Subodh Chandra Nandy and Others vs Himanshu Bala Bose and Others

Chakravartti, C.J.—A great many points were debated before us in course of the argument on this appeal, but the more important of them all bear on one broad question, viz., whether when the Commissioner of Partition accepted the offer of the appellants, there was a concluded agreement for sale or whether there was only a partial agreement as to some of the terms so that in the absence of the remaining terms being agreed to within the stipulated time, the Commissioner was entitled to break off the negotiations and consider better offers which he had subsequently received. Mallick, J., has held that there v/as no concluded agreement for sale and since Respondent No. 4 had come forward with a higher offer, the Commissioner ought to be directed not to complete the sale to the appellants and to hold a fresh sale by an auction limited to the appellants and the said Respondent. The facts are as follows: In 1951, Respondent No. 1, Sm. Himangshu Bala Bose, who owns an eight annas share in premises No. 52, Durga. Charan Mitterg Street, brought a suit for a partition of the house. Her co-sharers are Respondent No. 2, Sailendra Prosad Bose and Respondent No. 3, Anil Krishna Ghose, each of whom owns a four annas share. The preliminary decree passed in the suit provided that if it was found that the house could not be conveniently partitioned by metes and bounds, the Commissioner of Partition should sell it by public auction or private treaty to the best purchaser or purchasers available, subject to at least the reserved price being obtained. The Surveyor appointed by the Commissioner of Partition reported that a physical division of the house in accordance with the shares of the parties was impossible and the parties accepted that position. They also accepted the valuation made be the Surveyor. The house was then put up for sale by public auction on the 21st November, 1953, but as none of the bids offered reached the reserved price, the sale was abandoned The plaintiff then applied to the court for directions. On the 4th May, 1954, the court ordered that the Commissioner should sell the house by public auction to the best purchaser or purchasers available or sell it by private treaty, subject to the reserved price of Rs. 35,000, but that no sale by public auction should take place within two months, during which period the parties would be at liberty to negotiate a sale by private treaty. The actual order has not been included in the Paper-Book, but it would seem that, this time, the Court did not attach any condition as to the reserved price to a sale by public auction, presumably in the view that since the first attempt at such a sale had failed to attract any purchaser who was prepared to pay at least the reserved price, it would be useless to insist on the condition, if even private negotiations during a period of two months failed to secure any offer of that amount and if a second public sale became necessary. Be that as it may, shortly after the order of the Court, three offers were received by the Commissioner which he placed before the parties at a meeting held on the 12th June. 1954. At that meeting, the plaintiff and Anil Krishna Ghosh were, represented by their respective solicitors, the plaintiff being further represented by a brother and a son-in-law, while Sailendra Prosad Bose was present in person. The meeting was also attended by a solicitor, named Mr. B. K. Mukherjee, on behalf of the Appellants who had sent in an offer and he attended, as the minutes say, at the request of the solicitors for the plaintiff and Anil Krishna Ghosh.

Of the three offers received by the Commissioner, one was from the Appellants, one from Respondent No. 4, Sushil Kumar Mukherjee and one from a third party, named Satcowri Sett. The offer of Sushil Kumar Mukherjee was Rs. 36,500 while the offer of the Appellants was Rs. 36,000 and the offer of Satcowri Sett was the same. Sushil Kumar Mukherjee''s offer was rejected at the very beginning, because it was coupled with a condition: that vacant possession must be given, but to give such possession was impossible, as had been expressly stated in the conditions of sale prepared for the public auction. It appears that the shares, now owned by Anil Krishna Ghosh and Sailendra Prosad Bose, belonged previously to one Sarat Chandra Bose who was continuing to reside in the premises in spite of having sold off his share. Sailendra Prosad Bose also was not likely to be more co-operative in regard to giving up possession of the portion which he was occupying. The conditions of sale had accordingly stated that the purchaser would have to obtain possession by taking steps on his own account and at his own expense. After rejecting the offer of Sushil Kumar Mukherjee on the ground: that it was a qualified offer, the meeting proceeded to the consideration of the two remaining offers which were unqualified, but before it did so, some of the terms of the sale were made clear. The solicitor for Anil Krishna Ghosh stated, and the solicitor for the plaintiff agreed, that one or the other of the two remaining offers might be accepted, provided the purchaser would not ask for either vacant possession or production of the original title deeds and would abide by the conditions of sale, of which he might have a copy from the plaintiff''s solicitor before the agreement for sale was entered into. By conditions of sale were meant the conditions prepared at the time of the previous sale by public auction, for no fresh conditions had been drawn up for the purposes of a private sale. While the above opinion was expressed on behalf of the plaintiff and Anil Krishna Ghosh as regards the acceptance of the remaining two offers, Sailendra Prosad Bose was unwilling to express any opinion. Mr. B.K. Mukherjee whose clients had already submitted an unqualified offer and who heard the terms, made no comments thereon, but only asked whether the parties were prepared to give an undertaking not to let out the premises or any part thereof to tenants during the subsistence of the agreement for sale. All the parties promptly replied that they were prepared to give the undertaking asked for.

When the consideration of the offers next began, the Commissioner remarked at the outset that since the Appellants and Satcowri Sett had made offers of equal amounts he could not accept the Appellants'' offer without reference to Satcowri Sett who was neither present, nor represented. He added that if the offer of the Appellants was increased to some extent, it could be accepted immediately. Thereupon Mr. B.K. Mukherjee raised the offer of his clients to Rs. 36,100. The solicitor for the plaintiff then stated that the increased offer of the Appellants might be accepted and that his client was agreeable to its acceptance. The Solicitor for Anil Krishna Ghosh expressed a similar opinion, but Sailendra Prosad Bose did not either object or agree. The Commissioner then recorded the following order:

Having considered all the aforesaid facts and having been fully acquainted with the views of all the parties herein, I accept the offer of Mr. B.K. Mukherjee''s clients for Rs. 36,100. At the request of Mr. B.K. Mukherjee, I direct Mr. R.M. Kar to send a copy of the conditions of sale by Monday, the 14th June, 1954. I would request Mr. B.K. Mukherjee to send the draft agreement for sale to Mr. R.M. Kar in course of the next week. I fix the earnest money at Rs. 2001. If the draft agreement for sale is not sent by the 21st June, 1954, then the offer may at my option be treated as cancelled. 1 direct Mr. R.M. Kar at the request of Mr. B.K. Mukherjee to send him a copy of the minutes of the meeting.

Mr. R.M. Kar, I may point out, was the solicitor representing the plaintiff. It appears that after the Commissioner had passed the above order, Sailendra Prosad Bose stated that he would not sell his right, title and interest in the family dwelling house.

As directed by the Commissioner, Mr. R.M. Kar sent the conditions of sale to Mr. B.K. Mukherjee and Mr. Mukherjee sent a draft agreement to Mr. R.M. Kar on the 17th June, 1954. The agreement, so sent, did not conform to the conditions of sale but included a number of terms, some of which were new and some ran counter even to those conditions which were specifically mentioned at the meeting of the 12th June. Thus, the draft agreement sought to make it a condition that before the sale was completed, Sarat Chandra Bose would be evicted from the premises and, further, that if on a measurement to be held before the completion of the sale, the area was found to be less than what had been stated in the Notification of sale, the price would abate at a certain rate per cottah. It appears that Mr. R.M Kar did not return the draft to Mr. B.K. Mukherjee even up to the 7th July, 1954, for there is a letter addressed by Mr. Mukherjee to Mr. Kar on that date in which he was complaining that in spite of several reminders, the draft had not yet been returned. In the meantime, on the 18th June, 1954, Messrs. R.C. Basu & Co., a firm of solicitors acting for Sushil Kumar Mukherjee, had written a letter to the Commissioner. In that letter they stated that they had heard that the Commissioner had agreed to accept an offer lower than their client''s, which it had not been proper on his part to do, but if the sale was still open, their instructions were to make an offer of Rs. 40,000 for the property, free of incumbrance, and subject to approval of title by themselves. On receipt of that letter, the Commissioner held a meeting of the parties on the 21st June, 1954, but the proceedings of the meeting have not been printed in the Paper-Book. On the next day, the Commissioner replied to the letter of Messrs. R.C. Basu & Co., and after explaining why the offer of their client had been rejected, informed them that the offer of the Appellants having been accepted, there was a binding and concluded contract with them. He, however, added, without prejudice to his contention that there was already a binding agreement for sale, that if their client was agreeable to purchasing the property on certain conditions, one of them being that vacant possession was not to be expected, the solicitors might inform him within three days so that necessary steps might be taken in the matter. The solicitors replied on the 23rd June to say that their client was willing to purchase the property on the conditions mentioned in the Commissioner''s letter and that if the matter was mentioned in court for any reason, they might be given notice.

On the 1st July, 1954, the Commissioner mentioned the matter before Sarkar, J., but the learned Judge observed that it was only for the parties, if any of them felt aggrieved, to approach him for directions. Thereupon, on the 12th July, 1954, the plaintiff applied for an order, restraining the Commissioner from entering into an agreement for sale with the Appellants and directing him to sell the property to Sushil Kumar Mukherjee at the price of Rs. 40,000 or sell it by a public auction, limited to him and the appellants. The application came up for hearing before Mallick, J. It appears that Mr. R.M. Kar had never returned the draft agreement to Mr. B.K. Mukherjee, but he had altered it so as to bring it into conformity with the conditions of sale as also the terms decided on at the meeting of the 12th June, and sent it to the Commissioner. A copy of the draft agreement, as so altered, was annexed to the plaintiff''s application. In their affidavit-in-opposition, the Appellants stated that they were agreeable to accepting the alterations made in the draft agreement. The learned Judge, however, stopped the sale to the Appellants and directed the Commissioner to hold a fresh sale as between them and Sushil Kumar Mukherjee, subject to an undertaking given on behalf of the latter to offer a bid for at least Rs. 40,000. He proceeded on the view that there had been no concluded agreement for sale with the Appellants and since a higher offer had since been received for the property, it would be proper to allow the owners to have the benefit of it. The present appeal has been preferred against that order.

On behalf of the Appellants it was contended that there had been a completed agreement for sale with them and that the learned Judge had erred in directing the Commissioner not to proceed with it and carry it out, simply because a higher offer had since been received. The Respondents contended that there had been no concluded agreement with the Appellants and, further, that there had been certain irregularities in the proceedings which had led up to the acceptance of their offer, for which reason also the sale to them could not be completed. On their side, the main argument addressed to us was on behalf of Respondent No. 4, Sushil Kumar Mukherjee.

Mr. A.K. Sen, who appeared on behalf of Respondent No. 4 was at some pains to establish that where this Court made a decree in a partition suit, directing the Commissioner of Partition to sell a particular property of the parties, it would always intervene to stop a sale if it was not being made in accordance with law or with the directions contained in the decree and could make such further orders as to the sale of the property as the interests of the parties might require. He relied on the decision of myself in the case of Rani Bala Bose & others v. Hirendra Chandra Ghosh & others (1) (52 C.W.N. 739). The Appellants did not dispute the jurisdiction of the Court and therefore no discussion of that question is called for. In so far as the decision was relied on in support of the grounds of irregularity urged against the present sale, I do not see that it is of any assistance. There, a sale made by the Commissioner was impugned by all the defendants in the suit on the ground of irregularities for which the parties had in no way been responsible and which they had in no way condoned. In the present case, it was said that the Commissioner had issued no advertisement in connection with the sale by private treaty, that he had allowed one of the intending purchasers to be present at the meeting of the 12th June without giving any opportunity to the others to attend and that he had allowed the Appellants to increase their offer at the meeting and then accepted it without reference to the two other persons who also had sent in offers. These objections were sought to be urged on behalf of Respondent No. 4, who was one of the intending purchasers and two of the three parties to the suit, viz., the plaintiff and Anil Krishna Ghosh. Sailendra Prosad Bose did not appear in the appeal I am unable to see how the objections could be open to any of the parties who were seeking to press them.

As to the omission to issue advertisement, I do not think it possible to say, from what has been set out as the order of Sarkar, J., in paragraph 14 of the Plaintiff''s own petition, that he directed advertisements to be issued even in respect of a sale by private treaty. His direction was that no sale by public auction should take place within two months from the date of his order and that, in the meantime, the parties would be at liberty to negotiate a sale by private treaty. That direction would seem to imply that for a sale by private treaty, purchasers would have to be secured by private efforts. It was said that the learned Judge had also directed that the sale should be to the best purchaser or purchasers and that the best purchaser could not be secured except by publishing advertisements. The practice of the court was also invoked. As the order set out in paragraph 14 of the plaintiff''s petition reads, the condition as to the best purchaser appears to have been attached only to a sale by public auction, but assuming that it was attached also to a sale by private treaty and assuming further that the rules of the Court required advertisements to be issued, neither the plaintiff, nor Anil Krishna Ghosh raised any question as to the issue of advertisements but, on the other hand, their solicitors proceeded to consider the offers which had been received and even to accept one of them. If, again, the solicitor representing the Appellants was allowed to be present at the meeting of the 12th June, he was so allowed at the request of the solicitors for the plaintiff and Anil Krishna Ghosh. If the Appellant''s offer was accepted without reference to the other two intending purchasers, it had been done at the proposal of the solicitor for the plaintiff which the solicitor for Anil Krishna Ghosh supported. In those circumstances, even if the objections might have to be considered in case some co-sharer who had not participated in the sale, raised then, it would not possibly be open to either the plaintiff or Anil Krishna Ghosh to raise any of the objections.

As for Respondent No 4, he did not require any advertisement to be apprised of the intended sale, but actually submitted an offer without any advertisement being published. An objection by him that no advertisements were issued is therefore wholly pointless. The remaining objections are not open to him. The sale was a sale by private treaty. Respondent No. 4 had sent in an offer and was only entitled to insist that that offer must not be improperly rejected. But if no exception could be taken to the rejection of that particular offer, as it was -and none was taken-he was not further entitled to insist that the Commissioner or the parties should go on treating with him or keep him associated with further negotiations with other persons with respect to the sale. Once the offer submitted by him was properly eliminated on its merits as liable to rejection at sight, how the property was sold and to whom was no concern of his. By sending in an offer, he acquired no right to be given further chances of making better offers and if after rightly rejecting his offer and also rejecting the original offers of the other two intending purchasers, the Commissioner and the parties accepted an increased offer from one of them, he could not be heard to complain. It is true that a representative of the purchaser to whom the property was agreed to be sold was present at the meeting while he was not. But there is nothing to show that the successful purchaser was not present at the meeting through a representative by his own enterprise upon procuring a request from two of the co-sharers or that there was any collusion between him and the parties or the Commissioner. Really, however, no question of collusion arises. The parties were selling their own property and they were selling it through the Commissioner. They were entitled to sell it to anybody they liked and in any manner they might choose, so long as they did not transgress the terms of the decree and so long as they did not reject improperly the offer sent in by any of the intending purchasers. In a sale by private treaty, the only right of Respondent No. 4 was to insist that the offer submitted by him must not be wrongly rejected, but that right not having been violated, he is not competent to maintain any objection to the acceptance of the offer of any other person or the manner of its making or acceptance. Indeed, it was strange to find Respondent No. 4 in the same camp with the plaintiff and Anil Krishna Ghosh and protesting against the acceptance of the Appellants'' offer by them, they themselves joining in the protest.

Complaints of alleged irregularities in the sale proceedings are thus not open either to the plaintiff and Anil Krishna Ghosh or to Respondent No. 4, Sushil Kumar Mukherjee. But the first two, being co-sharers of the property under partition, are competent to contend that there was no concluded agreement with the Appellants and therefore, in view of the higher offer received, the Court ought to direct the Commissioner not to proceed with the sale to them. In my view, even this contention is not open to Respondent No. 4, who is a stranger to the suit and who, after the rejection of his own offer on its merits, has no right to intervene in any proceedings of sale to a third party and contend that the sale ought not to be completed. This disability of Respondent No. 4 is, however, of no practical consequence, since the question can and has to be gone into at the instance of the plaintiff and Anil Krishna Ghosh. It is true that the main argument addressed to us was by the learned counsel for Respondent No. 4, but since the learned counsel for the plaintiff and Anil Krishna Ghosh adopted his arguments, we may take the arguments as addressed on their behalf.

The question of a concluded or un-concluded agreement is, for the reasons already stated, one between only the plaintiff and Anil Krishna Ghosh on one side and the Appellants on the other. As between them, to balance the equities is not easy. It is perfectly clear that the plaintiff and Anil Krishna Ghosh, after having themselves caused the Appellants'' offer to be accepted and having apparently been very happy at the time to do so, are now seeking a loophole to get out of the transaction, because they have before them the lure of a higher price for the property. It is equally clear that the Appellants, after having contrived to have their offer accepted with a last-minute increase of a few rupees in the absence of the other intending purchasers, began trying to have the conditions of sale adjusted to their own liking, as soon as they felt secure. If Respondent No. 4 can be taken into account at all, it is clear that he too after having made a poor offer which was promptly rejected, began to repent as soon as he found the property passing out to others and then made an attempt to recover lost ground by sending in an offer, substantially higher than the one accepted. From the point of view of equity, there is no reason to prefer anyone of the three parties to the others. But the Court must decide the question which has arisen and it must be decided in accordance with the strict position in law. The task of the Court, however, has not been made easier by the inexplicable conduct of the Commissioner on two occasions. If he thought that he could not properly accept the original offer of the Appellants without reference to Satcowri Sett, who had offered an equal price, it is difficult to understand how he found it proper to allow the appellants to increase their offer in the absence of Satcowri Sett. Again, if he thought that after he had accepted the offer of the Appellants, there was a binding contract with them, as he told Respondent No. 4, it is not intelligible why, at the same time, he asked for a clarification of his new offer so that necessary steps could be taken in the matter. There could be no question of taking any steps, if the sale was no longer open.

To proceed now to a consideration of the question, the objection that there is no concluded agreement is generally taken in one or the other of two forms. It is said that there was only a conditional agreement and since the condition has not been fulfilled. the agreement never matured into a binding contract of which specific performance could be had. Or it is said that there was only a partial agreement, covering only some of the terms of the contract and since the remaining terms still remained to be agreed to, there was no completed contract which could be enforced. Mallick, J., appears to have regarded the present case as falling under the second category. He held that the offer of the Appellants had not been made on the basis of the conditions of sale, because they had not then been even seen, and since the Appellants had subsequently been proposing modifications of the conditions, it was clear that the parties had not passed the stage of negotiation. "Many points", observed the learned Judge, "have yet to be hammered out before the agreement is finalised". He held further that under Rule 10 of Chapter XXVII of the Rules of the Original Side, payment of the earnest money was one of the conditions of sale and the sale could not be taken to have been completed before the earnest money was paid. In the argument before us, the distinction between the two types of case I have mentioned was not always maintained.

Whether or not there was a concluded contract depends upon the true construction of what the parties said or did or wrote at the time when the contract is said to have been concluded. If it appears that all the material terms were agreed to at the time or were capable of being ascertained without further agreement between the parties, a concluded contract must be held to have resulted. But if it appears that only some of the terms were agreed to, while other material terms remained still to be negotiated, no completed contract can be found. So also where it appears that although terms and conditions relating to all material matters were broadly referred to by the parties, the exact form of all or some of them had still to be negotiated and agreed to, it is not possible to find any precise contractual intention and it must be held that the contract had not been concluded. Again, if it appears that the agreement was only a conditional one, the acceptance being subject to certain conditions specified at the time or to be specified, and it is found that those conditions have not been fulfilled, no concluded contract can be said to have come into existence. On the other hand, if it appears that there was a mutual assent which, as to its nature, was unqualified and, as to its extent, covered all the terms under negotiation which included all material terms, then it must be held that there was a concluded contract and in such a case subsequent negotiations will not detract from its binding character. If, however, the subsequent negotiations show that the original negotiations did not cover certain material terms or that although such terms were mentioned, no agreement as to them was reached, then again it must be held that there was no complete and concluded contract. In all cases where one party seeks to hold another to a contract which the party charged says is not a binding or concluded contract, the enquiry must be as to whether a final agreement was reached or the parties were still in negotiation. So long as the parties are in negotiation, either party may retract, but once there is a final agreement, the contract cannot be avoided except by the consent of both parties.

The principles I have summarised above have been laid down in a multitude of decided cases but the distinction between those in which it has been held that there was a concluded contract and those in which it has been held there was none, is often remarkably fine. Where the controversy is as to whether there was a complete or partial agreement, cases have differed as to what terms are essential to the making of a complete contract and what terms are merely subsidiary or incidental. Where the controversy is as to whether there was an absolute or a conditional agreement, the difference of opinion has been as to when a stipulation is a condition of the acceptance and when it is only a term of the contract itself, not affecting the acceptance and not preventing the agreement being enforceable. These niceties of distinction do not require to be considered in the present case which is fairly simple on its facts.

A large number of cases were cited on behalf of the Respondents, but unfortunately without any attempt to indicate specifically their particular bearing on the facts of the present case. They started with Chinnock v. The Marchioness of Ely, (2) (4DE G.T. & S. 638 : 46 ER. 1066), which was actually decided on the ground that the solicitors for the Marchioness had no authority to make any offer as to the sale of a house, except as subject to certain special conditions, but where in construing the letter containing the offer and holding that the approval of the draft contract referred to therein was a term of the assent, Lord Westbury made the following observation : "But if to a proposal or offer an assent is given, subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent and there is no agreement independent of that stipulation." Similarly, it has been held in numerous subsequent cases that there is no completed contract where the acceptance is "subject to contract" or "subject to approval of terms of contract." Perhaps what the Respondents wanted to argue was that, in the present case, the offer was subject to the purchaser accepting the conditions of sale or, to put it in another way, the sellers agreed to accept the offer of the purchaser on condition that, upon seeing the conditions of sale, he would agree to abide by them, but since the Appellants did not so agree and indeed proposed other conditions, the conditional agreement never became final. This argument would seem to ignore the fact that all the material terms contained in the conditions of sale were specifically mentioned during the discussions and the Appellants made their new and increased offer after they had been mentioned. The case next cited was Bristol, Cardiff, and Swansea Aerated Bread Company v. Maggs, (3) [(1890) 44 Ch. D. 616]. There, after letters of offer and acceptance had been exchanged, the buyers added a new and important clause in the formal memorandum of agreement sent to them by the seller, whereupon some correspondence followed and ultimately the buyer withdrew the offer. In an action by the buyers for specific performance, it was held by Kay, J., that although the two letters, first exchanged, would by themselves be sufficient evidence of a complete agreement, yet the correspondence was to be read as a whole and since the negotiation for an additional term subsequently opened by the buyers showed that they themselves regarded the two letters as containing only an incomplete bargain, there was no completed contract which they could specifically enforce. The argument which the Respondents wanted to advance on the basis of this case perhaps was that the Appellants'' own action in incorporating in the draft agreement certain new terms, as also certain terms opposed to the conditions of sale, indicated that there had been no completed agreement when their offer was made and accepted. I must point out, however, that in so far as it was held in the case cited that an incomplete agreement could be inferred from subsequent negotiations, commenced on new points, after a contract complete in itself had been signed, it was dissented from by North, J., in Bellamy v. Debenham, (4) (45 Ch. D. 481), and the dissent was approved of by the Court of Appeal in Perry v. Suffields Ltd., (5) [(1916) 2 Ch. 187] which the Appellants cited. The Court of Appeal held that once a definite offer had been made and accepted without qualification and it appeared that the agreement covered all the points under negotiation at the date of the acceptance, the complete contract, then arrived at, could not be affected by subsequent negotiation. It is interesting to note that Bellamy v. Debenham (4) had itself been taken to the Court of Appeal, See., (1891) 1 Ch. 412 and was heard by a Bench which included Kay, L.J., the learned Judge having by then become a Lord Justice, but the appeal was disposed of on another point without reference to North, J.''s criticism of the decision in Bristol, Cardiff and Swansea Aerated. Bread Co., v. Maggs. (3). But the latter case was expressly and unanimously dissented from in Perry v. Suffields Ltd., (5) Cozens-Hardy, M.R.. making certain strong observations. Both the cases, however, continue to be cited in the text-books side by side, presumably in the view that subsequent correspondence may in a case show that there had really been no agreement on certain of the terms negotiated or that certain material terms had not received consideration at all so that there was no completed contract and that, to that extent, Bristol Cardiff and Swansea Aerated Bread, Co., v. Maggs, (3) survives. The Respondents also relied on British Electrical Associated Industries (Cardiff) Ltd., v. Patley Pressings, Ltd., (6) (1953) 1 All ER, 94], where a contract of sale, ''subject to force majeure conditions," was held to be incapable of any precise meaning and therefore not enforceable, because there were a variety of force majeure conditions extant in the trade. The use which the Respondents wished to make of this case was perhaps to contend that an offer and acceptance. subject to the conditions of sale, could not constitute a definite contract, in as much as conditions of sale varied from case to case. It may, however, be said that since certain conditions of sale actually existed, when the sellers said that the purchaser would have to abide by the conditions of sale and thereafter the buyers made their increased offer, they agreed to abide by the conditions of sale, whatever those conditions were and the conditions would be the conditions actually drawn up and existing and not any other conditions. Another case relied on by the Respondents was Baijnath Vs. Kshetrahari Sarkar and Others, , where it was held by Renupada Mukherjee, J., Mookerjee, J., concurring, that when a prospective lessee demanded title deeds from the prospective lessor for his investigation and approval, it could not be said that there had been a final and concluded agreement between them, although most of the other material terms might have been agreed upon and that since in such a case the lessee was free to back out if he was not satisfied about the lessor''s title and thus one party was left free to back out of the contract at his choice, it could not be said that any-binding contract had been arrived at. I do not see the application of that decision to the present case, because the express stipulation was that the original title deeds were not to be asked for. But with regard to the decision itself, I venture to think, with great respect, that it goes against established principles. An agreement to buy or take on a lease, subject to approval of the vendor''s or the lessor''s title, is not an agreement, restricted by a condition which prevents its being a final agreement or prevents its being enforceable, Gordon v. Mahony (8) (13 1 Eq. R., 383); Chatterley v. Nicholls (9) [(1884) 1 T.L.R., 14, CA)], though the condition ''subject to our solicitors'' approval of the title'' would have that effect, except where the disapproval is malafide, Hussey v. Home-Payne (10) [(1878) 8 Ch. D. 670 : CA : on appeal (1879) 4 AC 311]; Hudson v. Beck (11) [(1877) 7 Ch. D. 683]; Curtis Moffat Ltd., v. Wheeler (12) (1929) 2 Ch. 224]; Caney v. Leith, (13) (1937) 2 All. ER. 532]. The reason for the distinction is that, in the first case, the condition merely expressed what the law would have otherwise implied, whereas, in the second case, it creates a new term by importing an additional obligation to satisfy the solicitors. Another reason is that a condition limited to making out a good title which is an obligation under the law is not really a condition of the acceptance of the offer but it is a term of the main contract itself, i.e., the contract of sale or lease, but a condition that somebody else must approve of the title is something additional to what the law requires and therefore a term of the bargain. It is not correct to say that where there is a condition as to approval of title, without more, the acceptor is free to retract at his caprice. Even in the case of a condition as to approval of title by solicitors, Lord Cairns was inclined to think in the case of Hussey v. Horne-Payne (6) that there was a concluded agreement, but although that view has not been generally accepted, it has been uniformly held that if the disapproval of the solicitors is malafide and without reasonable cause, the Court will regard the condition as fulfilled and enforce the contract. The decision in Baijnath v. Kshetrahari Sarkar (7) is thus of no assistance to the Respondents. The last citations by them were of the decision in Torrance v. Bolton (14) [(1872-73) 8 Chancery Appeal Cases, 118] and a passage in Dart''s Vendor and Purchaser, 7th Edition, Vol. I, p. 120. I am unable to see the relevancy of either citation. Both deal with the case where at the time of an auction sale, the auctioneer makes some variation of the published particulars of the property and a question arises as to the enforceability of the contract of sale against a purchaser according as he did not hear and understand the variation. There was no variation of the terms by the sellers in the present case.

On behalf of the Appellants, reference was made to the decisions of the Privy Council in Harichand Mancharam v. Govind Luxman Gokhale, (15) (L.R. 50 I.A. 25) and Shankarlal Narayandas Mundaff v. New Mofussil Company Ltd., (16) (L.R, 73 I.A. 98). Those decisions do not seem to be of any assistance. They deal with the case where the parties discuss and agree to the terms and also agree that a formal document shall be executed and then a question as to whether the parties made the operation of the contract conditional on the execution of the document or they came to a final agreement and merely intended that it should be put into a formal documentary shape. In both the cases it was held that a binding contract had been entered into without and apart from any formal document and that the stipulation as to the preparation of a formal contract was not a part of the terms of the contract, affecting either its validity or its enforceability. There was no contention in the present case that the preparation of a formal deed of sale was one of the terms on which the operation or completion of the contract for sale depended.

I have referred to the cases at some length out of deference to the argument addressed from the Bar, but the present case can, in my view, be decided on a narrow point. The first question is as to what the proposal on the part of the sellers-I shall call it a proposal in order to distinguish it from the offers of a price made by the buyers-meant. There is nothing to show that when the offers were sent in to the Commissioner of Partition, they were sent in response to any proposal, comprising all the terms and conditions. The terms were stated at the meeting. Of the three parties who had sent in offers, Sushil Kumar Mukherjee may be left out of account, because his offer was rejected at the very beginning before the terms and conditions of sale were even stated. Of the remaining two. Satcowri Sett was not present. When therefore it was said that the offer of either of the two might be accepted, provided they would not insist on vacant possession, would not ask for production of the original title deeds and would abide by the conditions of sale, it could only have been meant that one of the offers might be accepted if the offerer, on being informed of the conditions, adhered to his offer after having given them his consideration, The proposed acceptance was therefore conditional on the offerer agreeing to accept the terms and conditions after they had been made known to him. Satcowri Sett, at least, could not have agreed on the spot after hearing the terms and conditions then stated because he was not present. Since the proposal was meant for him as well, it cannot be said that what was meant was that a proposal covering all the terms and conditions was then being made to the buyers and that what happened was that the buyers, after being apprised of the terms and conditions, made the offers, one of which was accepted and that therefore there was a final and binding contract with the person making that offer. If, however, it be said that we are concerned only with the Appellants who were actually present through a solicitor and the offer made by them which was accepted was a new offer of a higher price, made after the terms and conditions had been stated to them, even then it is doubtful whether the conditions of sale were intended to be fully conveyed by what was said and whether it was not rather intended that the buyers would procure a copy of the conditions of sale and examine them before they finalised the offer and made it possible for the buyers to accept it. The words "the intending purchasers may have a copy of the conditions of sale on request to Mr. R. M. Kar. solicitor, before the agreement of sale is entered into" would seem to suggest that before the purchasers gave their final assent, they would have an opportunity for considering the conditions and that, on the one hand, their assent would depend on the conditions being acceptable to them and, on the other hand, acceptance of their offer would depend on their acceptance of the conditions. If an offer was made after the stipulation as to the conditions of sale had been thus stated, there was obviously no concluded contract even when the offer was accepted, because offer and acceptance were both tentative. But it must be remembered that the essential conditions of sale were all stated at the meeting and I shall assume that what the sellers meant was that the buyers might take a copy of the conditions of sale for drafting purposes, in order to be able to refer to it when the draft agreement was drawn up, though the expression "before the agreement of sale was entered into" would hardly warrant that meaning. Even then, it has to be seen how the Appellants themselves viewed the transaction and whether between them and the sellers there was a consensus ad idem. It must not be forgotten that it is the Appellants who are seeking to hold the sellers to the contract and that they can do only if there was a final and unqualified agreement as to all the material terms. They, however, themselves say in paragraph 10 of the affidavit that it was absolutely incorrect that the conditions of sale by public auction were conditions of the sale in their favour and that the fact was that there having been no such conditions, their solicitor sent a draft agreement "in the usual form". According to them, therefore, they understood that the conditions of sale would be the usual conditions and the usual conditions included, as the draft agreement sent by them would show, the condition that vacant possession must be arranged for before the sale was completed and they did not include a condition that the original title deeds must not be asked for. If, on their own showing, their offer was made on the basis of such conditions as they incorporated in the draft agreement, there can be no clearer proof that there was no agreement of mind between them and the sellers regarding the conditions of sale and consequently there was no contract at all. This is not a case where the clear terms of a concluded contract are being sought to be affected by what the parties subsequently said or did to each other. It is a case where a party seeking to hold another to what he says is a concluded contract, and trying to enforce it through the Court, is himself saying to the Court what his understanding of the terms was at the time of the negotiation and is thereby showing conclusively that no contract ever came into existence. If it had been the Commissioner or the parties who were trying to hold the Appellants to the contract and the Appellants sought to rely on the draft agreement drawn up by them or the statement in Paragraph 10 of their affidavit it might be said that subsequent statements made by the Appellants could not affect a contract already concluded. But here it is the Appellants who, while insisting on the contract, are themselves saying that they never accepted the conditions of sale. They are thus themselves saying in effect that there was no contract. The further statements made in the affidavit of the Appellants that they are agreeable to accepting the alterations made in the draft agreement by the plaintiff''s solicitor cannot be of any avail to them, because the alterations only reduced the terms contained in the agreement to the conditions of sale laid down by the sellers and if, as the Appellants insist, they did not understand any such conditions to be attached to the sale and did not accept any such conditions when they made their offer, no contract came into existence then and their present acceptance can only make a new contract, if the acceptance is accepted by the sellers. In my opinion, it is perfectly clear from the Appellant''s own case that there was no concluded contract with them when their offer was accepted and that none can be created by their offer to accept the conditions, made after the matter has been brought up before the Court.

I am, however, unable to agree with the learned trial Judge in regard to the second reason given by him in support of his order; He has held that the agreement for sale was also not concluded, because no earnest money had been paid, as required by Rule 10 of Chapter XXVII of the Rules of the Original Side. A further observation made by him is that unless the earnest money was paid, which was one of the conditions of sale under Rule 10, no sale could be taken to have been completed. With respect, it appears to me that these remarks overlook the distinction between a contract for sale and a contract of sale. There is no dispute that Chapter XXVII of the Original Side Rules applies to a sale by a Commissioner of Partition under an order or a direction of the Court, although, in terms, it applies only to sales by Registrar. But the payment of earnest money enjoined by Rule 10 is a term of the sale itself rather than a condition of the agreement or bargain. Leaving that distinction aside, the application of Rule 10 to the facts of the present case is twice restricted. In the first place, by virtue of Rule 63 of the Chapter, a sale by private treaty is to be regulated by Rule 10 only so far as it may be applicable. In the case of such a sale, there can be no question of putting up the property immediately again for sale, if the earnest money is not forthwith deposited with the Registrar. The consequence of a failure to deposit the earnest money which makes the deposit a mandatory condition in the case of a sale by public auction, cannot be enforced in the case of a sale by private treaty and therefore in the case of such a sale, a deposit of the earnest money can hardly be said to be a mandatory condition. In the second place, the condition is to operate only "unless otherwise directed or agreed to by the parties." In the present case, the Commissioner did give a direction as to the quantum of the earnest money, reducing it from'' the 25 per cent of the Rule to Rs. 2001. He obviously did not think that the sale was taking place when he was accepting the Appellants'' offer, because he did not call for an immediate payment of the earnest money which has to be paid under Rule 10 "at the time of the sale." The sale would take place on a subsequent date and it was only when it did take place that the earnest money would have to be paid. We were informed that in the case of sales by private treaty, the practice was to deposit the earnest money at the time of the execution of the agreement. In the present case, that stage never arrived and therefore no default in regard to the payment of the earnest money could be said to have occurred. In my opinion, while it is correct to say that there was no concluded agreement with the Appellants it is not correct or relevant to say that there was no completed sale to them because of their failure to pay the earnest money or that the agreement with them did not become binding, because the earnest money was not paid.

21 Although the Court has a supervisory jurisdiction over proceedings held by a Commissioner of Partition for the sale of a property in pursuance of directions contained in a decree, it will certainly not be proper to direct him to withdraw from a sale on any grounds which would not be open to a private seller or direct him not to complete a sale after the acceptance of an offer, simply because before the completion of the formalities, another purchaser had appeared with a better offer. In the present case, however, the Appellants, on their own showing, never intended to purchase the property on the conditions on which it was actually offered for sale and in spite of the clear indication given of those conditions at the meeting of the 12th. They say that they made their offer on a different basis altogether. The Commissioner or the owners have therefore no obligation to them, contractual or otherwise, and no illegality or impropriety is involved in directing the Commissioner to disregard their offer and negotiate with a party who is willing to pay a better price, with liberty to the Appellants to compete with him, if they so desire. That is the direction which the learned Judge has given. For the reasons given above, this appeal is dismissed with costs and the order of the learned trial Judge is affirmed.

Lahiri, J.

I agree.