Full Judgment Text
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PETITIONER:
BRIJ MOHAN AND ORS.
Vs.
RESPONDENT:
SMT. SUGRA BEGUM AND ORS.
DATE OF JUDGMENT19/07/1990
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
SHARMA, L.M. (J)
CITATION:
1990 SCR (3) 413 1990 SCC (4) 147
JT 1990 (3) 255 1990 SCALE (2)125
ACT:
Specific Relief Act --Specific performance of contract
of sale of immovable property on basis of oral agreement
alone--Heavy burden lies on plaintiff to prove consensus ad-
idem.
Transfer of Property Act--Section 55--Provision not
applicable where parties consciously negotiated but failed
in respect of any term or condition resulting in agreement
not being concluded.
HEADNOTE:
The appellants-plaintiffs are’ four brothers. They filed
a suit against defendant No. 1, Smt. Mahboobunnisa. Begum,
(Since deceased and represented by legal heirs) for specific
performance of oral contract of sale of a building in Hyd-
erabad- The property was later sold by defendant No.1 to
defendants Nos. 3 and 4.
The plaintiffs’ case was that plaintiffs Nos. 1 and 2,
on behalf of themselves and their younger brothers, plain-
tiffs Nos. 3 and 4, had preliminary negotiations for the
purchase of the suit property through Shri Arif Ali, advo-
cate; that eventually on 3rd May, 1979 they met Arif Ali and
offered to pay Rs. 10,00,000, which was the price demanded
by the owner; that Arif Ali, after getting the confirmation
of the said offer from the first defendant on phone, said
that the plaintiffs should meet the first defendant on 6th
May, 1979 and that she would in the meanwhile purchase the
stamp papers for making the formal agreement of sale incor-
porating the oral agreement arrived at on 3rd May, 1979;
that on 6th May, 1979 the plaintiffs met the first defendant
in the presence of Arif Ali and other, wherein the amount of
earnest money to be paid, time for registration of the sale
deed etc. were decided; that at that meeting Shri Arif Ali,
prepared first and the final drafts of the receipt in his
own handwriting and handed over these drafts to the first
plaintiff to get the final draft typed and duly stamped;
that Arif Ali also delivered the stamp papers to the first
plaintiff for typing the formal agreement of sale; that at
the meeting held on 6th May, 1979 the plaintiffs Nos. 1 and
2 were also permitted to proceed with the publication of the
notices in the newspapers; that after the public notice was
published, the first defendant got a reply notice published
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and got
414
issued a legal notice dated 8.5.79 through her advocate,
alleging that there was no agreement for sale; that thereaf-
ter, the first and second plaintiffs made sincere and re-
peated attempts to convince the first defendant that there
was in existence a concluded contract for sale of the suit
property, and that the execution of the agreement of sale
was a mere formality. On these allegations, the plaintiffs
sought the relief of specific performance of the agreement.
The first defendant in her written statement stated that
certain negotiations had taken place between her and plain-
tiffs Nos. 1 and 2, but the negotiations had failed. It was
further stated that there was no concluded or enforceable
contract between the parties; that no price was settled or
agreed upon and even the condition for advance payment and
other terms and conditions were not agreed upon; that no
final receipt or document had been prepared; and that the
first defendant never asked for the purchase of stamp pa-
pers.
The Trial Court found that on the facts and circum-
stances of the case, it was established that the plaintiffs
had entered into an oral contract of sale with the first
defendant on 3.5.79. The Trial Court accordingly decreed the
plaintiffs’ suit for specific performance.
Two separate appeals were filed in the High Court. A
Division Bench of the High Court allowed the appeals and set
aside the decree passed by the trial court. The High Court
held that in order to determine the binding nature of a
contract between the parties, the mere acceptance of sale
price was not sufficient. The High Court further observed
that in the absence of evidence that the other terms also
were discussed over the phone and settled on 3.5.79, it
could cot be said that there was a concluded contract on 3rd
May, 1979, and that it was obviously for that reason that a
further meeting was fixed at the house of the 1st defendant
on 6th May, 1979.The High Court did not agree with the
contention of the plaintiffs that all the terms of contract,
including the stipulation with regard to the payment of
advance amount and the vendor’s responsibility to obtain the
permission from the Urban Land Ceiling Authority, had been
settled by 3.5.79 and what was left to be done on 6.5.1979
was merely to incorporate the terms already arrived at into
a formal document on stamp paper.
Before this Court lit was contended on behalf of the
appellants that an agreement for sale of immovable property
could be made orally; that in the facts and circumstances of
the case all the fundamental and vital terms of the contract
were settled and concluded on 3.5.1979 itself and
415
even if the other details like mode of payment of considera-
tion, obtaining of no objection certificate from Land Ceil-
ing Authorities etc. remained unsealed, the same could be
settled subsequently or determined in accordance with sec.
55 of the Transfer of Property Act; that the only vital
terms for a valid agreement of sale of an immovable property
were the identity of the property and the price; that both
these vital terms were settled and concluded on 3.5.79; and
that the act of purchasing stamps on 3.5.79 by defendant No.
1 and the draft receipts, prepared by Shri Arif Ali, clearly
lent support to the case of the plaintiffs.
Kollipara Sriramulu v. T. Aswathanarayana & Ors., [1968]
3 SCR 387 and Nathulal v. Phoolchand, [1970] 2 SCR 854,
relied upon.
On the other hand, it was contended on behalf of the
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respondents that no vital or fundamental terms of the con-
tract were discussed, agreed or settled on 3.5.79; that
neither any earnest/advance money to be paid was settled,
nor, any time for the payment of such money or time for
execution of agreement of sale or final sale deed and its
registration, was settled; that even if time may not be an
essence of a term of contract for sale of immovable proper-
ty, it was a vital term without which no concluded contract
could be arrived at; that any agreement in the third week of
April, 1979 to the effect that defendant No. 1 would bring
the no objection certificate from the Urban Land Ceiling
Authorities was found not proved by the High Court and as
such there was no question of applying the principles con-
tained in section 55 of the Transfer of Property Act; that a
no objection certificate was necessary to be obtained from
Urban Land Ceiling Authorities and the defendant No. 1 and
her husband being old persons had clearly taken the stand
that they would not bring such certificate; and that there-
fore no final and concluded contract took place on any date.
Dismissing the appeals, this Court,
HELD: (1) There is no requirement of law that an agree-
ment or contract of sale of immovable property should only
be in writing. However, in a case where the plaintiffs come
forward to seek a decree for specific performance of con-
tract of sale of immovable property on the basis of an oral
agreement along, heavy burden lies on the plaintiffs to
prove that there was consensus ad-idem between the parties
for a concluded oral agreement for sale of immovable proper-
ty. Whether there was such a concluded oral contract or not
would be a question of fact to be determined in the facts
and circumstances of each individual case. It
416
has to be established by the plaintiffs that vital and
fundamental terms for sale of immovable property were con-
cluded between the parties orally and a written agreement if
any to be executed subsequently would only be a formal
agreement incorporating such terms which had already been
settled and concluded in the oral agreement. [429B-D]
(2)From a perusal of the evidence it would be abun-
dantly clear that nothing was settled on 3.5.79 except the
fact that the plaintiffs had conveyed their offer to pur-
chase the suit property for Rs. 10,00,000 and Shri Arif Ali,
after speaking to defendant No. 1 on phone conveyed that she
was willing to sell the property for Rs. 10,00,000. [431B]
(3) No averment was made in the plaint that defendant
No. 1 had agreed to obtain the permission from the Urban
Land Ceiling Authority in the meeting held in the third week
of April, 1979. The High Court was right in concluding that
it was unbelievable that in the third week of April, 1979
when still there was a wide gap of Rs.2,00,000 in the price
payable for the suit building, the parties would have stipu-
lated about the condition as to who should obtain the per-
mission under the Urban Land Ceiling Act. [431C-F]
(4) The High Court rightly believed the contention of
defendant No. 1 that the agreement fell through because the
plaintiffs insisted that defendant No. 1 should obtain the
permission from the Urban Land Ceiling Authority while
defendant No. 1 did not agree for the same. [432C]
(5) The general principles contained in section 55 of
the Transfer of Property Act regarding rights and liabili-
ties of buyer and seller can only apply in the absence of a
contract to the contrary and not in a case where the parties
consciously negotiated but failed in respect of any term or
condition, as a result of which the agreement itself could
not be settled or concluded. [432E]
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(6) Once it is held/established in the present case that
no agreement was finally concluded or settled on 6.5.79 and
negotiations failed, as before this date it was never set-
tled that defendant No. 1 would bring the no objection
certificate from Urban Land Ceiling Authority, there was no
question of applying general principles contained in section
55 of the Transfer of Property Act. [432F]
Kollipara Sriramulu v. T. Aswathanarayana & Ors., [1968]
3 SCR 387, distinguished.
417
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1893 and
1894 of 1989.
From the Judgment and Order dated 24.9. 1987 of the
Andhra Pradesh High Court in C.C.C.A. No. 152 of 1984 and
C.C.C.A. No. 150 of 1984.
K. Parasaran, Shanti Bhushan, A.D.N. Rao and A. Subba
Rao for the Appellants.
M.C. Bhandare, K. Madhava Reddy, Subodh Markandeya, Mrs.
Chitra Markandeya, W.A. Nomani, G.S. Giri Rao, A.K. Raina
and D. Prakash Reddy for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. The Plaintiffs by Special Leave have filed
these appeals against the Judgment of Andhra Pradesh High
Court, Hyderabad, dated 24th September, 1987.
The four plaintiffs who are brothers filed the present
suit on 17th July, 1979 for specific performance of oral
contract for sale of a building known as "Roshan Manzil"
located in an area of 4165 .sq. yards in Saifabad, Hydera-
bad. M/s. Gopi Hotel was the tenant in the premises. Accord-
ing to the case as set up in the plaint the first plaintiff
Brij Mohan learnt some time in the first week of April, 1979
that the defendant No. 1 Smt. Mahboobunnisa Begum (since
deceased) was contemplating the sale of the property in
question and that Shri Arif Ali, her Advocate and income tax
practitioner was assisting her in finding a purchaser. Shri
Arif Ali had mentioned the above intention of the first
defendant to Sh. Ibrahim Moosa of M/s. J. Moosa & Company
who was known to the first plaintiff. On learning from Shri
Ibrahim Moosa the first and second plaintiffs, namely, Brij
Mohan and Jagmohan along with Sh. Ibrahim met Sh. Arif Ali.
Sh. Arif Ali gave the details of the property and also
showed the plans of the property to them. Sh. Arif Ali
stated that the defendant was expecting the price of Rs.
10,00,000. The plaintiffs Nos. 1 and 2 offered Rs.7,00,000.
Shri Arif stated that he will ascertain from the defendant
her reaction to the said offer. A fortnight later i.e. in
the third week of April, 1979 the plaintiffs Nos. 1 and 2
along with Sh. Ibrahim Moosa and Sh. Arif Ali went to the
residence of the defendant, who was insisting on the payment
of Rs. 10,00,000 as the sale price. At the said meeting the
husband of the defendant was also present. The plaintiffs
Nos. 1 and 2
418
increased their price from Rs.7,00,000 to Rs.8,00,000. The
first defendant said that she would think over and inform
the plaintiffs Nos. 1 and 2 through Sh. Arif Ali. On 3rd
May, 1979 the plaintiffs Nos. 1 and 2 along with Shri Ibra-
him Moosa met Sh. Arif Ali. Arif Ali stated that the defend-
ant was agreeable to sell the property to plaintiffs only
for Rs. 10,00,000 and not a pie less. Thereupon the plain-
tiffs agreed to pay Rs. 10,00,000 as the sale price. Shri
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Arif Ali after getting the confirmation of acceptence of the
said offer of the plaintiffs Nos. 1 and 2 from the first
defendant said that the plaintiffs Nos. 1 and 2 should meet
the defendants on 6th May, 1979 and that she would in the
meanwhile purchase the stamp papers for making the formal
agreement for sale incorporating the oral agreement arrived
at.
It was further alleged in the plaint that on 6th May,
1979 the first and second plaintiffs along with Shri Ibrahim
Moosa met the first defendant and her husband in the
presence of the said Sh. Arif Ali. In the said meeting the
amount of earnest money to be paid, time for registration of
the sale deed etc., were decided. The said Shri Arif Ali
prepared in his own handwriting a draft of the receipt
incorporating the terms of the orally concluded agreement
for sale. The draft was scrutinised by the husband of the
first defendant who suggested some alterations. The said
Shri Arif Ali thereupon prepared final draft of the receipt
in his own hand. He handed over the first and the final
draft to the first plaintiff to get the later typed and duly
stamped. He also delivered the stamp papers to the first
plaintiff for being used for typing of the formal agreement
of sale.
It was further stated in the plaint that during the said
meeting held on 6th May, 1979, the plaintiffs Nos. 1 and 2
were permitted to proceed with the publication of the no-
tices in the newspapers. Accordingly, the contents of the
publication were got prepared by them bonafidely anticipat-
ing that the first defendant will execute the receipt after
receiving the stipulated earnest money in the course of the
day, ie. 6.5.79. However, for reasons known to herself the
first defendant deliberately and wantonly evaded meeting the
first and second plaintiffs to receive the advance and
execute the receipt.
It was further stated in the plaint that after the
public notice was published in the newspapers taking advan-
tage of her wanton and deliberate act of evasion, the first
defendant got a reply notice published in the newspaper and
got issued a legal notice dated 8.5.79 through her Advocate,
falsely alleging that there was no agreement for sale.
Thereafter the first and second plaintiff made sincere and
repeated attempts
419
to convince the first defendant that the false and baseless
pleas taken by her were detrimental to the interest of all
concerned and there is inexistence a concluded contract for
sale of the suit property and that the execution of the
agreement of sale was a mere formality as well the receipt
for the advance. Since the first defendant persisted in her
illegal conduct. the plaintiffs got issued a final notice
dated 27th June, 1979 calling upon the first defendant to
execute the agreement, receive the earnest money and issue a
valid receipt within three days of the receipt of the notice
thus giving the first defendant one more opportunity. The
plaintiffs neither received any reply nor the first defend-
ant complied with the demands made in the notice. It was
further alleged in the plaint that the plaintiffs Nos. 1 and
2 had negotiated for the purchase of the property on behalf
of themselves and plaintiffs Nos. 3 and 4 who were their
younger brothers. The concluded contract for sale entered
into with the first defendant was for the benefit of all the
four plaintiffs. Hence all the four plaintiffs had joined in
the filing of the suit.
The second defendant was M/s Gopi Hotel who was the
tenant of the first defendant in the suit premises. The
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plaintiffs further averred that they have been and are ready
and willing to pay to the first defendant the sale consider-
ation of Rs. 10,00,000. The plaintiffs undertake to deposit
the same in the court at any time during the pendency of the
suit or within a time fixed by the Hon’ble Court for the
deposit of the same after passing the decree or at the time
of execution and registration of the sale deed. The plain-
tiffs on the above allegations sought the relief of specific
performance of the agreement of sale in respect of the suit
property after payment of sale consideration of Rs.
10,00,000
The first defendant Smt. Mahaboobunnisa Begum filed a
written statement on 21st January, 1980 stating that certain
negotiations took place between her and plaintiffs Nos. 1
and 2, but no contract was finalised with them and the
negotiations failed. According to her, under an agreement of
sale dated 22nd June, 1979 she agreed to sell the property
in question to defendants Nos. 3 and 4, namely, Smt. Sugra
Begum and Smt. Saira Banu. It was submitted in the reply
that it was wholly incorrect to suggest of an oral contract
of sale on 3rd May, 1979 in respect of sale of the suit
property, in favour of the plaintiffs. There was a proposal
of sale of the suit property and plaintiffs did approach for
negotiations. However, the allegation of the plaintiffs
approaching during first week of April, 1979 with Arif Ali,
Income Tax practitioner, was wholly erroneous. In fact
plaintiff No. 1 approached
420
No. 1 with Arif Ali and Ibrahim Moosa for negotiations, and
plaintiffs Nos. 1 and 2 came along with them somewhere
during the last week of April, 1979 and tried to negotiate,
and thereafter, again they approached on 6th May, 1979, but
negotiations could not be finalised and the answering de-
fendant did not agree to sell the suit property to the
plaintiffs Nos. 1 and 2. In fact, details have been men-
tioned in the counter, filed in I.A. pertaining to injunc-
tion bearing No. 679/79, which may be read as part of the
written statement. There was no concluded or enforceable
contract, arrived at on 3rd May, 1979, as alleged and con-
tended. It was further alleged that there was no price
settled or agreed and even the payment for advance was not
settled and other terms and conditions were not agreed upon,
even on 6th May, 1979 and the negotiations failed and noth-
ing was settled. There was no concluded contract and the
plaintiffs had no cause of action to file the present suit
for specific performance. The parties never intended to have
an oral agreement, and the negotiations if any, never re-
sulted in a concluded contract, and even if the negotiations
had been finalised, it had to be reduced into a written
agreement, and the writing contemplated was not formal as
alleged and contended by the plaintiffs, but was a condition
and a term of contract. The plaintiffs with ulterior motive
had taken the plea of oral contract
It was further submitted in the written statement that
it was true that plaintiffs Nos. 1 and 2 did approach the
answering defendant on 6th May, 1979 along with Ibrahim and
Arif, and even in the said meeting negotiations failed and
the parties did not and could not arrive at a concluded
contract; and even in the said negotiations on 6th May, 1979
matters remained unsettled and were not concluded. It was
plaintiff No. 1 who attempted to prepare receipt, it was
wholly erroneous to suggest of any draft receipt or a final
receipt being prepared after scrutiny made by the husband of
the answering defendant. There was no final document pre-
pared and there was no final settlement of terms and condi-
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tions of contract. The answering defendant was not aware of
the purchase of stamp paper and she never asked for the
purchase of the stamp papers. The blank stamp papers and
incomplete and unsigned draft receipts in no way spell out a
concluded contract and the suit is untenable.
It was also alleged in the reply that even on 6th May,
1979 there was no completed or concluded contract and nego-
tiations failed. Consequently, the plaintiffs took away the
blank incomplete papers, and rushed with utmost haste to get
it published in the newspaper, making false allegations of
having paid Rs.50,000 as advance under the sale
421
agreement etc., and immediately, the answering defendant
sent a suitable reply contradicting the said allegations.
There was no bonafides in their action. It was done with
ulterior motive to cause loss and damage to the defendant.
When no earnest money had been paid or received, the plain-
tiffs Nos. 1 and 2 had no right to make false allegations
and mislead the public and consequently the answering de-
fendant suffered heavy loss.
The second defendant M/s. Gopi Hotel only took the plea
in the written statement that he was a tenant in the build-
ing. Defendants Nos. 3 and 4 supported the case of the first
defendant and claimed ownership in the suit property by
virtue of a registered sale deed dated 19th November, 1979
executed in their favour. It may be made clear at this stage
that according to defendant No. 1 an agreement to sell the
property in question was made by the first defendant in
favour of defendants Nos. 3 and 4 on 22.6.79. After the
injunction being vacated by the High Court the first defend-
ant sold the suit property for a sum of Rs. 10,00,000 in
favour of defendants Nos. 3 and 4 by a registered sale deed
dated 19th November, 1979. Defendant No. 1 died on 3rd
November, 1982 during the pendency of the suit as such
defendants Nos. 5 to 9 were impleaded as legal representa-
tives of defendant No. 1.
The Learned Trial Court recorded the summary of the
findings which are reproduced in its own words.
49. Summary of the findings:
"On the facts and circumstances of the case, it is estab-
lished that the plaintiffs entered into an oral contract of
sale with D. 1 on 3.5.79. The terms settled were that D. 1
should sell the suit property for a sum of Rs. 10,00,000 and
D. 1 should obtain permissions from the authority under Land
Ceiling Act and also income Tax Act. The sale deed should be
executed within six months from 6.5.79. It is also settled
that vacant possession was not to be given on the date of
contract of sale, and the parties are aware that the defend-
ant No. 2 was only a tenant in the premises. The only aspect
left open on 3.5.79 is that mode of payment should be fixed
on 6.5.79. On 6.5.79 it was agreed that D.1 should receive
Rs.50,000 as advance and these terms were reduced into
writing in Ems. A. 1 and A. 2, but, before the ink could
dry, the defendant No. 1 on the evening of
422
6.5.79, refused to receive the amount. This resulted in the
breach of contract on the part of D. 1. So the plaintiffs
are entitled to specific performance of oral contract of
sale concluded on 3.5.79. Subsequent sale to defendants 3
and 4 do not create any rights in favour of them and in
order to prevent D. 3 and D. 4 from claiming any rights in
future, they should also be made to join D. 5 to D. 9 in
executing the registered sale deed. Defendant No. 2 is
admittedly not entitled to any proprietary rights in the
property and he is only a tenant. As to whether D. 2 is
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liable to be evicted or not it is held that the Plaintiffs
are entitled to seek eviction at an appropriate time when
they become full owners of the property. Defendants 3 and 4
shall not be liable to contribute any thing towards expenses
for the executing of the registered sale deed and defendants
5 to 9 as legal representatives of D. 1 are bound to perform
their part of contract by obtaining permission required
under the Urban Land Ceiling Acts and Income Tax act and any
other Act required execute the sale deed and register the
sale upon receiving the entire consideration of Rs.
10,00,000. The expenses for registration of the sale deed
shall be borne out in equal halls by defendants 5 to 9 on
the one hand and the plaintiffs on the other hand".
As a result of the above findings the trial court de-
creed the plaintiffs suit for specific performance. Two
separate appeals, one by defendants Nos. 5 to 9 and the
other by defendants Nos. 3 and 4 were filed in the High
Court challenging the decree passed by the trial court. A
Division Bench of the High Court by Judgment dated 24th
September, 1987 allowed both the appeals and set aside the
decree passed by the trial court. As two separate appeals
Nos. 150 and 152 of 1984 were disposed of by one single
order the plaintiffs filed the above two civil appeals
before this Court by Special Leave.
The High Court observed that the only question which
arose for consideration in both the appeals was whether
there was a concluded oral contract between the parties,
namely, plaintiffs 1 and 2 on one side and the first defend-
ant on the other, on 3rd May, 1979 as alleged by the plain-
tiffs? According to the High Court to decide this question,
the only available oral evidence was that of P.W. 1 Brij
Mohan, P.W. 3 Jagmohan and D.W. 2 Arif Ali. As regard the
negotiations which took place between the parties in the
third week of April, 1979, the High court observed that the
negotiations which took place between the
423
parties in the third week of April, 1979 were not in dispute
and which were to the effect that when the first defendant
was insisting on payment of Rs. 10,00,000, plaintiffs 1 and
2 increased their offer from Rs.7,00,000 to Rs.8,00,000 and
the first defendant promised them to think over and inform
the plaintiffs through Arif Ali. The High Court then consid-
ered the bargain that took place between the parties on 3rd
May, 1979. The plaintiffs apart from their own statements as
P.W. 1 and P.W. 3 had also examined P.W. 2, the Income Tax
Inspector B-Ward Circle No. 4, Hyderabad to show that de-
fendant No. 1 was an income tax and wealth tax assessee and
Sh. Arif Ali, Advocate and Income tax practitioner used to
look after her tax matters. The plaintiffs had also examined
P.W. 4, Mohd Yusuf a stamp vendor to prove Exhibit X-25
sales register of stamps and Exhibit X-26 an entry of sale
of Ex. A. 3 non judicial stamps for Rs.5 to defendant No. 1
Smt. Mahboobnissa Begum. Similarly plaintiffs had examined
P.W. 5 Sheikh Ismail another stamp vendor for having sold a
stamp Exhibit A-4 to one Abdul Khalik on behalf of Smt.
Mehboobnissa Begum vide entry Ex. X-27 in the register of
stamps. The plaintiffs by the aforesaid evidence wanted to
establish that one stamp was purchased by Smt. Mehboobnissa
Begum herself and another through Mohd. Khalik for executing
the agreement for sale in favour of plaintiffs. The High
Court in this regard observed that it was not necessary to
discuss the evidence of P.W. 4 as to whether the first
defendant personally went to him and purchased the stamp
paper. The first defendant who is a lady from aristocratic
family would not have gone all the way to Chotta Bazar to
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purchase a non-judicial stamp worth Rs.5. P.W. 4 deposed
that he cannot identify whether the person who came for
purchase of the stamp paper was Smt. Mehboobnissa Begum or
not. It may be that some person by name Smt. Mehboobnissa
purchased the stamp papers. P.W. 5 simply stated that he
sold exhibit A-4 to one Adbul Khalik on behalf of Smt.
Mehboobnissa Begum. D.W. 2, Arif Ali however said that
neither any transaction nor talks took place between the
plaintiffs 1 and 2 and himself on 3rd May, 1979. The High
Court did not agree with the submission of the Learned
counsel for the plaintiffs made before them that the pur-
chased of the stamps Exhibit A-3 and A-4 was a strong cri-
cumstance in favour of a concluded contract. The High Court
in this regard observed that first of all it was not firmly
established that the purchase of the stamps was for the
purpose of this transaction only. In view of the evidence of
D.W. 2 much weight cannot be given to the evidence of P.Ws.
4 and 5. The High Court further observed that even assuming
that these two stamps were purchased pursuant to the talks
that took place between D.W. 2 and P.Ws. 1 and 3 it would
not improve the case of the plaintiffs. The
424
stamps were blank and nothing was engrossed on them. This
circumstances, at the most would show that meeting on 6th
May, 1979 was fixed between the plaintiffs 1 and 2 and the
first defendant for further negotiations. The High Court
then observed that as regards the meeting which took place
on 6th May, 1979 and the fact that the negotiations fell
through was admitted by both the parties. Therefore, the
crucial question for determination was whether all the terms
of the oral contract were entered into between the parties
on 3rd May, 1979 or any terms were left open to be dis-
cussed and determined in the meeting to be held on 6th May,
1979.
The High Court then considered the argument of the
plaintiffs according to whom Exhibit A-1 draft receipt was
written by D.W. 2 Sh. Arif Ali on 6th May, 1979 stating that
the suit premises was agreed to be sold for Rs. 10,00,000
and the permission for Urban Land Ceiling Authority will be
obtained by the first defendant and the registration will be
completed within six months from that date. The plaintiffs
further case was that the first defendant’s husband who was
present suggested some alterations basing on which Exhibit
A-2 fair draft was prepared and that when the plaintiffs
took the agreed advance amount of Rs.50,000 in the evening,
the first defendant refused to accept the advance amount and
resiled from the contract. As against the above contentions
of the plaintiffs, D.W. 2 Sh. Arif Ali who is the represen-
tative of the first defendant deposed that in the meeting
between the parties which took place in April, 1979 the
vendor did not take the responsibility of obtaining ,clear-
ance under the Urban Land Ceiling Act. He denied the sugges-
tion that in the third week of April, 1979 the first defend-
ant offered to sell the suit property for Rs. 10,00,000 and
that she would obtain the clearance under the Urban Land
Ceiling Act. On the other hand he deposed that when the
plaintiffs offered Rs.8,00,000 the first defendant told them
that she would consider and communicate her view through
D.W. 2 some time later. The High Court in this regard clear-
ly observed that the contention of the plaintiffs that even
in the third week of April, 1979 before the parties could
agree upon the sale price for the suit building, there was
discussion about the obtaining of clearance under the Urban
Land Ceiling Act and that the first defendant undertook to
obtain that clearance certificate cannot be believed. The
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High Court further observed as under:
"As seen from their own evidence, by the 3rd week of April,
1979 plaintiffs 1 and 2 increased theft offer from
Rs.7,00.000 to Rs.8,00,000. At the time of the earlier
425
negotiations when the plaintiffs offered Rs.7,00,000 (seven
lakhs) and the 1st defendant was not willing to accept that
offer, there was no stipulation as to who should obtain the
clearance under the Urban Land Ceiling Act. If so, it is
unbelievable that in the 3rd week of April, 1979 when still
there was a wide gap of Rs.2,00.000 in the price payable for
the suit building, the parties would have stipulated about
the condition as to who should obtain the permission under
the Urban Land Ceiling Act. Therefore, the evidence of P.Ws.
1 and 3 can be believed to the extent that they approached
Arif Ali on 3.5. 1979 and Arif Ali in his turn communicated
their willingness to pay the price of Rs. 10,00,000 for the
suit premises and the 1st defendant accepted that offer."
The High Court on the basis of the above finding then
held that in order to determine the binding nature of the
contract between the parties, the mere acceptance of sale
price is not sufficient. It was not the case of the plain-
tiffs that the other terms of the contract were also dis-
cussed by D.W. 2 over the phone and their acceptance was
communicated to them by the 1st defendant through D.W. 2. It
was obviously for that reason that a further meeting was
fixed at the house of the 1st defendant in the morning of
6th May, 1979 which had admittedly taken place.
The High Court further held that it must be remembered
that this agreement is in respect of a valuable property and
the main intention was to reduce the terms of agreement into
writing and when the parties are very much relying on the
alleged oral agreement dated 3rd May, 1979, there would
definitely have been a reference in Exhibits A-1 and A-2 to
the oral agreement said to have taken place on 3rd May,
1979. The absence of the same in Exhibits A-1 and A-2
against throws a serious doubt about the alleged agreement,
dated 3rd May, 1979. In any event the mere fact that there
was a meeting between the plaintiffs Nos. 1 and 2 and D.W. 2
on 3rd May, 1979 does not establish that there was a con-
cluded contract between the parties on that day because
admittedly the first defendant was not present at that time.
What all had happened according to P.Ws. 1 and 3 is that
they offered to pay Rs. 10,00,000 for the suit building and
D.W. 2 having contacted the 1st defendant over the phone
conveyed to them her acceptance of the price fixed. In the
absence of evidence that the other terms also were discussed
over the phone and settled at that time and the 1st defend-
ant agreed for the terms, it cannot be said that there is a
con-
426
cluded contract on 3rd May, 1979. The fixation of price is
only one of the terms of the contract and by mere acceptance
of the price it cannot be said that there is a concluded
contract between the parties in the absence of proof of
fixation of other conditions mentioned in Exhibits A-1 and
A-2, viz., undertaking by the 1st defendant to obtain per-
mission from Urban Land Ceiling Authority and the amount of
advance to be paid. It is not the case of the plaintiffs 1
and 2 that prior to 6.5.79 there was an agreement between
the parties as to the amount of advance to be paid. The High
Court thus held that in the absence of any consensus being
arrived at between the two contracting parties about these
important aspects of the agreement it cannot be said that
there is a concluded oral contract between the parties on
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3.5.79.
It is important to note that even exhibit B-4 an agree-
ment of sale dated 22.6.79 executed between the 1st defend-
ant and defendants Nos. 3 and 4 does not impose the condi-
tion that the 1st defendant, the vendor, should obtain the
clearance from the Urban Land Ceiling Authority within the
stipulated period of six months. The High Court in this
regard observed that this evidence showed that the conten-
tion of the 1st defendant that the agreement fell through by
reason of the plaintiffs insisting on her obtaining the
permission from the Urban Land Ceiling Authority and the
expression of her inability to comply with that demand
appeared to be correct. The High Court clearly held that
there was no clinching evidence to show that this stipula-
tion was thought of by the parties on any day prior to
6.5.79. The High Court, therefore, did not agree with the
contention of the Learned Counsel for the plaintiffs that
all the terms of contract including the stipulation with
regard to the payment of advance amount and that the vendor
alone should obtain the permission from the Urban Land
Ceiling Authority were settled by 3.5.79 and what was left
to be done on 6.5.79 was merely to incorporate the terms
already arrived at into a formal document on Exhibits. A-3
and A-4 stamp papers. It was further observed that had there
been a meeting between plaintiffs Nos. 1 and 2 and the first
defendant on 3.5.79 and there was a direct conversation
between them, there may be a possibility for drawing such an
inference. But, as observed already, what all had happened
on 3.5.79 was that plaintiffs Nos. 1 and 2 expressed their
willingness to pay a consideration of Rs. 10,00,000 for the
suit building and the first defendant expressed her accept-
ance of that offer through D .W. 2. The other terms could
not have been settled between the parties in the third week
of April, 1979 because by that time there was no agreement
between the parties with respect to the sale consideration.
Without the price being settled, and especially when there
was a gap of Rs.2,00,000
427
in the price accepted by the first defendant and the price
offered by the first plaintiff, the parties would not have
discussed the other terms of the agreement such as the
advance money to be paid and the responsibility of the
vendor to obtain the permission from the Urban Land Ceiling
Authority.
It was submitted by the learned counsel for the appel-
lants that the High Court itself has arrived to a finding
that D .W. 2 Sh. Arif Ali on 3.5.79 after having a talk with
defendant No. 1 on phone had conveyed her acceptance to sell
the property for a sum of Rs. 10,00,000. It was submitted
that an agreement for sale of immovable property could be
made orally and so far as mode of payment of consideration
is concerned, can be settled subsequently. It was submitted
that in the facts and circumstances of the present case all
the fundamental and vital terms of the contract were settled
and concluded on 3.5.79 itself and even if the other details
like mode of payment of consideration, obtaining of no
objection certificate from Land Ceiling Authorities etc.
remained unsettled, the same could be determined in accord-
ance with Sec. 55 of the Transfer of Property Act. Oral
contract is permissible and so far as other terms which
remain unsettled, the same can be determined by operation of
law. It was contended that the only vital terms for a valid
agreement of sale of an immovable property were the identity
of the property and the price. Both these vital terms were
settled and concluded on 3.5.79 and when the plaintiffs were
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always ready and willing to perform their part of the con-
tract, a decree for specific performance should have been
passed in their favour. It was further contended that the
stand taken by the defendant No. 1 and tried to be supported
by Sh. Arif Ali D.W. 2 that no meeting took place on 3.5.79
at all was held not believable by the High Court itself. It
was further contended that the act of purchasing stamps on
3.5.79 by defendant No. 1 and the draft receipts Exhibits
A-1 and A-2 prepared by Sh. Arif Ali D.W. 2 himself clearly
lend support to the case of the plaintiffs. Reliance in
support of the above contention was placed on Kollipara
Sriramulu v. T. Aswathanarayana & Ors., [1968] 3 SCR 387 and
Nathulal v. Phoolchand, [1970] 2 SCR 854.
On the other hand it was contended on behalf of the
respondents that no vital or fundamental terms of the con-
tract were discussed, agreed or settled on 3.5.79. It was
contended that even if the case of the plaintiffs is be-
lieved, all that happened on 3.5.79 was that plaintiffs had
agreed to purchase the property for Rs. 10 lakhs to which
the defendant N. 1 had conveyed her acceptance through D.W.
2. Neither
428
any earnest/advance money to be paid was settled, nor, any
time for the payment of such money or time for execution of
agreement of sale or final sale deed and its registration,
was settled. It was argued that even if the time may not be
an essence of a term of contract for sale of immovable
property, it is a vital term without which no concluded
contract can be arrived at. Admittedly no meeting was held
on 3.5.79 in the presence of the defendant No. 1 and it was
agreed to have a meeting of the plaintiffs and defendant No.
1 on 6.5.79. It was also an admitted position that neither
any consideration passed nor any documents were signed by
the parties on 3.5.79. So far as 6.5.79 is concerned admit-
tedly the negotiations failed between the parties on that
day. It was further contended that if the terms had already
settled on 3.5.79 itself where was the necessity of execut-
ing draft receipts on 6.5.79 and in any case if it was a
mere formality then the plaintiffs should have brought a
typed agreement on the stamps for formal signature of the
parties. It was also argued that the plaintiffs failed to
examine Ibrahim Moosa who was an independent and a very
important witness in the whole transaction and an adverse
inference should be drawn against the plaintiffs for not
examining Ibrahim Moosa. The defendant No. 1 had produced a
counter affidavit Exhibit C-1 dated 27.7.79 in reply to
injunction application filed by the plaintiffs and she had
taken a clear stand that no terms were settled or concluded
on 3.5.79. It was further argued that admittedly the plain-
tiffs had not paid any earnest/advance money to the defend-
ant No. 1 towards the alleged transaction but still they
malafidely stated in the notice of 7.5.79 published in the
Newspaper that an amount of Rs.50,000 had been paid to
defendant No. 1. The defendant No. 1 in these circumstances
had immediately got published a contradiction on 8.5.79 and
this clearly goes to show the malafide and ulterior motive
of the plaintiffs. It was also argued that any agreement in
the third week of April, 1979 to the effect that defendant
No. 1 would bring the no objection certificate from the
Urban Land Ceiling Authorities was found not proved by the
High Court and as such there is no question of applying any
principles contained in Sec. 55 of the Transfer of Property
Act. It was also contended that the findings recorded by the
High Court are supported by evidence and this Hon. Court
should not interfere against such finding in the exercise of
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its jurisdiction under Article 136 of the Constitution of
India. It was also argued that Sh. Arif Ali was not holding
general power of attorney on behalf of defendant No. 1 and
he had no authority to settle or conclude any terms in
respect of a transaction of immovable property on behalf of
defendantlll No. 1. No objection certificate was necessary
to be obtained from Urban Land Ceiling Authorities and the
defendant No. 1 and her husband being old person
429
had clearly taken the stand that they would not bring such
certificate and no final and concluded contract took place
on any date.
We have given our careful consideration to the arguments
advanced by Learned Counsel for the parties and have thor-
oughly perused the record. We agree with the contention of
the Learned counsel for the appellants to the extent that
there is no requirement of law that an agreement or contract
of sale of immovable property should only be in writing.
However, in a case where the plaintiffs come forward to seek
a decree for specific performance of contract of sale of
immovable property on the basis of an oral agreement alone,
heavy burden lies on the plaintiffs to prove that there was
consensus ad-idem between the parties for a concluded oral
agreement for sale of immovable property. Whether there was
such a concluded oral contract or not would be a question of
fact to be determined in the facts and circumstances of each
individual case. It has to be established by the plaintiffs
that vital and fundamental terms for sale of immovable
property were concluded between the parties orally and a
written agreement if any to be executed subsequently would
only be a formal agreement incorporating such terms which
had already been settled and concluded in the oral agree-
ment.
Now we shall examine the facts and circumstances of the
present case in order to find whether the plaintiffs have
been able to prove that there was a concluded oral agreement
between the parties on 3.5.79 in order to seek decree for
specific performance of contract in their favour. Admitted
facts of the case are that the transaction in question
related to a sale of an immovable property for no less than
a sum of Rs. 10,00,000 in May, 1979.3.5.79 is the crucial
date on which the oral agreement is alleged to have been
concluded. Admittedly on that date even earnest/advance
money had not been settled. It was also not settled as to
when the earnest/advance amount and the balance amount of
sale consideration would be paid. It was also not settled as
to when the final sale deed would be executed and regis-
tered. No talk with regard to any terms of the oral agree-
ment took place in the presence of the vendor defendant No.
1 on 3.5.79. It was also not decided whether actual posses-
sion or only symbolical possession of the premises in ques-
tion would be given by the vendor. No consideration actually
passed even on 6.5.79 and negotiations failed. Apart from
the above admitted facts of the case we would consider as to
what happened on 3.5.79. The plaintiffs have alleged in the
plaint that in the 3rd week of April, 1979 plaintiffs Nos. 1
and 2 along with Sh. Ibrahim Moosa and Sh. Arif Ali went to
the residence of the defendant who
430
was insisting on the payment of Rs. 10,00,000 as the sale
price. At the said meeting the husband of the defendant was
also present. The plaintiffs Nos. 1 and 2 increased their
price from Rs.7,00,000 to Rs.8,00,000. The first defendant
said that she would think over and inform the plaintiffs
Nos. 1 and 2 through Sh. Arif Ali. On 3.5.79 the plaintiffs
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1 and 2 along with Shri Ibrahim Moosa met Shri Arif Ali. He
stated that the defendant was agreeable to sell the plan
schedule property to plaintiffs only for Rs, 10,00,000 and
not a pie less. Thereupon the plaintiffs agreed to pay Rs.
10,00,000 as the sale price. Shri Arif Ali after getting the
confirmation of acceptance of the said offer of the plain-
tiffs No. 1 and 2 from the first defendant said that the
plaintiffs Nos. 1 and 2 should meet the defendants on 6.5.79
and that she would in the meanwhile purchase the stamp
papers for making the formal agreement for sale incorporat-
ing the oral agreement arrived at. Then there is an averment
with regard to the meeting of 6.5.79 between the first and
second plaintiffs along with Shri Ibrahim Moosa and the
first defendant and her husband in the presence of Sh. Arif
Ali. It has been alleged that in the said meeting of 6.5.79
the amount of earnest money to be paid, time for registra-
tion of the sale deed etc. were decided. Now it is an admit-
ted case of the plaintiffs themselves that negotiations
failed on 6.5.79 and the defendant No. 1 resiled to sign any
of the receipts nor accepted any earnest/advance money nor
any agreement was even typed on the stamp papers nor signed
by defendant No. 1.
In the oral evidence P.W. 1 Shri Brij Mohan, plaintiff
No. 1 stated that in the meeting arranged in the 3rd week of
April, 1979 Shri Ibrahim and Shri Arif Ali came to the
plaintiff’s shop and then they all went to the residence of
defendant No. 1. The second plaintiff also accompanied them.
The husband of defendant No. 1 Shri Yunus was also present
at the meeting. He was introduced to them as the retired Law
Secretary. Defendant No. 1 insisted for Rs. 10,00,000 as
consideration of the suit property and told the plaintiffs
that she would obtain the permission from the ceiling au-
thority. Shri Brij Mohan then stated that they raised their
offer to Rs.8,00,000 defendant No. 1 told them that she
would think over for two or three days and inform them
through Shri Arif Ali, Thereafter Shri Brij Mohan states
regarding the bargain held on 3.5.79. According to him he
himself, second plaintiff and Mr. Ibrahim Moosa went to Shri
Arif Ali on 3.5.79. Shri Arif Ali told them that defendant
No. 1 was not willing to sell the suit property for less
than Rs. 10,00,000. And if they were willing to purchase for
Rs. 10,00,000 then they were welcome to do so at any time.
Shri Brij Mohan then said that they agreed to purchase the
suit property for Rs. 10,00,000 and asked Shri Arif Ali to
get the confirmation from
431
defendant No. 1. Shri Arif Ali spoke to defendant No. 1 on
telephone and then informed that defendant No. 1 was willing
to sell the property to them for Rs. 10,00,000. Shri Arif
Ali then said that they would buy the stamps for agreement
and fixed 6.5.79 morning for a meeting with defendant No. 1.
From a perusal of the above evidence it would be abundantly
clear that nothing was settled on 3.5.79 except the fact
that the plaintiffs had conveyed their approval to purchase
the suit property for Rs. 10,00,000 and Shri Arif Ali after
speaking to defendant No. 1 was willing to sell the property
for Rs. 10,00,000. Admittedly at the same time a meeting was
fixed with defendant No. 1 on the morning of 6.5.79. Accord-
ing to the case set up by defendant No. 1 she had never
agreed to obtain the permission from the ceiling Authority.
It would be important to note that no averment was made in
the plaint that defendant No. 1 had agreed to obtain the
permission from the ceiling Authority in the meeting held in
the third week of April, 1979. However, Shri Brij Mohan
plaintiff has sought to introduce this fact for the first
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time in his statement in the Court that defendant No. 1 had
told them in the meeting held in the third week of April,
1979 that she would obtain the permission from the ceiling
Authority. We are unable to accept the above statement of
Shri Brij Mohan that in the meeting held in the third week
of April, 1979 itself the defendant No. 1 had agreed that
she would obtain the permission from the ceiling Authority.
It is an admitted position that till the meeting held in the
3rd week of April, 1979 the plaintiffs had offered
Rs.8,00,000 and the first defendant had told them that she
would consider and communicate her views through Shri Arif
Ali some time later. We agree with the conclusion of the
High Court in this regard that without first determining the
sale price, it was quite unlikely that the parties would
have bargained as to who should obtain the clearance under
the Urban Land Ceiling Act. It was known. to the parties
that until the clearance under the Urban Land Ceiling Act
and the Income Tax clearance, the property will not be
registered. The High Court was right in concluding that it
is unbelievable that in the third week of April, 1979 when
still there was a wide gap of Rs. 2,00,000 in the price
payable for the suit building the parties would have stipu-
lated about the condition as to who should obtain the per-
mission under the Urban Land Ceiling Act. It is further
pertinent to mention that even in Exhibits A-1 and A-2 which
are drafts of agreement of sale there is no reference to the
oral agreement said to have taken place on 3.5.79. In case
all the terms had already been concluded in the oral con-
tract between the parties on 3.5.79 and only a formal agree-
ment was to be reduced in writing on 6.5.79, then in that
case there ought to have been a mention in the draft agree-
ment exhibits A-1 and A-2 regarding the oral agreement of
432
3.5.79. According to the statement of Shri Brij Mohan plain-
tiff No. 1 ,himself, nothing was discussed with defendant
’No. 1 herself and for that reason a further meeting was
fixed at the house of the first defendant in the morning of
6.5.79. Shri Arif Ali may have been an Income Tax Advocate
looking after the income tax and wealth tax matters of
defendant No. 1 but he was not a General Power of Attorney
holder to negotiate or settle any terms with regard to any
transaction of immovable property belonging to defendant No.
1. It is further important to note that even in the agree-
ment to sell exhibit B-4 dated 22.6.79 between defendent No.
1 and defendants Nos. 3 and 4, no responsibility had been
taken by the defendant No. 1 for obtaining the clearance
from the Urban Land Ceiling Authority. The High Court in
these circumstances rightly believed the contention of the
defendant No. 1 that the agreement fell through because the
plaintiffs insisted that defendant No. 1 should obtain the
permission from the Urban Land Ceiling Authority while
defendant No. 1 did not agree for the same. There was no
clinching evidence to show that this stipulation was thought
of by the parties on any day prior to 6.5.79. Thus in the
above circumstances when the parties were consciously nego-
tiating about the bringing of no objection certificate from
the Urban Land Ceiling Authority and the case put forward by
defendant No. 1 in this regard has been believed there is no
question of applying the principle contained in Section 55
of the Transfer of Property Act. The general principle
contained in Sec. 55 of the Transfer of Property Act regard-
ing rights and liabilities of buyer and seller can only
apply in the absence of a contract to the contrary and not
in a case where the parties consciously negotiated but
failed in respect of any term or condition, as a result of
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which the agreement itself could not be settled or conclud-
ed. Once it is held, established in the present case that no
agreement was finally concluded or settled on 6.5.79 and
negotiations failed and before this date it was never set-
tled that defendant No. 1 would bring the no objection
certificate from Urban Land Ceiling Authority, there is no
question of applying general principles contained in Sec. 55
of the Transfer of Property Act.
In Kollipara Sriramula v. T. Aswathanarayana & Ors.
(supra) was a case where in 1953 respondent No. 1 filed a
suit alleging that all the partners of the firm except the
appellant had entered into an oral agreement with him on
July 6, 1952 to sell 137 shares in the site except the 23
shares belonging to appellant No. 1, that 98 shares had
actually been sold to him, that 39 shares had not been sold
to him and had been instead sold to appellant No. 1. Re-
spondent No. 1 in these circumstances claimed specific
performance of the agreement to sell the
433
aforesaid 39 shares by their owners and contended that the
sale of those shares in favour of appellant No. 1 was not
binding upon him. The Trial Court decided against respondent
No. 1 but the High Court decided in his favour. On the basis
of above facts this Court held that the High Court was right
in holding that there was an agreement to sell 137 shares in
the site to respondent No. 1. A mere reference to a future
formal contract does not prevent the existence of a binding
agreement between the parties unless the reference to a
future contract is made in such terms as to show that the
parties did not intend to be bound until a formal contract
is signed. The question depends upon the intention of the
parties and the special circumstances of each particular
case. The evidence did not show that the drawing up of a
written agreement was a pre-requisite to the coming into
effect of the oral agreement, nor did the absence of a
specific agreement as to the mode of payment necessarily
make the agreement ineffective, since the vital terms of the
contract like the price and area of the land and the time
for completion of the sale were all fixed. The facts of the
above case clearly show that it related to sale of 137
shares and that in pursuance of the agreement partners who
owned 98 shares had already executed sale deeds in favour of
the plaintiffs/respondents and the other partners owning 39
shares did not do so. The High Court as well as this Court
believed the evidence of the plaintiff/respondent for con-
veying the entire 137 shares by an oral agreement dated July
6, 1952. This Court also found that the plaintiff respond-
ents had built a valuable cinema theatre building on the
disputed site and yet very strong reasons to make an out-
right purchase of the site otherwise he would be placed in a
precarious legal position- Negotiations for purchase were
going on for several years passed and considering this
background, the case of the respondent with regard to the
oral agreement appeared highly probable.
In the above background this Court on Page 394 observed
as under:
"It is, therefore, not possible to accept the contention of
the appellant that the oral agreement was ineffective in law
because there is no execution of any formal written docu-
ment. As regards the other point, it is true that there is
no specific agreement with regard to the mode of payment but
this does not necessarily make the agreement ineffective.
The mere omission to settle the mode of payment does not
affect the completeness of the contract because the vital
terms of the contract like the price and area of the land
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and the time for completion of the sale were all fixed."
434
Thus even in the above case the time for completion of
the sale was considered as one of the vital terms’ of the
contract. Further in the above case part of the agreement
had been performed i.e. partners having 98 shares had al-
ready executed sale deeds and this Court had believed the
oral agreement for sale of 137 shares. Thus the above case
is totally distinguishable and renders no assistance to the
appellants in the case before us.
Thus we find no force in these appeals and the same are
dismissed. In the facts and circumstances of the case we
make no order as to costs.
R.S.S. Appeals dis-
missed.
435