Govind Das Purushotham Das and Another vs Shaw Wallace and Co. Ltd., Madras and 4 Others

R. Jayasimha Babu, J.—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.

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.

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.

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.

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.

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.

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.

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.

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:

Is the agreement of sale pleaded by the plaintiffs, true?

Is the agreement of sale in any event binding on the second defendant ?

Are the plaintiffs entitled to claim damages and also additional damages and if so to what extent?.

Is the suit barred by limitation ?

To what relief, are the plaintiffs entitled to ?

Additional Issues :-

Whether there was no concluded contract between the plaintiffs and the defendants ?

Whether the alleged agreement is enforceable against the defendants ?

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.

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.

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

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.

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,

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Reliance was also placed by learned counsel for the defendant in the suit on the following decisions of the Apex Court, and other Courts.

In Parakunnan Veetill Joseph''s Vs. Nedumbara Kuruvila''s and Ors, : 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.

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.

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.

In H.G. Krishna Reddy and Co. Vs. M.M. Thimmaiah 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.

In Sri Satya Prakash Goel Vs. Ram Krishan Mission and others, , 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.

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.

In Perace v. Watts 20 L.R. 492, 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.

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.

Learned counsel for the plaintiffs relied on the following decisions:

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.

Santhos Kumar and Others Vs. Verghese George and Others, :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.

In Kartar Singh Vs. Harjinder Singh and others, , 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.

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.

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.

There being, no concluded contract and enforceable contract, the question of granting specific performance does not arise.

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.

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.

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.

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.

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.