Plaintiff, whose suit was dismissed by the trial court and which was confirmed in appeal, has approached this Court under Section 100 of the Code of Civil Procedure. 2. The facts absolutely relevant for the purpose of disposal of this appeal are as follows:
The suit was initially one for injunction, subsequently amended one for declaration of title and recovery of possession on the strength of title. The claim of the plaintiff was based on Ext.A2, a codicil, wherein according to the plaintiff, a pre-emption right was granted in his favour. It was with respect to the western half of the property made mention of in the codicil. Pointing out that the eastern half was sold and since he expected the other half also would be sold, he sought to enforce the pre-emption right.
3. Defendants resisted the suit on several grounds. It is also stated in the written statement that if the plaintiff is ready and willing to pay the market price, the defendants are ready to assign the property to the plaintiff.
4. On the basis of the above pleadings, issues were raised and parties went to trial. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants adduced no evidence. Trial court found that none of the claims raised by the plaintiff is sustainable and dismissed the suit.
5. The plaintiff went up in appeal. At the appellate stage, an I.A. was filed, whereby the plaintiff expressed willingness to pay the market price as available as on the date of filing of the petition. He equated the market price to the price at which the eastern half had been sold. The lower Appellate Court, on an evaluation of the materials before it, dismissed the appeal confirming the decree of the trial court. That brings the plaintiff before this Court.
6. At the time of admission, the following substantial questions of law were formulated:
1. Whether the Court below is right in not having found that there was a valid agreement for purchase of the western moiety of the suit property at the market rate, in view of the unqualified offer of the defendants that they are ready to sell the property at the market rate, which was fully accepted by the plaintiff and agreed to purchase the property at the market price, which is certain and substantiated by Ext.A4 sale deed for equal extent of the eastern moiety covered by the same Will and Codicil, or, at any rate, by the market price as fixed by the Court in a due enquiry?
2. Have not the Courts below miserably failed to consider the significance of Section 29 of the Contract Act, which stipulates that “Agreements, the meaning of which is not certain, or capable of being made certain, are void” read with Illustration (e) to the Section which states that “A agrees to sell B 1,000 maunds of rice at a price to be fixed by C” As the price is capable of being made certain, there is no uncertainty here to make the agreement void, make the disputed agreement for specific performance enforceable?
7. Sri. S. James Vincent, the learned counsel appearing for the appellant raised only one point for consideration. It was contended on behalf of the plaintiff that by virtue of Section 29 of the Contract Act and also read along with Order XII Rule 6 of CPC, the lower Appellate Court was not justified in dismissing the appeal. Elaborating on these aspects, it was pointed out by the learned counsel that the lower appellate court was not justified in not applying Section 29 inasmuch as the price that the plaintiff was willing to pay for the western half of the property which is the subject matter of the pre- emption right as per Ext.A2 codicil, was the the market price ie; the price for which the eastern half had been sold. Even assuming, that could not be adopted as the price, the learned counsel went on to point out that the court could have specified the market value or could have directed the same to be ascertained during the execution and a decree ought to have been granted. In support of his contention, the learned counsel placed reliance on the decision reported in Nair Service Society v. R.M. Palat @ K.P. Ravunni Menon [1966 KLT 644]. As regards the application of Order XII Rule 6 CPC is concerned, the learned counsel for the appellant relied on the decision reported in Uttam Singh Dugal and Co. Ltd.
v. Union Bank of India and Others [2000 S.C. 2740]. For the proposition that the court below should have, at any rate, directed the parties to execute the sale deed at a reasonable price, learned counsel relied on the decision reported in Talbot v. Talbot [(1967)2All E.R.920].
8. It is accordingly contended that a decree ought to have followed in favour of the plaintiff directing him to pay the price for which the eastern half was sold or at any rate, directing in the decree to ascertain the market price during the execution stage and pay the same as price for the western half which was the subject matter of pre-emption right as per in Ext.A2 codicil.
9. The learned counsel appearing for the respondent contended that none of the contention raised by the appellant is sustainable. According to learned counsel, the statement in the written statement that the defendants are willing to sell the property at the market price does not amount to an offer at all. It at best is a proposal and the proposition mooted by the plaintiff that he is willing to purchase the property at the market price is at best a counter offer. There is no concluded contract which could be enforced at all.
10. At any rate, according to learned counsel, the suit as it now formulated cannot lie. If this Court comes to the conclusion that as plaintiff had expressed his willingness to pay the price for which the defendant had sold the eastern half suit as framed would not lie as it ought to have been one for specific performance.
11. After having heard the learned counsel for the appellant and the learned counsel for the respondents, this court finds considerable force in the submission made by the learned counsel for the respondents. First of all, the pre-emption right as is known in India is available only after the execution of the sale deed in respect of that property. Initially the suit was one for declaration and injunction, seeking to enforce the right of pre-emption as contained in the codicil. As is already observed, the law in India is very clear in this respect. The right of pre-emption, though could be enforced, will be available only after the sale is effected in respect of the property for which pre-emption right is claimed. As far as the right of pre-emption is concerned, the suit is a premature one.
12. Even assuming that the principle laid down in the decision reported in Nair Service Society v. R.M. Palat @ K.P. Ravunni Menon [1966 KLT 644] could be applied, the question arises whether relief can be granted to the appellant. True, there is a statement in the written statement filed by the defendants to the effect that if the plaintiff is willing to pay the market price, he is ready to assign the property to the plaintiff. As rightly pointed out by the learned counsel for the respondents, it cannot be termed as an admission as to readiness and willingness on the part of the defendant to assign the property at the market price. First of all, there is no concluded contract as such, which could be enforced. Even if it is assumed that a reasonable price could have been ascertained, that at best could be only as a counter offer and cannot be treated as price agreed upon.
13. Even assuming that a reasonable price could be ascertained in execution, still the question arises whether the suit as framed will lie. Even borrowing the principle available in the decision reported in Uttam Singh Dugal and Co. Ltd.
v. Union Bank of India and Others [2000 SC 2740], the issue considered was that if there is an admission whether that can be enforced. Question arose whether the suit for recovery of possession and declaration of title will lie. It is seen that during the arguments, an attempt was made to amend the suit to one for specific performance but that was declined by the courts.
14. The suit as it now stands is one for declaration of title and recovery of possession. The prayer was that a reasonable price be fixed and the plaintiff may be allowed to exercise the pre-emption right as contained in the codicil. As already noticed, such a prayer cannot be accepted in the light of the fact that a pre-emption right can be enforced only after the sale and not before that.
15. The decision reported in Talbot v. Talbot [(1967)2 All E.R.920] can also be of no help to the plaintiff. The law in England regarding pre-emption stands on a different footing than the law of pre-emption in India as is now well settled by several decisions. Viewed from that angle, it has already been observed that the suit is a premature one.
16. The other argument is since the written statement states that the defendant is willing to sell his property at market price and the plaintiff having accepted the same there as a concluded contract is also the same is also without basis.
17. It is extremely doubtful if there is a concluded contract on the basis of above allegations. The terms in the so called contract are uncertain. Further, if the suit is one to be treated as one for enforcement of a contract, the present suit is clearly misconceived.
18. Thus viewed from any angle the suit has to fail.
Both the courts were justified in law in dismissing the suit.
19. For the above reasons, this Court finds that there is no merit in this appeal and the appeal is only to be dismissed.
This appeal is accordingly dismissed. There will be no order as to costs.
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P. BHAVADASAN, JUDGE sd // TRUE COPY // P.A. TO JUDGE