned contentions reliance was placed on P.H. Alphonso v.
Mrs. Irene Dias and Ors., ( 1967) 2 Mysore Law Journal 465] and Smt.
D Babuain Chandra/ca/a Devi v. Smt. Pokhraj Kuer and Ors., AIR (1963) Patna
2, Dr. Jiwan Lal and Ors. v.
Brij Mohan Mehra and Anr., [1973] 2 SCR 230.

It was pointed out that the Executor of the Will Claude Pinto, Original
Defendant No. 1, died on 15 .12.1988 and having regard to the fact ffiat the
E legatees had been brought on record as his legal representatives in re'spect
whereof the Trial Court held that the suit did not abate, the High Court
committed a manifest error in holding that it was obligatory on the pa11 of
the plaintiffs to approach the District Judge for appointment of another
Executor of the Will in view of Section 21 (I) of the Indian Succession Act.
As regards Point No.4, it was submitted that having regard to the fact that the
F Trial Court negatived the contention raised on behalf of the defendants that
Plaintiff No. I was not the lawyer of Defendant No. I and, thus, there was no
question of any undue influence, having not been disturbed by the High
Court, it erred in holding that it is not fair and equitable to pass a decree for
specific performance of contract.

G 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 tenns of
H Sections 211 and 307 of the Indian Succession Act. a right of the Executor
M.V. SHANKAR BHAI v. CLAUDE PINTO [S.B. SINHA . .I.] 1219

of the Will to alienate the property of the testator is absolute but in the instant A
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
J
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 vie\v of
the matter the suit for specific perfonnance was not maintainable.
..... B
Mr. Gambhir would further submit that the materials brought on records
by the parties would clearly demonstrate that the said restriction was inserted
not for the benefit of Plaintiff No. I at all. Mr. Gambhir argued that the
sequence of events would clearly demonstrate that Plaintiff No. I took undue C
advantage of his position as a tenant as also a practicing advocate. The
learned counsel pointed out that in view of the provisions of the Karnataka
Rent Control Act, as it then prevailed, the Rent Controller had the absolute
jurisdiction to induct a tenant as and when a tenanted premise is vacated. It
was pointed out that Plaintiff No. I's legal advice was sought for by the said
defendant as to how to prevent such action on the part of the Rent Controller. D
At that time he was advised that in the event an agreement of sale is executed,
such a contingency can be avoided.

The learned counsel, however, conceded that the High Court may not
be correct in its view that although the legatees had already been brought on E
record on the death of the Original Defendant, it was obligatory on the part
of the plaintiffs to approach the District Judge with a prayer to appoint
another Executor in his place.

The learned counsel supported the judgment of the High Court as regards
its refusal to exercise of discretionary power in terms of Sections 20(2)(b) of F
the Specific Relief Act, 1963. Our attention has been drawn to the fact that
in the suit for specific performance of the contract, the other respondents
herein filed an ap.plication for getting impleaded as parties but the same was
rejected. A revision application filed there-against by the respondents was
also dismissed by the High Court observing that they were free to file a suit G
for partition. Relying on or on the basis of such observation of the High
Court, a suit for partition was filed to the knowledge of the plaintiffs. The
same was decreed. The house in question was allotted in favour of the
Respondents according to the respective shares. Respondent No.6 also took
certain steps against Plaintiff No. I as a tenant wherein also Plaintiff No. I did
not examine himself or questioned the validity of the decree passed in the H
1220 SUPREME COURT REPORTS f2003] I S.C.R.

A partition suit. The learned counsel pointed out that the plaintiffs did not pay
a single penny to the respondents and furthermore keeping in view the
"""'!'
subsequent events, namely. the decree passed in the partition suit, it may not
be equitable to grant a decree for specific performance of the agreement of
sale at this distant point of time.

B 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. I 979 would amount to a conditional agreement or a concluded -I
contract and/or whether the same was for the benefit of Plaintiff No. I.

C A bare perusal of the Will dated 25.4.1972 leaves no manner of do~bt
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. /

D
It is in the aforementioned backdrop, the conduct of the parties may be
noticed. Plaintiff No. I 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
E correspondences. The Original Defendant took the legal advice of Plaintiff
No. I as regards the effect of the said Will in 1974. Plaintiff No. I 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
correspondences passed between the parties would clearly show that they
were in good terms.
F
A question also arose as to whether any lease in favour of Plaintiff ...,
No. I without filing any declaration under the Urban Land (Ceiling and
Regulation) Act would be valid or not or whether they could take action for
regularisation thereof. The question as regards sale of property appears to
have cropped up in February 1977 whence the Original Defendant No. I by
G a letter dated 11.2.1977 addressed to Plaintiff No. I informed him that he had
obtained a probate and he is required to take action in terms thereof. It was
in that connection a query was made "if we (presumably the legatees) wanted
to dispose of the property, would it be necessary to take permission from the >\
court or the land ceiling authority". Plaintiff No. I by his letter dated 19.3.1977
H gave his advices in details on his proposal to dispose of the property saying:
M.V. SHANKAR BHAI v. CLAUDE PINTO [S.B. SINHA.!.] 1221

"lf you want to dispose of the property. permission of the court is A
unnecessary. But the permission of competent authority under the
Land Ceiling Act is necessary. Only atier you fix up a buyer, necessary
formalities can be gone through. There are no provisions for obtaining
a blanket permission to sell. The formalities are quire laborious and
in some. lf you have any particular buyer in mind and only after such
and you agree, then only you can think of obtaining the permission B
of the competent authority. In passing I may mention that if you have
any idea to sell the property or any portion thereof, please let me
place my first offer. Probably even Mr. Venketesh might be interested
to buy though I have not specifically asked him ...... "

The Original Defendant No. l thereafter visited Mangalore and discussed
c
about the pros and cons of selling the property with the plaintiff, which
would appear from his letter dated 20.3.1978. He again wanted Plaintiff
No. I's advice on certain matters. Plaintiff No. I pointed out several
disadvantages in respect of the property in question which may be proved to
be impediments in the matter of getting good price. He in his letter dated D
9.4.1978 contended :

"It is difficult to give current market price in terms of square metres
because land in Mangalore is even now sold only in terms of cents.
Your plot is mulageni plot. It is situated by the side ofa lane in which
no heavy vehicle can pass through. There are two disadvantages which E
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 F
applicant. No new building can be easily constructed on your plots
without doing some underground work in the concerned offices. On
the main road side, near Karnath Nursing Home, Mr. Prabhu who
owns lands, has recently sold them at the rate of about Rs. 3 to 3Y,
thousand per cent of land. Your lands may fetch about Rs. 2 to 2Y,
thousand and the buildings being of mud will not fetch any value. G
Again, a third party purchaser will consider the question whether he
gets actual possession or not."

Yet again in the said letter, Plaintiff No. I made an offer to purchase the
property on his own behalf as well as on behalf of Mr. Yenketesh.
H
1222 SUPREME COURT REPORTS r2003] 1 S.C.R.

A The Original Defendant No. I was merely nurturing the idea of selling
the property. Various correspondences passed between the parties a_nd
whenever any occasion arose, PlaJntiff No. I renewed his offer. In the
meantime. Mr. Yenketesh was tra:1sferred to Bangalore and although he
retained the possession of the tenanted premises for some time. but later .on
vacated the same. In terms of the provisions of the Karnataka Rent Control
B Act, in the event a tenanted premises falls vacant, the Rent Controller may
allow the same to other person. Sections 4 and 5 of the Karnataka Rent
Control Act. 1961 read thus : -I

"4. Intimation of vacancy by landlords.- (1) Every landlord shali,
within fifteen days after the building becomes vacant by his ceasing
c to occupy it or by the termination of a tenancy or by the eviction of
the tenant or by the release of the building from requisition, or
otherwise, give intimation in the prescribed form by registered post
to the Controller.

(2) Except as provided in this Part, no person shall let, occupy or
D otherwise use any building which becomes vacant without the landlord
giving intimation under sub-section (I) and for a period of fift~en
days from the date on which the intimation is received by the Controller
or within a period of one week after the tennination of the proceedings
under Section 8, if any, whichever is later :
E Provided that this sub-section shall not apply to a building in
respect of which the landlord has obtained an order for possession on
any of the grounds specified in clause (h) ·of the proviso to sub-
section (I) of Section 21 or to any building which has been released
from requisition for the use and occupation of the landlord himself:
F Provided further that ifthe building is not occupied in accordance
with an order for possession under clause (h) of the proviso to sub-
section (I) of Section 21, or if the building is not occupied by the
landlord after its release from requisition, within a period of two
months from the date of such order or release, as the case may be,
G the landlord shall immediately after the said period of two months or
within such further time as the Controller may allow, give intimation
to the Controller in accordance with the provisions of this sub-section
and for this purpose the building shall be deemed to have become
vacant on the date of the expiry of the said period of two months.

H (3) Any landlord who contravenes the provisions of sub-section
M.V. SHANKAR BHAI "·CLAUDE PINTO fS.B. SINHA. J.] 1223

(1) or (2) shall, on conviction, be punished with fine which may A
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 B
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 C
(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.
D
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 (l) of Section 4 or not, be given to the landlord for
his use and occupation or on lease to such public authority or other
persons as he may think fit: E
Provided that where such building is a residential building no
such order shall be made in favour of a person not being the landlord,
who or any member of whose family owns a residential building in
the same city or town or village in which the vacant building is
situated. F,
Explanation. - A building may be directed to be leased under this
section notwithstanding that it is subject to an agreement of lease or
has been let or occupied in contravention of sub-section (2) of Section
4.
G
(2) Any landlord, who contravenes an order made under sub-section
(I) shall, on conviction, be punished with simple imprisonment for a
term which may extend to three months or with fine or with both."

By a letter dated 30.10.1979 (Exhibit D/40) Plaintiff No. I intimated to
the Defendant No. I about the visit of the Rent Controller and the latter H
1224 SUPREME COURT REPORTS f2003] I S.C.R.

A having made queries as regards the status of the tenanted premises. Plaintiff
No. I stated that he had tried to see that the Inspector does not file his report.
He also intimated that he had spent Rs. 50 for keeping the matter in abeyance.

By a letter dated 13.11.1979 (Exhibit 0/4 I). Plaintiff No. I informed
the Defendant No. I that somebody had complained to the Rent Controller
B and as such he would have to submit a report. Yet again by a letter dated
19.11.1979 (Exhibit D-42), he advised the Original Defendant that in the
event he received notice, it will be appropriate that he appears through a ~
lawyer and contest the proceedings. He stated :

" ............. Once the lawyer appears he can ask for time for filing
c objection etc. and the allotment can be stalled. If decision goes against
us, we can appeal to D.C. and then to High Court.

In the meantime, our High Cou11 has ruled that if owner requires -~
release of building for sale, the Rent Controller should ordinarily
accept it."
-D
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 .. The
E Plaintiff No. I in his deposition stated :

"Through Ex.D.42 I have not given advice to the defendant as
suggested by you that the Mysore High Court ruled that if the
agreement is executed 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
F
be allotted by the Rent Controller"

He further stated :

" ........ .Jn 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
G 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. I 0 he came from
.H Bombay to Mangalore"
M.V SHANKAR BHAI v CLAUDE PINTO [S.B. SINHA. J.] 1225

It is evident that negotiation for selling the property in question started A
in the aforementioned backdrop of events and ultimately the agreement of
sale \Vas executed.

Mr. Gan1bhir. there!Ore. in our opinion is right in contending that PlaintitT
No.1 created a scare in the mind of Defendant No. I about the house being
allotted to some other person by the Rent Controller. PlaintiffNo.1 evidently B
had an upper hand \Vhen negotiation for sale of the house bet\veen hi1n and
the Original Defendant No.1 took place.

The agreement of sale in question was, admittedly, drafted by Plaintiff
No. l. He in his deposition stated :
c
"Defendant is a Law Graduate and an officer in Tata Company.
Defendant read the contents of Ex.P.12, and made corrections therein.
The corrections made by the defendant in Ex.P.12 are at Ex.P.12(a),
P.12(b), P.12(c) and P.12(d). Defendant himself wrote the description
of the suit prope1ty in the schedule to the agreement at Ex.P.12(e). D
After correction made by the defendant at Ex.P.12(b), I carried out
the same by correcting in Ex.P.12 in the language of lawyer."

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 E
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 F
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. I. It appears from the letter dated 21.1.1980
that Plaintiff No. l asked the Defendant No. I to get power(s) of attorney
executed by his brothers and sister in his favour, the drafts whereof were also G
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 aurhorised by Nos. I and 2 as per
power of attorney (dated blank) and by Claude Pinto. H
1226 SUPREME COURT REPORTS f2003] I S.C.R.

A It, therefore, cannot be said that the intention of the parties was that the
Defendant No. I would alienate the prope11y 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
B 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 word 'subject to' has been defined in Black's Law Dictionary,
C 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 ~greement for sale, therefore, was not enforceable in a court
D oT law.

In Hemy Earnest Meaney and Anr v. £.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
E
the plaintiff alleged that the letter of Mr. Meaney dated 29th August
I94 I, was an offer and the telegram dated 3 I st August I941, 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 I 941, was nothing more than an invitation
F to offer and the plaintiffs telegram dated 3 I st August I941, must be
taken as a definite offer of purchase made on his behalf. We have
already said that the letter of I st September I 941 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
G 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 any correspondence after I st 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
H when Mr. Meaney came to Dehra Dun. It is nobody's case that there
M.V. SHANKAR BHAI v. CLAUDE PINTO fS.B. SINHA. .I.] 1227

was an oral contract entered into between the 2nd and 4th October. A
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.''

In Warehousing & Forwarding Company of East Africa ltd. v. Jajfera/i B
& Sons. ltd., ( 1964) Law Reports - Appeal Cases I], 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 v. Sweet that ratification by the principal can operate c
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, D
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 hold that a concluded contract had been
made in these circumstances."
E
In Dr. Jiwan Lat's case (supra) whereupon reliance has been placed by
Mr. Bhatt, Clause (6) of the agreement was as 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 F
of the sale-deed the vendor shall refund to the purchaser the sum of
Rs.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
G
materials on record it was held that the clause 6 aforementioned was for the
benefit of the purchaser and in that situation, this Cou11 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( I) of the Indian Succession Act, the Executor of a Will has an absolute H
1228 SUPREME COURT REPORTS f2003] I S.C.R.

A 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 mstant 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
B 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. I 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.
c 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. I,
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 Ors.,
D [2002] 3 SCC 316 and Nirmala Anand v. Advent Corporation (P) Ltd and
Ors., [2002] 8 SCC 146].

The appeal being devoid of any merit is, therefore, dismissed but without
any order as to costs.

N.i. Appeal dismissed.