M.V. SHANKAR BHAI AND ANR. versus CLAUDE PINTO (SINCE DECEASED) BY LRS. AND ORS.

Citation: [2003] 1 S.C.R. 1212 · Decided: 14-02-2003 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
M.V. SHANKAR BHAI AND ANR. 
v. 
CLAUDE PINTO (SINCE DECEASED) BY LRS. AND ORS. 
FEBRUARY 14, 2003 
(S.B. SINHA AND DR. AR. LAKSHMANAN, JJ] 
Specific Pe1for111ance Act, 1963-Section 20-0wner of property 
executing Will and appointing son as executor to sell property and distribute 
C proceeds between legatees-legatees also given option to partition the 
property-Executor entering into sale agreement with tenant of the property--
Sale agreement. containing restrictive covenant that properties subject to 
ratification by co-heirs-Executor not executing sale deed in terms of 
agreement-Suit for specific performance of contract-Suit decreed-High 
Court setting aside the order-On appeal held intention of parties was not 
D that executor would alienate property as executor of his mother's Will-Also 
as agreement containing restrictive covenant is not a concluded contract such 
agreement not enforceable in court of law-Thus the question whether the 
absolute right to dispose the property as an executor of Will or not is of no 
significance-Hence, not a flt case to exercise discretion and order specific 
E performance. 
Owner of the property in question executed a Will and appointed 
defendant No.I as the executor and directed him to sell the property for 
the best price and distribute the proceeds between the legatees and the 
legatees could also seek partition of the property. Owner expired and the 
F executor obtained the probate. The appellant-tenant of the property in 
question offered to purchase the property. Appellant who was a practicing 
advocate drafted agreement for sale and defendant No I made corrections 
in the same. He also advised defendant No I to obtain power of attorney 
from other legatees. Parties entered into sale agreement which was subject 
to ratification by the co-heirs. Defendant No I did not execute sale deed 
G in terms of sale agreement. Appellants filed suit for specific performance 
of contract. Trial Court decreed the suit. Aggrieved, defendant No I filed 
an appeal. However, High Court set aside the judgment of the trial Court. 
Hence the present appeal. 
H 
Appellants contended that the High Court erred in construing the 
1212 
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M.V. SHANKAR BHAI i·. CLAUDE PINTO 
1213 
Will to the effect that the right of the legatees to ask for partition shall A 
+ 
prevail over the right of the executor to sell the property; that under 
Sections 211(1) and 307(1) of the Indian Succession Act, 1925, the executor 
has an absolute right to dispose of the property of the testator and in that 
view of matter the question of the legatees exercising their right of 
partition in preference of the executor's right to sell the prnperty which B 
would otherwise be in consonance of the aforementioned provisions of the 
). 
Indian Succession Act, did not arise; that the expression used in the 
agreement to sell "subject to ratification by the co-heirs" must be held to 
have been inserted for the benefit of appellant and as such he was at liberty 
to waive his right; and that the High Court erred in holding that it is not 
fair and equitable to pass a decree for specific performance of contract. C 
Respondents contended that the parties to the agreement proceeded 
on the basis that the deed of sale was to be executed by the legatees and 
not by the original defendant in his capacity as executor; that it is one 
thing to say that in terms of Sections 211and307 of the Indian Succession 
Act, a right of the executor of the Will to alienate the property of the D 
testator is absolute but in the instant case, the original defendant did not 
-exercise his right as an executor but only as one of the legatees; that having 
regard to the fact that in the agreement of sale a stipulation was specifically 
inserted at his instance that the same was 'subject to ratification by other 
co-heirs', no concluded contract was arrived at and thus the suit for E 
specific performance was not maintainable; and that the materials brought 
on record by the parties would clearly demonstrate that the ;aid restriction 
was inserted not for the benefit of the appellant at all. 
Dismissing the appeal, the Court 
HELD I. I. A bare perusal of the Will leaves no manner of doubt 
that although the original defendant was given liberty to sell the property 
in question and distribute the amount received thereby in the manner 
stated therein but the legatees have also been given an option to partition 
the property. Once such a desire is express

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