Karnataka High Court
Claude Pinto And Others vs M.V. Shankar Bhat And Another on 4 April, 1996
Equivalent citations: AIR1996KANT366, ILR1996KAR2229, 1996(3)KARLJ342, AIR 1996 KARNATAKA 366, (1996) ILR (KANT) 2229, (1996) 2 CIVILCOURTC 609, (1996) 3 KANT LJ 342, (1997) 1 CIVLJ 427
JUDGMENT
1. The appellants herein, the defendants in the trial Court, have preferred this appeal against the judgment and decree dated 11-3-1993 passed by the Principal Civil Judge, Mangalore, in O.S. No. 26/1981 decreeing the suit of the respondents for specific performance of the agreement to sell dated 4-12-1979.
2. I have heard the Counsel for the appellants and the Counsel for the respondents fully and perused the records of the case.
3. The respondents have filed the suit for specific performance of the agreement dated 4-12-1979 executed by the deceased first appellant to sell the suit schedule property in favour of the respondents. Hereinafter the appellants and the respondents will be referred according to their ranks in the original suit on the file of the trial Court.
4. The plaintiffs filed the suit O. S. No. 26/1981 against the sole defendant Sri Claude Pinto for specific performance of the agreement to sell dated 4-12-1979 executed by him to sell the suit schedule property in favour of the first plaintiff. After recording evidence of both sides, the sole defendant Sri Claude Pinto died on 15-12-1988. On his death, his widow, the second defendant, his daughters, third and fourth defendants, his sister, sixth defendant, his brother fifth and seventh defendants were brought on record on 11-1-1989 as the legal representative of deceased Sri Claude Pinto who is referred to as the first defendant hereinafter.
5. The plaintiffs filed the suit against the first defendant on the following averments :
That the suit schedule property was the property of one Smt. Monthu Mary Pinto who had executed the last will and testament dated 25-4-1972 bequeathing the property for her three sons and a daughter appointing the first defendant as Executor. After the death of Smt. Monthu Mary Pinto, the first defendant obtained probate of the said Will in P & SC No. 6-1976 on the file of the District Judge, Dakshina Kannada, Mangalore. The first plaintiff has been the tenant in respect of item No. 1 of the plaint schedule property and other item was in the possession of another tenant by name Sri T. R. Venkatesh. After obtaining the probate of the Will, the first defendant wanted to sell the suit schedule property. The first plaintiff and the other tenant one Sri T. R. Venkatesh expressed their desire to purchase the same. The tenant, Sri T. R. Venkatesh vacated in the year 1979 as he was transferred to Bangalore. The first defendant offered to sell the suit schedule property to the first plaintiff and an agree-
ment to sell was executed 4-12-1979 agreeing to sell the suit schedule property measuring 33 cents for Rs. 1,23,750/- in favour of the first plaintiff. The first plaintiff agreed to sell 15 cents to the second plaintiff for Rs. 60,000/-and executed a deed of assignment dated 18-1-1980 in favour of the second plaintiff. On demand to execute the sale deed the first defendant evaded and hence the plaintiffs were compelled to file the against the first defendant for specific performance of the agreement of sale dated 4-12-1979 entered into between the first plaintiff and the first defendant.
6. The first defendant filed the written statement that the alleged agreement to sell was obtained by the first plaintiff by playing a confidence trick on him taking undue advantage of his position as the legal advisor of the first defendant and that the second plaintiff was totally a stranger and was not a party to the agreement. He further averred that in the Will, the testatrix had made arrangement in respect of the suit schedule property and that the Executor should divide the property into four portions in the manner mentioned therein, if the beneficiaries under the Will desired to have their shares in the immovable property bequeathed by the tes-tarix. Hence, he contended that the first defendant had no special powers under the Will to dispose of the property as contended by the plaintiffs without the consent or approval of other legatees and that he was not fully representing the estate for all purposes as alleged in the plaint. Further, he averred that eversince the death of the mother of the first defendant, the first plaintiff had an eye on the suit schedule property and was not letting any occasion to slip from his hands to win the confidence of the first defendant and persuaded to sell the property to him for a low price. Inter alia, the first plaintiff advised that according to a decision of the High Court of Karnataka that in case a sale agreement was entered into, it would become a fait accompli and then the Rent Controller would not have jurisdiction to allot the house and that the said agreement was only a colourable document made with the sole intention of frustrating the Rent Controller's proceedings and that it was not intended to be acted upon. Further, he contended that the said agreement was not one entered into by a free mind as a genuine document and also was not executed in pursuance of the directions in the Will and that the other three legatees had undivided share in the property and that there was no legal necessity to sell the property and that the other legatees had not given their consent. Hence, he prayed for the dismissal of the suit.
7. Defendants 2 to 7 were brought on record on the death of the first defendant on 15-12-1988 by an application made by the plaintiffs on 11-1-1989 which was allowed without notice to them. The second defendant has filed her written statement contending that the supplemental defendants 2 to 7 are not the legal representatives of the deceased first defendant, who was sued in his capacity as the executor of the Will of Mrs. Monthu Mary and that the agreement entered into by the executor with the first plaintiff does not survive on his death and therefore it is unenforceable and that the alleged agreement has not been accepted in an unqualified manner as ratification of the alleged has yet to be obtained from the other legatees as such it was not a completely executed agreement and that the said agreement is not binding one as the same was procured by fraud, undue influence and misrepresentation proceeding from the first plaintiff inasmuch as a scare was created in the mind of the deceased first defendant by the first plaintiff and that the said agreement is invalid and unenforceable and that the alleged agreement was beyond the authority of the deceased first defendant as executor and that she and her children would be put to great hardship if the suit is decreed. The third and fourth defendants adopted the written statement of [he second defendant.
8. The sixth defendant has filed her written statement mainly contending that the defendants 5, 6 and 7 are not the legal heirs or legal representatives of the deceased first defendant. Hence, there is no cause of action against the fifth, sixth and seventh defendants and that neither the defendants 5 to 7 nor the defendants 2 to 4 have received any notice of the application made to bring them on record as legal representative of the deceased first defendant and contended interalia that early in the year 1982, the defendants 5 to 7 came down to Mangalore after informing the first defendant that he too should come over to Mangalore for partitioning the immovable property bequeathed under the Will dated 25-4-1972 and when they learnt about the pending suit filed by the first plaintiff, they filed an application I.A. No. III under Order. I, Rule 10(2) of the Code of Civil Procedure, to implead them as additional defendants in the suit which was rejected and the matter was taken to the High Court of Karanataka in Civil Revision Petitioner No. 3836/1982 which was dismissed by an order dated 3-2-1987 stating that if they so desire the defendants 5 to 7 might file a suit for partition and possession of their shares. Accordingly, the sixth defendant filed a suit for partition in O.S. No. 264/1987 against the executor, the first defendant and other legatees and after the death of the first defendant, a final decree was passed on 28-9-1989 and the defendants-2 to 7 were put in possession of their respective shares in the immovable property bequeathed in the Will dated 25-4-1972. The sixth defendant further averred that they have neither ratified nor they are going to ratify the terms and conditions contained in the agreement dated 4-12-1979 as required by clause (1) thereof and that they will be put to great hardship if a decree for specific performance is passed. Hence, they prayed for the dismissal of the suit.
9. Based on the pleadings, the Trial Court framed 12 issues and 7 additional issues as follows :
(1) Does the first plaintiff prove that the defendant had absolute authority to enter into the agreement of sale alleged in the plaint as per terms of the Will dated 25-4-1972?
(2) Whether the defendant, as executor of the Will of the mother, is not competent to sell the plaint schedule property without the consent or approval of the other legatees under Will?
(3) Does the first plaint prove that the document dated 4-12-1979 is valid and binding on the defendant and that he is entitled to enforce the terms mentioned therein ?
(4) Whether the agreement of sale dated 4-12-1979 is vitiated by fraud and undue influence as contended by the defendant ?
(5) Does the first plaintiff prove that there was a concluded agreement for sale between him and the defendant dated 4-12-1979?
(6) Does the first plaintiff prove that he is entitled to get the agreement of sale specifically enforced ?
(7) Whether the agreement dated 4-12-1979 is not specifically enforceable for the reasons stated in paras 13 and 15 of the written statement ?
(8) Whether the first plaintiff was ready and willing to perform his part of the contract as per the agreement of sale dated 4-12-1979 ?
(9) Whether the first plaintiff prove that in pursuance of the sale agreement dated 4-12-1979, he is entitled to compel the defendant to sell item No. II property to the second plaintiff?
(10) Whether the second plaintiff, can seek specific performance of the agreement dated 4-12-1979?
(11) Whether the suit is bad for nonjoinder of all the legatees under the Will ?
(12) To what reliefs ?
Additional issues :
(1) Whether the alleged agreement entered into by the deceased defendant with the plaintiff does not survive and, therefore, it is not enforceable?
(2) Whether the supplemental defendants are not the L.Rs. of the deceased defendant for the reasons stated in para 2 of their written siatement ?
(3) Whether the suit against defendants 5, 6 and 7 is barred by limitatioin ?
(4) Whether the suit has to be dismissed for non-joinder of necessary parties ?
(5) Whether defendants 2 to 7 would be put to great hardship if the agreement of sale is to be enforced ?
(6) Whether the plaintiff took unfair advantage in obtaining the suit agreement of saie as contended in the written statement by the defendants ?
(7) Do plaintiffs prove that the suit and decree in O.S. No. 264/1987 is collusive and is hit by rule of lis pendens and as such the plaintiffs are entitled to sale deed ?
10. The first plaintiff examined himself as P.W. 1 asnd examined one more witness as P.W. 2 and got marked exhibits P-1 to P-42 and the first defendant examined himself as D.W. 1 and got marked documents D-1 to D-49. The second plaintiff was not examined and no one of the defendants-2 to 7 who were brought on record on 11-1-1989 had given any evidence in support of the written statement filed by them. The learned Principal Civil Judge heard the arguments on both sides and held all the issues in favour of the plaintiffs and decreed the suit of the plaintiffs as prayed for.
11. In the light of the contentions urged on both sides, the following points arise for my 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 coheirs 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 of the case, the Trial Court is justified in decreeing the suit of the plaintiffs for specific performance ?
12. To consider the first point, it is necessary to go through the Will dated 25-4-1972. The said Will of Smt. Monthu Mary Pinto has been produced as Ex. P-2(a). In the said Will there is a recital to the effect that the immovable property bequeathed should be possessed and enjoyed by her 4 heirs (3 sons, defendants 1, 5 and 7, and one daughter, defendant No. 6) with equal right from generation to generation subject to the following terms and obligations and they shall inherit her property accordingly. Next, the Will provides that her son Sri Claude Pinto-(first defendant) is appointed as executor of the said Will and that the executor shall sell the said immovable property and distribute the net sale consideration among the legatees and to the living children of the executor and her daughter (6th defendant) in the manner stated therein. Further, after making the above provision, the testatrix has provided in her Will that if any of her said heirs desire to partition the said immovable property among themselves after her death, the executor shall consent to it and do so by the help of two independent arbitrators and divide the property into 4 equal lots as decided by the arbitrators and grant each such lot to each one of her said heirs who shall each inherit the respective properties absolutely with entire right.
13. After the death of Smt. Monthu Mary Pinto, the executor, the first defendant, started corresponding with the tenant of a portion of the suit schedule property, the first plaintiff, who is a practising lawyer, inter alia, seeking the advice for the sale of the immovable property bequeathed by the said testatrix to her 3 sons and a daughter. The correspondence between the first plaintiff and the executor, the first defendant, discloses that the executor intended to sell portions of the suit schedule property to the first plaintiff and another tenant one Sri T. Venkatesh. Though correspondence started in the year 1977, the sale did not materialise. The tenant Sri T. Venkatesh vacated the house under his occupation in or about the month of October 1979 when the first plaintiff tried to expedite the sale of the suit schedule property by the first defendant impressing upon the first defendant that the vacant house would be released to the landlord by the Rent Controller if an agreement to sell was executed in respect of the suit schedule property as disclosed by the letter dated 19-11-1979 --Exhibit D-42 following his earlier letters dated 31-10-1979 and 13-11-1979 -- Exhibits D-40 and D-41 respectively. Pursuant to the said letters of the first plaintiff, the first defendant rushed to Mangalore and executed the agreement to sell the suit schedule property to the extent of 33 cents on 4-12-1979 in favour of the first plaintiff, vide agreement Exhibit P-10. As is seen from the said agreement, for a consideration of Rs. 1,23,750/-, the first defendant for himself and executor has agreed to convey the suit schedule property subject to ratification by the other co-heirs to the terms appearing in the said agreement. It is also pertinent to note that in the Will dated 25-4-1992, the testatrix has provided that the executor shall sell the immovable property bequeathed therein and distribute the net sale proceeds as laid down therein. Next, it has been provided in the Will that if her heirs desire to partition the said property the executor shall consent to do so and divide the said properly equally among her heirs in the manner laid down therein.
14. Sri B. Bhavani Shankar Rao, the Counsel appearing for the appellants, has referred to the various relevant correspondence between the first plaintiff and the first defendant right from the year 1976 till the agreement to sell was executed on 4-12-1979 and submitted that there is no authentic document or any other reliable evidence to show that the other legatees, defendants 5 to 7 did not want their shares in the suit schedule property and that the same could be sold by the executor, except the writing of the first defendant that his sister who once wanted to have a share also did not claim the share. Though in the Will there is a direction to the executor in the earlier part of the Will to sell the immovable property and to distribute the sale proceeds in the manner stated therein, in the latter part of the Will there is a direction to the executor to partition the property among her heirs in the manner mentioned therein and put them in possession of the respective shares if any of the said heirs desires to partition the said property among themselves after her death. Hence, it was the duty of the first defendant to ascertain in writing the desire of the other legatees before he could take steps to sell the property entering into an agreement to sell. It was pointed out by the Counsel for the appellants that the first plaintiff, who is a practising lawyer, has given his opinion that if the body of legatees as a whole decide to sell the property there is no need for entering into any agreement among themselves, i.e., among the legatees, in his letter dated 9-4-1978 --Exhibit D-1 to the querry raised by the first defendant in his letter dated 30-3-1978 --Exhibit P-3. Obviously, this advice was given because of the direction to the executor contained in the Will to partition the immovable property, if any of the legatees so desire to have the share in the said property. Moreover, the first defendant who drafted the sale deeds Exhibits D-15 and D-23 had shown all legatees as vendors lest they should raise later any objection demanding partition as per the direction contained in the Will.
15. It was further argued for the appellants that the Will should be read as a whole to ascertain the intention of the testatrix as laid down in Section 82 of the Indian Succession Act. He relied on the decision of the Privy Council in the case of Enid _ Browne v. Florence Yoda Moody (AIR 1936 PC 285) wherein it was laid down that the golden rule in interpreting the Will would be to give effect to the testator's intention as ascertained from the language which he has used. It was further argued that if there are conflicting directions to the executor, the latter of the said two directions i.e., the direction appearing last among the two directions has to be given effect to as per the provisions of Section 88 of the Indian Succession Act. Sections 82 and 88 of the Indian Succession Act read as follows :
"82. Meaning of Clause to be collected from Entire Will -- The meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to to each other.
ILLUSTRATIONS :
(i) The testator gives to 'B' a specific fund or property at the death of 'A' and by a subsequent clause given the whole of his property to 'A'. The effect of the several clauses taken together is to vest the specific fund of property in 'A' for life, and after his decease in 'B', it appearing from the bequest to 'B' that the testator meant to use in a restricted sense the words in which he describes what he gives to 'A'.
(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to 'A' and in another part of his Will bequeaths Black Acre to 'B', the latter bequest is to be read as an exception ouut of the first as if he had said "I give Black Acre to 'B', and all the rest of my estate to 'A'."
XXX XXX XXX XXX
88. The last of two inconsistent clauses prevails -- Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
ILLUSTRATIONS :
(i) The testator by the first clause of his Will leaves his estate of Ramnagar "to A", and by the last clause of his Will leaves it "to B and to A", B will have it.
(ii) If a man at the commencement of his Will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail."
In the Will in question, the last direction of the executor is that if her heirs desire to partition the immovable property, the executor shall consent to it and divide the property amongst the legatees as mentioned therein. He relied on the decision in the case of Somasundara Mudaliar v. Ganga Bissen Soni (ILR Vol. (1904) 28 Mad 386) wherein it is laid down that where some terms of the Will apparently given an absolute interest but subsequent provisions show that only a life interest was intended to the given, effect will be given to the intention of the testator by cutting down the fact of former words and construing them conferring life estate only. Therefore, it was urged that while interpreting the Will dated 24-5-1972 -- Exhibit P-2 (a) the intention of the testatrix for effecting the partition of the property among her heirs if they so desire, expressed subsequent to the direction given to the executor to effect the sale of the immovable property and to distribute the net sale proceeds, should be given effect to. The executor should have taken up the matter with the legatees for effecting partition of the immovable property and only on their express confirmation that they did not want partition of the said property, the executor could have proceeded to take steps to sell the said property. The executor did not act according to the true intention of the testatrix. He could not have entered into the agreement to sell dated 4-12-1979 without ascertaining in writing that the other legatees had no desire to have their shares in the suit schedule property. Further, it was argued that defendants 5, 6 and 7, when they learnt about the suit, made an application I.A. No. III under Order I, Rule 10(2) to implead them as additional defendants in the suit which was rejected by an order dated 15-9-1982. The said order was challenged by defendants 5, 6 and 7 in C.R.P. No. 3836/ 1982 in this Court and this Court dismissed the said Civil Revision Petition by an order dated 3-2-1987 granting liberty to file a separate suit for partition and possession as mentioned in the Will. Accordingly, the 6th defendant filed a partition suit in O.S. No. 264/1987 against the execution first defendant and other legatees in which, after the death of the first defendant, a final decree was passed on 28-9-1989 and defendants 2 to 7 were put in possession of their respective shares in accordance with the intention of the testatrix expressed in her will dated 25-4-1972. Thus, it was argued for the appellants that on the facts of the case, the first defendant had no absolute powers to dispose of the suit schedule property ignoring the provision made in the Will for partition amongst the legatees, if they so desire to have shares.
16. On the other hand, Sri U. L. Nara-yana Rao, Senior Counsel appearing for the respondents, referred to the relevant correspondence between the first plaintiff and the first defendant which ultimately resulted in the execution of the agreement to sell dated 4-12-79 and argued that ever since the Will was probated, the first defendant had been expressing the intention to sell the suit schedule property not only by him but also by other legatees. My attention was drawn to Ex.P-4 and a letter dated 28-8-1978 of the first defendant addressed to the first plaintiff wherein it was written "we are intending to sell the property some time early next year" and argued that not only the executor but also the other legatees intended to sell the suit schedule property. The first plaintiff has not played any confidence trick as alleged and the agreement dated 4-12-1979 is a normal document executed after elaborate correspondence. Further, the senior counsel appearing for the respondents vehemently argued that the defendants being Christians, the provisions of S. 307(1) do apply as distinguished from the provisions of S. 307(2) of the Indian Succession Act and the executor has full powers to sell the immovable property which is vested in him under S. 211(1) as distinguished from the provisions of S. 211(2) of the said Act and to distribute the net sale proceeds as laid down in the said Will. Moreover, the assent of the executor or administrator is necessary to complete the legatee's title to his legacy as laid down in S. 332 of the Indian Succession Act. Hence, he argued that the executor had absolute powers to dispose of the suit schedule property. He relied on the decision of this Court in the case of Alphanso v. Irene Dias (1967 (2) Mys LJ 465) in support of his argument.
17. Sections 211(1), 211(2), 307(1) and 307(2) of the Indian Succession Act read as follows :
"211. Character and Property of Executor or Administrator as such --
(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Mohamedan, Buddhist, Sikh, Jain or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed'by survivorship to some other person.
307. Power of Executor or Administrator to Dispose of Property --
(1) Subject to the provisions of sub-sec. (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under S. 211, either wholly or in part, in such manner as he may think fit.
ILLUSTRATIONS :
(i) The deceased has made a specific bequest of part of his property. The executor not having assented to the bequest, sells the subject of it. The sale is valid.
(ii) The executor in the exercise of his discretion mortgages a part of the immovable estate of the deceased. The mortgage is valid.
(2) If the deceased was Hindu, Maho-medan, Buddhist, Sikh or Jains or an exempted person, the general power conferred by sub-sec. (1) shall be subject to the following restrictions and conditions, namely :
(i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the Will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,--
(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any irnmoveable property for the time being vested in him under S. 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person interested in the property."
The immovable property bequeathed vested in the sole executor, the first defendant, under Ss. 211(1) of the Act and under S. 307(1) of the Act, the executor has full powers to dispose of the property bequeathed by the testatrix. But, the intention of the testatrix for effecting partition of the property among her heirs if they so desire cannot be ignored totally on the facts of this case. The intention of the testatrix has to be given effect to applying the provisions of Ss. 82 and 88 of the Indian Succession Act quoted supra. Moreover, the first plaintiff has also understood that the other legatees also should agree for the sale of the suit schedule property which is evident from the opinion given by him in his letter dated 9-4-1978, Exhibit D-1, to the effect-- "if you, that is, the body of legatees as a whole decided to sell the property there is no need for entering into any agreement amongst yourselves". This advice was given in response to a query raised by the first defendant in his letter dated 30-3-1978, Exhibit P-3, asking the first plaintiff whether it is necessary for the beneficiaries of the property under the Will to make an agreement to sell the property and divide the proceeds in keeping with the terms of the Will. Further, in the instant case the agreement to sell dated 4-12-1979 drafted by the first plaintiff, a practising lawyer who is a party to the said agreement did agree, without any objection, to the correction made by the first defendant to clause-1 of the said agreement to include the words "subject to ratification by co-heirs". Thus, thereby the first plaintiff had also conceded that the other legatees viz., defendants-5, 6 and 7 had to ratify the action of the first defendant in having entered into the said agreement to sell without their having not given up the right to have partition of the said immovable property among themselves. Further, the sale deeds, Exhibits D-15 and D-23 have been drafted, admittedly by the first plaintiff showing the defendants-5 to 7 and the first defendant as vendors thereby conceding that without them, the plaintiff would not get good title to the said property.
Further it has been brought to my notice by the learned counsel for the appellants that the sixth appellant filed a suit for partition against the first defendant in O.S. No. 264/ 1987 oh the file of the Civil Judge, Mangalore, based on the orders dated 3-2-1987 passed by this Court in Civil Revision Petition No. 3836/1982 filed by the defendants-5, 6 and 7 against the plaintiff and first defendant and in the said suit a final decree dated 28-9-1989 was passed and defendants-2 to 7 have taken possession of their respective shares in the suit schedule property much earlier to the judgment and decree dated 11-3-1993 which were challenged in this appeal. Hence, applying the provisions of Ss. 82, 88, 211(1) and 307(1) of the Indian Succession Act to the facts of this case discussed above, in my opinion, the legatees had the right to claim partition and they having not given up the said right, the executor alone could not agree to convey the said suit schedule property to the first plaintiff. Hence, this point is answered in favour of the appellants and against the respondents.
18. Regarding the second point, the learned counsel Sri B. Bhavani Shankar Rao appearing for the appellants argued that the first plaintiff offered to purchase the suit schedule property for a consideration of Rs. 1,23,750/- and the first defendant did not accept the offer unconditionally. In other words, there was no absolute acceptance by the first defendant of the offer made by the first plaintiff and hence there was no concluded contract to sell the suit schedule property. When the first defendant entered into an agreement dated 4-12-1979 to sell the suit schedule property subject to the ratification by the co-heirs, he had acted as an agent of the defendants-5, 6 and 7. Pursuant to clause-1 of the said agreement, the first plaintiff had not only drafted the sale deed showing defendants-5 to 7 along with the first defendant as vendors -- vide Exhibit D-15 and D-23, but also drafted powers of attorney Exhibit D-12 and D-14 to be executed by defendants-5, 6 and 7 in favour of their agent the first defendant empowering him to execute the deeds of sale in favour of the plaintiffs. Hence, both the parties to the agreement dated 4-12-1979 understood that the terms contained in the said agreement required to be ratified by other legatees, viz., defendants-5, 6 and 7. Hence, it was argued by the learned counsel for the appellants that there is no concluded contract to sell the suit schedule property as the acceptance was not absolute. He relied upon the decision in the case of Henry Ernest Meaney v. E. C. Eyre Walker (AIR 1947 All 332). In the said case, the Division Bench of the Allahabad High Court held as follows :
"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 31 st 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 plaintiffs telegram dated 31st August 1941 must be taken as a definite 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 ....."
Further, the learned counsel for the appellants relied on the decision of the Privy Council in the case of Warehousing and Forwarding Company of East Africa Limited v. Jafferali and Sons Limited (1964 App Cas 1 : 1963 (3) All ER 571. In the said case, it was ruled that the agreement entered into subject to ratification would not be a concluded contract before the ratification. On the facts of this case, the first plaintiff having agreed to the correction made by the first defendant by inserting the words "subject to ratification by other co-heirs", conceded that the first defendant was executing the said agreement dated 4-12-1979 as agent of other co-heirs, defendants-5, 6 and 7. Hence, only on the ratification of the said agreement by defendants-5, 6 and 7, the said agreement would become a concluded contract.
19. Sri U. L. Narayana Rao, senior counsel appearing for the respondents, contended that under S. 307(1) of the Indian Succession Act, the executor has full powers to dispose of the property vested in him under S. 211(1) of the said Act. He pointed out that there is no evidence to show that the defendants-5 to 7 exercised their desire or opted for partition of the suit schedule property and in the absence of such evidence, the executor has every right to execute the agreement to sell and to sell the property in question. He relied on a decision in the case of P. H. Alphanso v. Irene Dias (1967 (2) Mys LJ 465). At page 468, in paragraph-2, it has been laid down as follows :
"The executor or the administrator has at law full power to dispose of the effects of the testator so as to give a perfect title to a person who takes them honestly and bona fide. So, a Will made by an executor cannot be impeached merely on the ground that a higher price would have been realised unless the price is so low as to invite the suspicion that the executor and the purchaser acted in collaboration to secure an unfair advantage to themselves....."
20. He further contended that the clause relating to ratification is for the exclusive benefit of the first plaintiff and does not create any liability against him and that he can waive it unilaterally and that the first defendant having full powers to dispose of the said property under S. 307(1) of the Indian Succession Act is bound to execute the deed of sale in respect of the suit schedule property. In support of his contention, he relied on a decision of the Supreme Court in the case of Dr. Jeevanlal v. Brij Mohan Mehra . The facts of the said case are that by an agreement to sell, Brij Mohan Mehra agreed to sell the suit schedule property to Dr. Jeevanlal and others for an agreed consideration. One of the clauses, clause No. 6 was as follows :
"6. In the event of the abovesaid premises which is the subject matter of sale not being vacated by the Income-tax authorities or is subsequently requisitioned by Government prior to the registration of the sale deed the vendor shall refund the sum of Rs. 10,000/-received by the vendor as earnest money plus interest at the rate of 6 per cent per annum."
Subsequently, the said premises was requisitioned by the Additional District Magistrate, Amritsar. Thereafter, Brij Mohan Mehra refused to execute the sale deed inspite of the request of the prospective vendors. So, plaintiff instituted the suit. Their case was that the premises were requisitioned on the manipulation of Brij Mohan Mehra, that clause-6 of the agreement was intended for the benefit of the prospective vendors, that the prospective vendors waived the condition in clause-6, that Brij Mohan Mehra could not put on end to the contract by relying on clause-6 and that the plaintiffs have always been ready and willing to perform their part of the obligation under the agreement. "Was the non-requisitioning of the premises a condition precedent to the performance of the seller's obligation to buy?" was one of the points that arose for determination in the Court in that case. The Supreme Court observed that clause-6 of the agreement does not expressly subject the seller's obligation to sell to the contingency of non-requisitioning of the premises. Nor does it say that the contract would come to an end on the requisitioning of the premises and held as follows :
"As already discussed, clause-6 was inserted in the agreement for the exclusive benefit of the vendees and not for the benefit of the vendees as well as the vendors. So, the vendees could waive the condition precedent specified in clause-6 ..... It would follow that where a stipulation is for the exclusive benefit of one contracting party and does not create liabilities against him, he can waive it unilaterally."
21. But, the facts of that case are quite different from the case before this Court. In this case, the first plaintiff has clearly accepted the condition without any demur that all the terms appearing below clause-1 of the agreement Exhibit P-10 shall be subject to ratification by the co-heirs, defendants-5 to 7. It is not any one clause but all the clauses appearing below clause-1 of the said agreement are subject to ratification by the coheirs. It is clear from clause-l of the agreement that the first defendant agreed with the first plaintiff to convey the property described in the schedule subject to ratification by the co-heirs to the terms contained in the said agreement. The co-heirs have not ratified the terms and conditions contained in the agreement. The defendants have made a categorical statement in the written statement of the 6th defendant adopted by defendants-5 and 7 that they did not and do not approve of the plaint agreement of sale dated 4-12-1979 and they did not and do not ratify the said agreement. There is no evidence to show that the co-heirs have ratified the terms and conditions of the agreement as per clause-1 of the said agreement. There could be no concluded contract until the co-heirs, defendants-5, 6 and 7 ratified the terms as agreed upon by clause-1 of the said agreement. He has relied upon the decision of the Allahabad High Court in Henry Earnest Meaney v. E. C. Eyre Walker and the decision of the Privy Council in Warehousing and Forwarding Company of East Africa Limited v. Jafferali and Sons Ltd., 1964 App Cas 1 : (1963 (3) All ER 571) quoted supra. Hence, the contention of the learned counsel for the appellants that the agreement dated 4-12-1979 is not a concluded contract in the absence of ratification by the co-heirs is well founded. Hence, I am constrained to hold that there is no concluded contract to sell the suit schedule property by the first defendant to the plaintiffs.
22. Regarding point No. 3, it is seen that the first defendant passed away on 15-12-1988. On 11-1-1989 by an application filed by the plaintiffs under O.22, R. 4 and R. 10 of the Code of Civil Procedure, the defendants-2 to 7 were sought to be brought on record as legal representatives of the deceased sole executor, the first defendant. The said application was allowed on the same day without notice of the said application to defendants-2 to 7 and the plaint was amended. Thereafter, suit summons were served on defendants-2 to 7. The defendants rightly contended that they arc not the legal representatives of the deceased first defendant, the sole executor appointed by the testatrix in her Will dated 25-4-1972, in the written statement filed by the sixth defendant adopted by the de-fendants-5 and 7. The defendants being Christians are governed by the Indian Succession Act. Hence, as laid down in S. 211(1) of the Indian Succession Act, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes and all the properly of the deceased person vests in him as such. Mulla's Code of Civil Procedure, 11th Edition by P. M. Bakshi at page 713, in the commentary on O.22, R.4 under the heading "Indian Succession Act and Legal Representatives", it has been stated that in the case of a person subject to the Indian Succession Act, his legal representatives within the meaning of S. 2(11) of the Code are his executor or administrator and not his heirs. Evidently, this is in accordance with the provisions of S. 213(1) of the Indian Succession Act. It was also so held in the case of Barnett Bros, Ltd. v. Fowle (AIR 1925 Rangoon 186). It is argued by the learned counsel for the appellants that if a sole executor or the last surviving executor who obtained probate dies without administering the testator's estate fully, a new representative has to be appointed for the purpose of administering the estate remaining unadministered, taking recourse to Ss. 258 and 259 _of the Indian Succession Act. Sections 258 and 259 of the Indian Succession Act read as follows :
"258. Grant of Effects Unadministered --If an executor to whom probate has been granted has died, leaving a part of the testator's estate unadministered, a new representative may be appointed for the purpose of administering such part of the estate.
259. Rules as to Grants of Effects Un-administered -- In granting letters of administration of an estate not fully administered, the Court shall be guided by the same rules as apply to original grants and shall grant letters of administration to those persons only to whom original grants might have been made."
Hence, the proper course for the plaintiffs was to approach the competent Court for appointment of a new representative in the place of the deceased sole executor, the first defendant. Section 258 is the same as S. 45 of the Probate and Administration Act -- V of 1881. This is found in the book "Paruck on the Indian Succession Act 1925", 8th Edition by Salil K. Roy Choudhury and H. K. Saharay at page 601. Either any of the defendants or the plaintiffs should have approached the competent Court for grant de bonis non. Biswas on encyclopaedic Law Dictionary has given the meaning of "de bonis non" at page 196 as follows :
"Where a sole or last surviving executor dies intestate without having fully administered, his administrator does not become the representative of the original testator and it is accordingly necessary to appoint an administrator to administer the property of the original testator left unadministered. This is a grant of administration-cum-testamento annexo de bonia non administratis for short called "de bonis non"."
23. It is further argued by the counsel for the appellants that defendants-2 to 7 cannot at all represent the estate of the deceased Monthu Mary Pinto after the death of the sole executor, the first defendant Claude Pinto. Only the new representative appointed in his place under Ss. 258 and 259 of the Indian Succession Act can alone be brought on record on the death of the sole executor. Hence, the suit has to be dismissed as no action has been taken in due time to get a new representative appointed in place of the deceased sole executor in accordance with Ss. 258 and 259 of the Indian Succession Act. The learned counsel for the appellants relied upon the decision in the case of Narasimmulu v. Gulam Hussain Sait (ILR 16 Mad 71). In that case facts were that one C. Lutchmi-narasu Chetty granted lease of certain premises to Gulam Hussain Sait and others and died leaving a Will appointing his wife Chenchammal the executrix and leaving the bulk of his property to his adopted son Narasimmulu. The executrix took out pro-bate of the Will and proceeded to deal with the property. But, before she had fully administered the property, she died intestate, Narasimmulu, the legatee under the Will who was an infant represented by next friend filed a suit against the tenants Gulam Hussain Sait and another for the recovery of arrears of rent. While they admitted the arrears of rent, they contended that the plaintiff did not represent the estate of the testator C. Lutchminarasu Chetty as by his Will, duly proved, the whole of his estate vested in the executrix Chenchammal. Hence, the suit of Narasimmulu was dismissed. On appeal, in the above case, it was held that letters of administration de bonis non should have been taken out and since the plaintiff did not represent the estate of the testator, he was not competent to maintain the suit.
24. The learned counsel Sri U. L. Nara-yana Rao argued for the respondents contending that the legal representatives as defined under S. 2(11) of the Code of Civil Procedure were brought on record under O. 22, R. 4 of the Code of Civil Procedure. He relied on a decision rendered by the High Court of Calcutta in the case of Kalidas Chandra v. Jugal Kishore Datta (ILR 1962 Cal 998) in which case it was held that where the defendant is sued as executor, on his death the estate of testator devolves on the residuary legatee and under O.22, R. 4(3) of the Code of Civil Procedure, the suit abates unless he is brought on record within the period of limitation. It is also further argued that the decree of the Trial Court shall not be reversed or substantially varied nor shall it can be remanded in appeal on account of any misjoinder of parties not affecting the merits of the case or the jurisdiction of the Court as, laid down in S. 99_of the Code of Civil Procedure. It was also contended that the defendants have submitted to the jurisdiction of the Court and filed their written statements and hence they are bound by the decree. It is further argued that there was no necessity to implead the appellants, who claim to be co-owners, at the initiation of the suit and the suit cannot be bad for non-joinder of parties relying upon the ruling of the Supreme Court in the case of Sri Ram Pasricha v. Jagannath . It is also argued that by bringing on record defendants-2 to 7 in the place of the deceased first defendant, they have been given full opportunity to defend the suit and hence they cannot have any grievance whatsoever relying on the ruling of the Supreme Court in the case of Vidyawati v. Manmohan, .
25. It is not in dispute that the defendants being Christians are governed by the Indian Succession Act. As laid down in S. 211(1) of the Indian Succession Act quoted supra, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes. It is clear from the commentary under the heading 'Indian Succession Act and Legal Representatives' on O.22, R. 4 of the Code of Civil Procedure appearing at page 713 of Mulla's Code of Civil Procedure, 11th Edition by P. M. Bakshi that the executor or the administrator is the legal representative within the meaning of S. 2(11) of the Code of Civil Procedure in the case of a deceased person subject to the Indian Succession Act and not his heirs. Hence, in the case of the death of the sole executor, the first defendant, steps should have been taken under Ss. 258 and 259 of the Indian Succession Act to get a new representative appointed. The expression used in S. 258, 'a new representative may be appointed' has to be construed as 'shall be appointed' as no other option or alternative is provided in the Indian Succession Act which applies to the defendants who are Christians. Hence, a suit would not have been proceeded with without the appointment of a new representative in the place of the deceased sole executor, the first defendant. Moreover, the defendants who were brought on record without notice of the application I.A. No. XI filed on 11-1-1989 had raised their objection that they were not the legal representatives of the deceased executor, the first defendant, in their written statement. Having been brought on record without notice of the application I.A. No. XI, they were compelled to participate in the proceedings in the trial Court. But, they have protested contending that they were not the legal representatives of the deceased executor, the first defendant. Provision has been made as to what is to be done when a sole execut.or to whom probate has been granted dies without fully administering the testator's estate in Ss. 258 and 259 of the Indian Succession Act. Hence, steps should have been taken to appoint a new representative in place of the deceased first defendant in accordance with the provisions of S. 258 of the Indian Succession Act. The suit against the heirs of the sole executor and the legatees who are the heirs of the testator is not maintainable in the case of a deceased executor subject to the Indian Succession Act. The decision in the case of Kalidas Chandra v. Jugal Kishore Datta, ILR (1962) Cal 998, is not applicable as the parties there were Hindus. The contentions raised relying upon the decisions in the case of Sri Ram Pasricha v. Jagannath and Vidyawathi v. Manmohan, , are untenable in view of the legal position stated above. Hence, the suit of the plaintiffs has to be dismissed as no new representative was appointed in the place of the deceased sole executor, the first defendant, in accordance with S. 258 of the Indian Succession Act as contended by the learned counsel for the appellants.
26. Regarding point No. 4, it has to be considered whether the facts of the case fall under any of the sub-sees. 2(2)(a) to (c) of S. 20 of the Specific Relief Act. This point need not be considered in great detail as the points-1, 2 and 3 have been held in favour of the appellants.
27. The learned counsel appearing for the appellants has pointed out that there is adequate evidence on record in this regard. The first defendant had written a letter dated 31-10-1979, Exhibit P-8, at a time when there was no dispute, wherein the first defendant had stated at paragraph-4 of the said letter that except for the negligible bank balance and insignificant amounts, there was nothing else but the immovables in Mangalore. In the cross-examination of the first plaintiff, P W 1, by the counsel for the first defendant, at paragraph-36 of his deposition, PW 1 has admitted that he owns 11 cents of land at Bijai, Mangalore, and his wife owns a site at Padll, Mangalore. Further, in the cross-examination by the counsel for the defendant-5 to 7 in paragraph-70 of his deposition, the first plaintiff, PW 1, has admitted that in his village, besides their family house, they hold other superstructure like cattle-shed and extra-shed and that they are holding 20 acres or so of lands in their village and that he is entitled for half share and the entire 20 acres are not fully cultivable land and further, at paragraph-71 of his deposition, he has admitted that he is owning a portion of one of the floors for his office premises in Ram Bhavan Building and that he is one among several others to get a lucrative practice as an advocate in Mangalore Bar and that he owns the vacant site at Bijai and his wife has got a site at Padil, Mangalore. It is further submitted by the learned counsel for the appellants that though the first plainliff, PW 1, has been closely acquainted with the first defendant and his family members, which is evident from the series of correspondence, the first plaintiff, PW 1, has deposed at para-graph-72 of his deposition that he does not know if the widow and children of the first defendant are financially unsound evading to admit the truth. It was further argued that in the plaint they have not narrated the facts truely. They have suppressed the fact of the intention of the testatrix to effect a partition of the immovable property bequeathed if the legatees so desire to have a partition. Further, they have suppressed the fact that the terms of the agreement dated 4-12-1979 are subject to ratification by the co-heirs, the defendants-5 to 7. Further, on the death of the first defendant on 15-12-1988, the plaintiffs made an application stated to be under O. 22, Rr. 4 and 10 of the Code of Civil Procedure on 11-1-1989 and without notice of the said application to defendants-2 to 7, the said application was allowed on the same day and they were brought on record and the plaint was amended bringing the defendants-2 to 7 on record on 11-1-1989 itself and the suit summons was sent to the defendants-2 to 7. Thus, the plaintiffs have not approached the Court with clean hands and hence they are not entitled to a decree of specific performance which is an equitable relief to be granted at the discretion of the Court exercising the discretion judiciously. In support of the argument, reliance was placed on the decisions in the cases of Sunil Chandra Ghosh v. Hem-endra Kr. Deb and B. R.. Mulani v. A. B. Ashwathanarayana . Hence, it was urged that the appellants are entitled to the benefit of the discretion of the Court to be exercised in their favour under S. 20(2)(b) of the Specific Relief Act, 1963. The learned counsel for the appellants has submitted that the appellants have made an application under O.41, R. 27 of the Code of Civil Procedure to produce additional evidence regarding hardship and he does not press for the said application.
28. Sri U. L. Narayana Rao, senior counsel for the respondents, argued that mere rise in price, any inadequacy of price cannot be considered as hardship as land down in the cases of K. Venkoji Rao v. Abdul Khuddur Kureshi (ILR 1991 Kant 1670) : AIR 1991. NOC 119 and S. V. R. Mudaliar (dead) by LRs. v. Rajabu F. Buhari (Mrs.) (dead), by LRs. . It is further argued that merely because the second defendant, the widow of the first defendant, does not have any regular income and she has unmarried daughters, the defendants-3 and 4, cannot come in the way of granting specific performance of the agreement dated 4-12-1979 relying upon a decision of this Court in the case of Yogambika v._Narsingh (ILR 1992 Kant 717). It is further argued that the ordinary rule is that specific performance should be granted and that it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief, relying upon the decision of the Supreme Court in the case of Prakash Chandra v. Angadlal . It is pointed out by the senior counsel for the respondents that the defendants-2 to 7, who pleaded that hardship would be caused to them if the specific performance suit of the plaintiffs is decreed, have not given any evidence in support of their defence.
29. All said and done, the fact remains that defendant-2, the widow of the first defendant, has no sons and she has only two daughters who have to be educated, main-tained and to be married. Defendants-5, 6 and 7 stated to be the brothers and sister of the last son of the testatrix, the first defendant. He was aged about 44 years on the date of the suit and was about 51 years when he died on 15-12-1988. Defendants-5, 6 and 7 are all elder to the first defendant and they must be more than 60 years old. As is disclosed from the letter of the first defendant addressed to the first plaintiff on 31-10-1979, Exhibit P-8, they do not own any other property except the suit schedule property in Mangalore, Moreover, they were not the parties to the agreement to sell dated 4-12-1979. In fact, they were not aware of the said agreement till the year 1982. The plaintiffs are economically well off compared to the defendants. Hence, it is just and fair to hold point No. 4 in favour of the plaintiffs though this point does not gain much importance as the points-1, 2 and 3 having been determined in favour of the appellants.
30. For the reasons stated above, this appeal is allowed. The judgment and decree of the trial Court are set aside. The suit of the plaintiffs for specific performance of the agreement for sale, Exhibit P-10, is dismissed. In the circumstances of the case, the parties to bear their own costs.
31. Appeal allowed.