Madras High Court
Govind Das Purushotham Das And Another vs Shaw Wallace & Co. Ltd., Madras And 4 ... on 27 April, 2000
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
1. These two appeals are directed against the judgment rendered by the learned single Judge of this Court in C.S.No.100 of 1983, which was a suit for specific performance. Appellants in O.S.A.No.124 of 1995 are the five plaintiffs in the suit. The two defendants are the appellants in the other appeal.
2. The agreement alleged by the plaintiffs in the suit is in respect of a very valuable property presently worth several crores of rupees situated in Nungambakkam, a premier area in the City of Chennai. The extent of the property is 28 grounds and 573 sq.ft. with two buildings, thereon.
3. The first plaintiff in the suit has been the tenant of this property for several decades. The last lease agreement being of the year 1978 for a period of five years. It was claimed by the first plaintiff that the first defendant, who is the father of the second defendant and to whose share these property had been allotted at a partition in the family had agreed to sell the property to the first plaintiff or it's nominee by a letter dated 18.8.1979 marked as Ex. P. 9 in the suit. It is also it's case that it has nominated the other plaintiffs 2 to 5 to purchase the property, and that they were all ready and willing at all times to pay the purchase price and obtain the sale deed. The consideration for which the properties alleged to have been agreed to be sold was Rs.10,00,001. No amount was paid to the owner when this alleged agreement came into existence subsequently. Though the claim made by the plaintiffs that they were entitled to enforce the agreement, and that defendants were bound to execute the sale deed was repudiated by the defendants through their replies sent by them to such a claim, their reply having been sent on 3rd May, 1980 and a threat was also held out by the plaintiffs that they would sue immediately on that alleged agreement by the reply of 14th May, 1980, the suit came to be instituted only on 13.8.1982 five days before the expiry of three years from 18.8.1979 and few months prior to the expiry of the last lease in favour of the first plaintiff.
4. In the suit brought by the plaintiffs, several alternate prayers are also made. The first alternate prayer is for a decree for sale of the half share of the first defendant who is the father of the second defendant for a sum of Rs.5,00,000. The second alternate prayer is for the payment as compensation and damages in the sum of Rs.10 lakhs in the event of the Court declining to grant the plaintiff's prayer for specific performance.
5. The case pleaded by the plaintiffs is that after the coming into force of the Tamil Nadu Urban Land Ceiling and Regulation Act. 1978, the first plaintiff was desirous of alienating the property, and offered to sell the same for the first plaintiff and had after discussion with the first plaintiff's officers, signed on the copy of a letter which the first plaintiff had addressed to him at the conclusion of a meeting held on 18.8.1979 and by affixing his signature on that letter, the plaintiff had entered into a concluded and enforceable contract with the first plaintiff for the sale of the property to the first plaintiff or it's nominees. The refusal of the plaintiff to sign the agreement of sale which the first plaintiff sent to the first defendant subsequently on 26.9.1979, according to the plaintiff, was solely with a view to avoid the consequences of the letter which had been signed on 18.8.1979 marked as Ex. P. 9. It was also pleaded by the plaintiff that the first defendant had at an earlier point of time in the year 1976 had initially agreed to sell the property to the co-operative society of the employees of the first plaintiff, but that sale was not effected, in view of the refusal by the competent authority under the Tamil Nadu Urban Land Ceiling Act of 1976 to permit such sale. It is also the case of the plaintiff that even though the first defendant was not the owner of the entire property, the property being joint family property of which his son had a share, the plaintiff had agreed to convey his son's share as well and to enable him to secure the permission of the Court for the share of the son, agreement of sale had been prepared and sent to the plaintiff . It was also alleged that there had been discussions in the residence of counsel for the defendant in November, 1979 that the defendant did not choose to apply to the Court for the sale of the son's share and the defendants, having unreasonably refused to comply with the demand for the sale of the property made by the plaintiff's nominees, the suit had to be and was instituted for specific performance of the alleged agreement, Ex. P. 9.
6. The first defendant denied the existence of any concluded agreement for the sale of the property. The defendant also pleaded that there had been a partition between him and his son, and that the plaintiff had no authority to sell the share of his son without the permission of the Court that since he had no intention of selling his share or that of his son, the question of approaching the Court did not arise. He denied the allegation that on account of the provisions of the Tamil Nadu Urban Land Ceiling Act, 1978, he was anxious to sell the property and had bound himself to sell the property to the first plaintiff as claimed by the plaintiff. The first plaintiff also denied having signed on the copy of any letter of 18.8.1979. It was pleaded by him that that copy was brought out for the first time only in the suit, and no such document had been adverted to by the plaintiff at any earlier point of time. Plaintiff stated that the first defendant, which had been in occupation of the premises as tenant for several decades, had been trying to exert pressure on the first plaintiff to part with the property, and had made offers of purchase, but since he did not wish to sell the property, he did not execute the agreement to sell and had suitably replied to the demand for sale made by the first plaintiff and it's nominees. The defendant pleaded that the plaintiff was keen on snatching the property from him and his minor son at any cost, and had come forward with the suit after the expiry of the last lease, and after he had made a demand for surrender of possession of the property to him at the expiry of the lease which was for five years from 1978 to 1983. The tenancy was to expire on 30th April, 1983, and it was stated that the defendant had called upon the plaintiff to vacate the premises on that day. The defendant had also turned down the plea of the plaintiffs for renewal of the lease.
7. It was alleged by the defendants that solely with a view to continue in occupation of the suit premises, the suit had been instituted by the plaintiffs several years after the date of the alleged agreement of 18.8.1979.
8. The second defendant, after attaining the age of majority, on 17.12.1989 also filed a written statement reiterating what had been said by defendant No.1 and denying that his father had committed himself to sell his the sons share and also that the father that the father could not in law do so, as there had been a partition between the father and son under the document Ex.D.1 of the year 1970 by which the factum of the division of the status was duly recorded.
9. At the trial, two witnesses were examined for the first plaintiff. The first witness P.W.1 being their former Legal Manager and the second witness being it's Director, who had signed the letter of 18.8.1979 marked as Ex.P.9. For the defendants, the first defendant has examined himself as witness. Exhibits P.1 to P.38 were marked for the plaintiffs and Exhibits D.1 to D.17 were marked for the defendants. The learned single Judge framed the following : issues:
"1. Is the agreement of sale pleaded by the plaintiffs, true?
2. Is the agreement of sale in any event binding on the second defendant ?
3. Are the plaintiffs entitled to claim damages and also additional damages and if so to what extent?.
4. Is the suit barred by limitation ?
5. To what relief, are the plaintiffs entitled to ?
Additional Issues :-
1. Whether there was no concluded contract between the plaintiffs and the defendants ?
2. Whether the alleged agreement is enforceable against the defendants ?"
10. The learned Judge held that the letter Ex.P.9 constituted a concluded contract which was enforceable; that that contract was divisible into two contracts, one in respect of father's share in the property, and the other in respect of son's share, that the contract so far as the son's share was concerned was void and unenforceable, as the son at that time being a minor, the Court had not granted any permission for alienation of the son's shares that the consideration payable by the plaintiffs for the purchase of the father's share was, therefore, only one half of the sum of Rs.10,00,000 that the suit was not barred by limitation; and that the plaintiff was not entitled to claim any compensation or damages. The learned Judge also held that the suit was not barred by limitation.
11. We have heard elaborate arguments persuasively put forth by the senior counsel appearing for the parties Sri.Ramasubramaniam for the plaintiffs in the suit and Sri. V. Ramachandran for the defendants. At the time we heard the arguments, the Tamil Nadu Urban Land Ceiling and Regulation Act was still on the statute book. As that Act has since been repealed by the Tamil Nadu Urban Land Ceiling and Regulation Repeal Act, 1999 which came into force on 16th June, 1999, the meticulously prepared and persuasively presented arguments of Sri.Ramasubramaniam regarding the enforceability or otherwise of a contract of sale which includes land which would have been excess vacant land in terms of that enactment in the light of the provisions of that Act, are now not required to be examined, in view of the repeal.
12. The case of the plaintiffs rests entirely on the copy of the letter dated 18th. August, 1979, Ex. P. 9 addressed by it to the first plaintiff, on which the first plaintiff has, according to the plaintiffs, signed. That letter reads as under:
18th August, 1979 To, Mr.P. Govind Das, 2, Naoroji Road, Madras - 31 Dear Sir, Subs:- Land and buildings bearing old Door Nos.4 and 45, Shaffee Mohammed Road, Nungambakkam. Madras of an area of about 28 grounds together with the building etc.. therein.
We confirm the discussions you had with our Director. Mr.T.S. Venkatesan, Messrs.C, Murugesan. C.D.Jagadisan and S.K. Damodaran today at our office.
It is confirmed that you have agreed to sell to us and or our nominees, at a price of Rs.10,00,001 (Rupees Ten lakhs and one only) the above mentioned property of which yourself and your son are the owners.
Thanking you, Your faithfully.
I confirm the above Shaw Wallace & Co., Ltd.
sd/. Sd.........
(P.Govind Das) (T.S. Venkatesan)
Director"
13. This letter, according to the plaintiffs, constitutes a concluded agreement for the sale of the property referred to therein by the by Sri.Govind Das, the first plaintiff, who, according to the plaintiffs, undertook to sell the whole of the property, though a part of it belong to his son.
14. If it were to be held on an examination of this document and the evidence presented in the case that this document does not constitute a concluded contract of sale, the plaintiff would have no case at all, to support their prayer for specific performance,
15. Though the first plaintiff in the written statement denied having signed on the copy of the letter at the bottom, when he was examined as a witness, he did not categorically deny his signature. He stated that the signature looks like his but that he would not have signed the document. No suggestion was made to the plaintiff's witnesses - even though those witnesses had stated in their examination in chief that they were present when that letter was signed by the first defendant and that the signature found in that letter is his signature that the signature found on that letter was not the signature of the first defendant. Learned single judge has, in our view, rightly held that the signature found on the copy of the letter of 18th August, 1979 is indeed the signature of the first plaintiff.
16. That letter, after referring to the lands' and buildings, the area of the lands being around 28 grounds, confirmed the discussion that the first plaintiff had with the Director of the first plaintiff and other officers. After such confirmation, it records that the addressee of the letter had "agreed to sell to us..... ." at a price of Rs.10,000 the property of which the first, defendant and his son were the owners.
17. If this letter was intended to constitute the agreement of sale, the most natural thing for the plaintiff, to do would have been to immediately send the draft of a sale deed or call upon the defendant to produce the title deeds, if the examination of the defendant's title was considered necessary, even though the first plaintiff had been the lessee of the property for several decades. No such thing was done. On the other hand, the very next letter written by the plaintiff to the defendant was the letter to which was enclosed "draft agreement of sale for your approval."
18. In that letter of 26th September, 1979 marked as Ex.P.10, the plaintiff informed the first defendant as under:
"Dear Sir, We refer to our letter dated 18th August, 1979 countersigned by you in acceptance of the terms therein agreeing to sell the above property to us or our nominees for a sale consideration of Rs.10 lakhs (Rupees Ten lakhs). We enclose draft agreement fee of sale for your approval.
Kindly have the draft duly approved and sent to us early to enable us to engross the same on necessary stamp paper and the execution of the agreement is completed in a weeks time.
The draft agreement of sale that was enclosed to that letter. The third paragraph of the recitals therein sets out that:-
"Whereas the vendors have obtained the confirmation of the competent authority under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 by an order of the Competent Authority No. dated - that except for any undivided extent of sq.meters, the remaining area of land in the property is not vacant land within the meaning of the said Act"
The 4th paragraph of the recitals reads thus.
"Whereas the vendors have agreed to sell to the purchaser and the purchaser has agreed to purchase the property for the consideration and on the terms and conditions hereinafter contained."
Clause (1) of that draft agreement sets out that.
"The vendors hereby agree to sell to the purchaser and the purchaser hereby agrees to purchase the property on the " terms and conditions mentioned below."
19. The other terms of relevance are Clauses 3,4,6,8, 9 and 12, Those clauses read as under;
"(3 ) The price for the property is Rs. ...
The purchaser and/or its nominee or nominees are entitled to purchase the property in one lot or in separate lots at the option of the purchaser and/or its nominee or nominees.
(4) The purchaser will apply for and obtain the sanction of the competent authorities for the sub-division of the property into two or more plots as the purchaser may desire, and all expenses of such sub-division will be borne by the purchaser. The vendor, will execute in favour of the purchaser and it's nominee or nominees separate sale deed or sale deeds at the option of the purchaser in respect of such plot or plots.
(6) The purchaser shall not be bound to purchase the property, if the purchaser's advocates certify that the vendors do not have a clear and marketable title to the property. The purchaser's advocates should complete the inspection of the title deeds and other records within two weeks of the vendors making all such documents and information required available to the purchaser's advocates.
(8) The purchaser has this day paid a sum of Rs......as advance to the 1st vendor. Subject to the right of purchaser to adjust the advance against any amount payable to the purchaser as damages under Clause 13 below. The advance will be refunded to the purchaser by the 1st vendor on demand in the event of the sale not being completed or shall be adjusted against the purchase price of the Property payable to the vendors on the execution and registration of the deed or deeds of sale.
(12) The purchaser will always have the first option to purchase the property for the consideration herein stated viz., Rs...... if for any reason the vendors are presently prevented from selling the property to the purchaser pursuant to this agreement of sale."
20. This draft agreement of sale thus sets out the conditions subject to which the first plaintiff was willing to purchase the property. This is made amply clear in clause (1) of the agreement, which states that "the vendors agree to sell and the purchaser hereby agrees to purchase the property on the terms and conditions mentioned below". Several of the terms and conditions mentioned in the draft agreement are not mentioned in the letter-Ex.P. 9. It is evident that that the parties did not intend to treat the letter Ex.P.9 as an agreement of sale. Though it was claimed by the plaintiff's subsequently that the draft agreement was prepared to enable the defendants to apply to the court for the permission to sell the son's interest, no such thing is mentioned in the letter of 26th September, 1979. It is apparent that neither of the parties regarded Ex.P.9 as an agreement of sale. The first plaintiff itself regarded the execution of an agreement to sell as essential and had therefore prepared the draft with several clauses meant to confer rights on the first plaintiff for it's convenience. The obligation sought to be cast by Clause (4) to secure sub division of the property and execute separate sale deeds, in respect of the nominees of the plaintiffs, is entirely at the option of the plaintiff. The plaintiffs are relieved of their obligation to purchase, if it's advocate did not certify that the defendants have clear and marketable title. By clause (12) a first option without any limitation of time, is to be conferred on the first plaintiff for the purchase of the property, if for any reason the defendants are prevented from selling the property pursuant to that agreement of sale. The first defendant did not intend to treat Ex.P.9 as an agreement of sale, and he too contemplated the execution of a separate agreement of sale.
21. It is not the case of the plaintiff that the draft agreement was at any point of time accepted by the defendant. Admittedly the agreement to sell as per the draft enclosed to Ex.P. 10 letter was not executed.
22. It is the consistent stand of the defendants that there has never been a concluded agreement to sell, although the first plaintiff repeatedly expressed interest in the purchase of the property, and had suggested ways of securing the Interest of the minor son after the sale of the property. If such sale were to take place.
23. After this draft agreement was sent to the defendants, a meeting took place in the presence of the Advocate for the defendants. It is obvious that at that meeting, the defendants were unwilling to execute the agreement of sale that had been sent by the plaintiff. About two months after that meeting, that meeting having taken place in November, 1979, the nominees of the first plaintiff, being defendants 2 to 5 wrote to the defendants claiming a right to purchase the property, and informing the defendants that they would draft a sale deed to enable the defendants to secure the approval of the Court for the sale of the son's interest. The first plaintiffs also wrote to the defendants that it has nominated defendants 2 to 5 to be the purchasers. By reply dated 29.2.1980 marked as Ex.P.17 the first defendant stated thus:-
"I have for acknowledgment of your letter of the first February, 1980, and I am surprised to note the contents thereof Though I had discussed the question of sale of my property at Shafee Mohamed Road, Nungambakkam, Madras-6 no final agreement was reached. You are also aware that you had prepared a draft agreement and I had declined to execute the agreement and hence no final agreement was arrived at between us in this regard. In these circumstances, your statement that I have confirmed the agreement is not correct and the question of your nominating persons to purchase the property does not arise."
24. The plaintiffs thereafter sent a notice on 12th April, 1980 through counsel marked as Ex.P. 19 demanding, the execution of a sale deed and asserting that the draft agreement of sale had been prepared at the request of the first defendant.
25. A reply to that letter was sent through the defendant's counsel on 3rd May,1980 (Ex.P.20), wherein, it was stated that the first plaintiff had been offering to purchase the property, that he had not given his commitment in that regard; that he had never undertaken to obtain the sanction of the Court for the sale of his minor son's share which he was not competent to alienate without such sanction. He also denied that he had requested the plaintiff to prepare the draft agreement of sale for the purpose of enabling him to apply for sanction of the court; that he had declined to subscribe to the agreement, as he was not desirous of selling the property; that it was not correct that he had not objected to the contents of the draft agreement; that the sum of Rs.10 lakhs was not the price which could be reasonably expected for the property; that the property was worth much more, and that the first plaintiff being the tenant in possession of the property for a long number of years, was trying to pressurize the first defendant to agree to sell the property.
26. Though the plaintiff reiterated it's stand in it's rejoinder to the notice on 14th May, 1980 under Ex.P.21, and threatened to file the suit when the court reopened after the summer vacation the suit came to be filed only two years later just as the period of the lease in favour of the first plaintiff was due to expire.
27. This sequence of events further lends support to the view that what was set out in the letter Ex.P.9 was neither intended to be nor regarded as constituting an enforceable agreement to sell.
28. Learned counsel for the defendants invited our attention to the passage in Halsbury Law of England IV Edn.. Vol.IX Page 226 which deals with the formation of agreement. The portion relied on reads thus:
"Agreement is usually reached by the process of offer and acceptance and, where this is so, the law requires that there be an offer on ascertainable terms which receives an unqualified acceptance from the person to whom it is made."
29. Reliance was also placed by learned counsel for the defendant in the suit on the following decisions of the Apex Court, and other Courts.
30. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, and others, the Court, with regard to Section 20 of the Specific Relief Act, observed thus"
"S. 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
31. In Scammell v. Ouston, 1941 All.E.R 14, the House of Lords held that where an agreement provided that the balance of the purchase price was to be had on hire purchase terms over a period of two years, but the precise terms of the hire purchase agreement were not settled, there was no concluded agreement, as the expression of hire purchase terms were too vague to be given in a definite meaning.
32. In Van Hatzfeldt-Wildenburg v. Alexander, 1912 CD 284 it was held by the Chancery Judge that where an acceptance by the purchaser, of an offer of sale of a house was subject, among other conditions, to the condition that her solicitors would approve the title to and covenants contained in the lease, the title from the freeholder, and the form of contract, such a document was not a complete contract susceptible of being enforced by way of specific performance.
33. In G.Krishna Reddy v. M.M.Thimmiah and another, , a Division Bench of this Court held that if a document entered into between two parties as constituting a contract, contemplates the execution of a further regular agreement between the parties, it is a matter of construction whether the execution of a further contract is a condition of the terms of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement should be performed. In the former case, there cannot be an enforceable contract unless the condition is fulfilled, or on the ground that law does not recognise a contract to enter into a contract. The fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by previous agreement, when there is a written document which is followed by further negotitions in the form of correspondence, the entirety of the correspondence has to be looked into, to find out whether there has been a completed contract or not.
34. In Sri Satya Prakash Gael v. Ram Krishna Mission and others, A.I.R. 1991 All. 343, it was held that where in a suit for specific performance of contract for sale, it was found that the alleged letter of acceptance of offer of price on behalf of the purchaser, by the seller, referred to future negotiation for finalisation of more terms of contract, it could not be said that there was concluded contract between the parties against which a decree for specific performance could be granted.
35. In Shanmugam, A. v. T.R.Kannappa Mudaliar, 1989 L.W. 108 it was held by a learned single Judge of this Court, Srinivasan, J. as he then was, that the question whether there is a concluded agreement to sell between the parties, that question has to be decided on the facts of each case and where parties contemplate a further agreement in writing, as a term of the bargain, or whether it is a mere expression or desire of the parties as to the manner in which the original agreement is to be performed, is required to be decided upon the evidence.
36. In Perace v. Watts 20 L.R. 492 (Equity Cases), it was held by the Master of Rolls that wherein a contract for the sale of an estate, vendor reserved the necessary land for making a railway through the estate, the reservation was void for uncertainty and the contract could not be enforced.
37. In Selvaraj, M. v. P.Kumariah, 1998 (1) L.W. 216, it was held that Courts are enjoined to protect the interest of the minor children. On the facts of that case, it was further held that the plaintiffs are not entitled to ask for a decree directing the defendants to execute a sale deed in respect of the entirety of the properties, and if at all they could get a sale deed executed by the defendant in respect of the defendant's undivided one-fifth share in the properties; if the plaintiffs are willing to pay the entire consideration as agreed to in the sale agreement.
38. Learned counsel for the plaintiffs relied on the following decisions:
39. Harichand Mancharam v. Govind Luxman Gokhale, 1912 (44) M.L.J. 608, wherein the Privy Council held that where a contract of sale of land contained all the necessary terms and provided that the bargain paper shall be prepared by a Vakil, the later provision cannot be considered as a condition precedent and the purchaser is entitled to have specific performance of the contract.
40. Santhos Kumar v. Varghese George, a decision which also been relied upon by the counsel for the defendants. Counsel only sought to distinguish the facts of that case and the facts of this case in support of his submission that the document, Ex.P.9 did not contemplate the further agreement being drawn up and, therefore, the law laid down in that decision would not be applicable here. In that decision of the High Court followed the ruling of the Privy Council referred to earlier in the case of Harichand, 1912 (44) MLJ 608, wherein, it has also been observed thus:
"Whether an agreement is a completed bargain or merely a provisional arrangement depends on the intention of the parties deducible from the language used by the parties on the occasion when the negotiations take a concrete shape. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Wharton, 1857 (6) H.L.C. 238, the fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement."
41. In Kartar Singh v. Harjinder Singh, , the Court held that specific performance could be granted in respect of half share of a brother who had entered into an agreement for himself and on behalf of his sister, after the sister refused to sell her share, as the agreement was capable of being split. It was also held that specific performance could not be refused on the ground that the property will have to be partitioned, as the vendee would have the right to apply for partition and get the share demarcated. It was also observed that specific performance cannot be refused merely because properties are scattered at different places.
42. In S.V.R. Mudaliar v. Rajabu F.Buhari Court, held, in a case where the original owner sought to specifically enforce an agreement for reconveyance, that merely because prices have risen during the pendency of litigation, specific performance could not be denied.
43. Ex.P.9 is at best a provisional arrangement and no more. The preparation and despatch of the draft agreement to sell also evidences that the document, Ex.P.9 did not amount to an enforceable agreement, was not regarded as such by the parties, and that the parties intended an agreement to sell being executed by the parties setting out the terms subject to which the bargain was to be concluded. Such an agreement was never executed though a draft was prepared sent by the first plaintiff under Ex.P. 10. Draft of a sale deed was never prepared.
44. There being, no concluded contract and enforceable contract, the question of granting specific performance does not arise.
45. As regards the share of defendant No. 2 in the property, the fact that he is entitled to a half share is undisputed. The second defendant was at the relevant point of time a minor. He was divided in status from his father, as, is evident from Ex.D.1, which has not been questioned. That document is of the year 1970. After the division in status, the son's undivided half share could no longer be regarded as constituting joint family property, of which, the father could claim to be the manager. The permission of the Court for alienating the son's undivided half share was absolutely essential. That was fully recognised by the plaintiff. The plaintiff in fact put forth the plea that it was on account of a disagreement regarding the manner in which the sale proceeds in respect of the son's shares are to be invested, that led to the first defendant's refusal to sign the draft agreement to sell. The son after attaining majority, has filed the written statement asserting his rights in the property denying any intention to sell the same, and also stating that his father had no time been authorised by him to contract to sell his share of the property to anyone, Any transfer of the minor's interest without the permission of the Court would clearly be against the provisions of the Hindu Minority and Guardianship Act, unless such alienation had been first permitted by the Court. On the admitted facts, no such permission was sought or obtained. There is, therefore, no question of the second defendant becoming liable to sell his share in the property to the plaintiff by reason of the existence of Ex.P.9. The trial Judge has rightly held that the plaintiff has no case at all as against the second defendant. The appeal preferred by the plaintiffs against that finding and denying to the plaintiff's specific performance in respect of second defendant's share in the property is required to be, and is dismissed.
46. Even if we were to assume that the document, Ex.P.9 is capable of being construed as a concluded contract, on the facts of the case, we would not be inclined to exercise our discretion in favour of the plaintiff to decree specific performance. The first plaintiff has admittedly been the tenant in occupation of this building, which is extremely valuable with vast grounds, several buildings, Swimming Pool, Tennis Court and open spaces, and the tenancy of the first plaintiff was to come to an end by April, 1983. The first defendant had communicated to the first plaintiff his desire to resume possession or at any rate his unwillingness to renew the lease. The first plaintiff, it is apparent, was anxious to secure the property to itself, and even though there may have been some tentative discussions, even after the first defendant had indicated his firm resolve not to part with the property, the plaintiff, just before the period of limitation expired a few days before expiry of three years from the date of Ex.P.9, to come to Court with a demand for specific performance. Not a single pie had been paid to the plaintiff as advance, even though it is evident that in the agreement to sell that was drafted and sent by the plaintiff to the defendant, payment of such advancer provided for. In the letter accompanying the draft agreement, it was nowhere stated that a draft was being sent to enable the first defendant, apply to the Court to secure permission for the sale of his son's share. Such an explanation was sought to be put forward only after the first defendant had declined to execute the agreement to sell. This conduct of the plaintiff disentitles it from securing the relief of specific performance, even if it were to be assumed that the document on which the suit is founded is capable of being regarded as a concluded contract.
47. Moreover, in the plaint itself, the plaintiff has prayed for an alternative relief by way of compensation and damages. It is clear that the plaintiff itself recognised that the suit brought by it in the background of the facts already adverted to may not meet the standards required to be met for securing the relief of specific performance. While the plaintiff had invested nothing, and would not lose anything by bringing forward the suit, the defendant was sought to be placed in a situation where extremely valuable property was sought to be taken away from him for a relatively modest sum. Even if the price mentioned in Ex.P. 9 could be regarded as the fair market price at that time, the long pendency of the suit is not a factor to be altogether ignored. There has been tremendous appreciation in the value of the property in these last twenty years. The plaintiff has continued to retain possession as a statutory tenant. If Ex. P. 9 was to be regarded as a concluded contract, the plaintiff would at best be entitled to compensation upto the sum claimed in the suit, and no more.
48. The question of limitation was not argued before us, as it is clear from what has been stated in the judgment under appeal that the suit had in fact been filed just before the expiry of a period of three years from the date of Ex.P.9.
49. In view of our finding that the plaintiff has failed to prove that there was a concluded and enforceable agreement for the sale of the property, the plaintiff is not entitled to any relief in the suit. The appeals of the defendants viz., O.S.A.No.225 of 1994 is, therefore, allowed and the suit filed by the plaintiffs in C.S.No.100 of 1983 shall stand dismissed with costs.