TMI Blog2004 (7) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... ready complicated issues involved in cases coming before them, and makes their duties more onerous by requiring them to adjust rights and equities arising from delay. 3. This introductory comment is occasioned by the fact that against the judgment of the learned single judge passed on 6.9.1988 the appeal was earlier heard by the Division Bench of the High Court on 22.3.1989 but it passed the judgment after a period of about five years on 24.1.1994. It dismissed the appeal and confirmed the decree of Specific Performance of the Contract granted by the single judge. 4. In appeal preferred by the defendants, this Court by order passed on 13.1.2000 [2000]1SCR254 remanded the appeal to the Division Bench of the High Court for a fresh decision only because of long gap of five years in hearing arguments and decision of appeal by the High Court. 5. After remand the Division Bench reheard the appeal and by the impugned judgment dated 24.4.2001 has allowed it. The decree granted by the learned single judge of partial relief of Specific Performance of Contract of Sale of life interest of the vendor in the suit properly has been set aside. 6. With this background the facts of the case may be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulation in the agreement that if after the sanction of the Court the vendor commits breach of the contract he shall return the advance money of Rupees 25,000/- and pay a sum of Rupees 15,000/- to the vendee by way of liquidated damages for failure to complete the sale. The agreement further provided that if after the sanction of the Court, vendee commits breach and does not complete the sale, he shall be liable to pay to the vendor a sum of Rupees 15,000/- by way of liquidated damages. 9. The relevant part of opening recitals and clauses 1,2,3,4,6,7,9 15 of the agreement dated 26.6.1977 Ex.P1 are reproduced hereunder as rights, and equities of the contesting parties are dependent on its proper construction, and understanding: AGREEMENT OF SALE THIS AGREEMENT OF SALE executed at Madras this 26th day of June 1977 between G.D. NARENDRA KULLAMMA NAICKER, son of late M.Dorai Pandian alias Subba Naicker, Hindu, aged about 38 years and now residing at Plot No. 24, Second Stage, Panmanabha Nagar, Adyar, Madras-20, hereinafter referred to as the vendor of the one part and HPA INTERNATIONAL, a firm having its business office at No. 15/16, Casa Major Road, Egmore, Madras-8 represented herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be paid and discharged as and where demanded for want of requisite net income from the estate to meet the same and on account of paucity of funds in the estate. WHEREAS there is now due towards the said Public debts and public liabilities a sum of nearly six lakhs, whereas consequent on the inability of the estate to pay the same, interest on the said public debts are accruing from day to day thereby increasing the liability of the estate enormously. Whereas in consequence of the inability and failure of the estate to meet the said public debts within the periods of the respective demands, penalties are also levied thereby further swelling the public Debt liabilities of the estate. WHEREAS the vendor apprehends that eventually the public debts and liabilities may swallow up the estate whereas the payment of all the said Public Debts and dues and public liabilities is a first charge on the entire state. WHEREAS the vendor also apprehends that in the circumstances the State and Public Authorities may take coercive steps and bring the properties comprised in the Estate to sale for the realisation of the public Debts and Liabilities. Whereas the vendor also apprehends that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a half lakhs and subject to and upon all the terms and conditions mentioned below: 2. The sale is of the entire interests in the said property namely, the present interest of the vendor and the interest of the remainder men or reversionary after his death. 3. This agreement is subject to the passing of the vendor's title to the property and of the vendor's rights to sell the entire interest, present and future in the property by the Purchaser's advocate. 4. The vendor shall obtain at his own cost and expense the sanction of the High Court, Madras for the absolute sale as aforesaid of the entire interest in the property inclusive of the interest of the remainder men or reversioners after the life time of the vendor. 5. The purchaser has this day paid to the vendor a sum of Rs.25,000/- (rupees twenty five thousand only) by bank draft bearing No.CL/AA 779570 dated 24.6.1977 drawn on the State Bank of India, Adyar, Madras, in favour of the Vendor, as advance towards agreement of sale. 6. In case sanction of the Court is not accorded as aforesaid, this agreement shall forthwith stand cancelled and the vendor shall forthwith return the advance amount of rupees twenty five th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eversioners, the vendor sent a lawyer's notice on 11.9.1979 to the vendee stating therein as under: In view of the prolonged proceedings in obtaining sanction of Court, for sale of the above said property and the pressing demands from Tax Authorities, my client Mr. G.D. Narendra, hereby cancels the agreement of sale referred to above and the advance sum of Rs.25,000/- paid by your draft under the above said agreement is, therefore, refunded by his check bearing No.........dated 11.9.1979. 14. Soon after issuance of the above lawyer's notice, the vendor, on 12.9.1979, instructed his lawyer stating that the suit seeking sanction of the Court was not likely to be decided early and the chances of grant of sanction being remote, the suit be withdrawn. 15. It may be mentioned at this very stage that eventually the suit was not, in fact, withdrawn and, as would be stated in detail hereinafter, the suit was prosecuted by the vendee himself who got himself transposed in the suit as co-plaintiff. 16. The vendee sent a detailed reply to the lawyer's notice sent by the vendor cancelling the agreement. In his reply, the vendee attributed mala fides to the vendor in rescinding the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y referred to as the subsequent vendee ). What is apparent from the contents of the subsequent sale deed Ex.D1 dated 29.12.1979 executed in favour of the subsequent vendee is that large part of the sale consideration in different sums aggregating to Rs.2.68 lacs was paid directly by the subsequent vendee to various authorities to discharge public dues and taxes like Corporation Property Tax, Urban Land Tax and Income Tax arrears. 20. The subsequent vendee by separate release deeds dated 21.10.1980, 22.1.1980, 22.2.1980 and 29.4.1980 obtained surrender of rights individually from the reversioners by paying each of them a sum of Rs. 20,000/-. 21. After receiving the lawyer's notice and cancellation of the sale agreement, the vendee on 25.3.1981 got himself impleaded as a party-defendant in Suit No. 471/77 which was filed to seek sanction of the Court. 22. On 16.8.1981 the vendee filed Civil Suit No. 423/81 seeking Specific performance of the Agreement of Sale agreement Ex.P1. 23. Under order dated 17.12.1981 passed in Civil Suit No. 471/77 seeking sanction of the Court, the vendor got himself transposed as co-plaintiff. The two suits i.e. Civil Suit No. 471/77, seeking court sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A International, swore in CS No. 423 of 1981, that in the event of this Court coming to the conclusion that Messrs. HPA International as 2nd plaintiff in CS No. 471 of 1977 is not entitled to maintain the suit as prayed for, HPA International is restricting their claim in CS No. 423 of 1981 for specific performance of the agreement Ex.P1 with reference to the life-estate of Narendra Kullamma Naicker alone and for a direction to the defendants in that suit to execute the sale deed in favour of the plaintiff to the extent of the life-estate of Narendra Kullamma Naicker as provided under Section 12(3) of the Specific Relief Act for the consideration of Rs.5,50,000/- for which he had bargained for the whole interest in the suit property. In view of the above affidavit filed by Messrs. HPA International in CS No. 423 of 1981, this suit viz., CS No. 471 of 1977 has become infructuous. Further, this Court cannot compel the reversioners to part with their interest. As such, I find that the suit in CS No. 471 of 1977 has become infructuous, and it is dismissed as infructuous accordingly. No costs. 26. It may be stated that this part of the common judgment dismissing Civil Suit No. 471/77, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge further held thus: Whereas, the agreement involved in this suit is capable of separation, one consisting of enforceable portion viz. the life interest of the first defendant and unenforceable portion viz. interest of remainder men and reversioners. 30. The learned single judge found that the equity was in favour of the vendee as the vendor has been found guilty of misrepresenting Bob Daswani and Fateh Chand Daswani as two persons when they were the same and the negotiations for subsequent sale were held in presence of one of the partners of the vendee. The learned single judge on this aspect in the judgment comments thus: It is a pity that third defendant who is considered to be an enlightened citizen having international connections with so much of wealth has not come forward to state at the earliest opportunity that he carries the name Bob Daswani also. That shows the guilty conscious of the third defendant. Having projected his image as Bob Daswani, the presence of the first defendant and the plaintiff on 9.9.1979 he wanted to hoodwink the plaintiff for getting his sale-deed in the name of the third defendant so as to plead that third defendant is bona fide purchaser for valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 31 held thus: The sanction referred to in the agreement is a sanction which was clearly meant for the benefit of both the parties to the agreement. The plaintiff was interested only in the purchase of entire interests' in the property, had made the agreement subject to such interest being lawfully conveyed and accepted liability for payment of liquidated damages if it failed to obtain the sale deed after the sanction was obtained. Plaintiff not having contracted with the reversioners to buy their interest, could not have secured the 'entire interest' in the property without an order of this Court directing conveyance of the reversionary interest to the purchaser. The sanction of the Court was clearly meant for the benefit of the purchaser as well as the vendor. 35. The Division Bench has taken the view that as the sanction for sale was not granted by the Court as was contemplated by the parties under the terms of the agreement; the contract was rendered un- enforceable. The Division Bench concluded thus: Appellants are entitled to contend that the contract is a contingent one, and that the contingency contemplated by the parties not having occurred, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The bargain was for all or nothing. It was not open to the court to make a new contract for the parties after the contract in its entirety had perished. 38. The Division Bench negatived the claim seeking conveyance of life interest in the property of the Vendor, also on the ground of delay and equity by observing thus: Plaintiff cannot be allowed to claim performance in part several years later. Had the plaintiff been earnest about relinquishing its claim for reversionary interest, it could have obtained Narendra's life interest in 1977 itself, and at any time up to the execution of the sale deed by Narendra In favour of appellants in 1979. Narendra was eager to sell and had been waiting for the plaintiff to take a sale deed from him. The sale by Narendra to appellants was for the purpose inter alia, of raising the monies required for paying the arrears of revenue - funds which the plaintiff could have provided by obtaining conveyance of his life interest, but was not so provided. Having regard to these facts the prayer for part performance made during the course of the trial at a stage when it was evident that the suit as laid was doomed to failure, was not one which could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni were two different persons and the subsequent vendee had no knowledge of the prior agreement entered with the plaintiff- vendee. This deception sought to be practised on the opposite party and the court was exposed during trial and the learned single judge has imposed penalty on the subsequent vendee for the misconduct of misleading the court. It is submitted that the subsequent vendee having purchased the property with knowledge of the prior agreement holds the property in trust for the benefit of the prior vendee and is obliged in law to make over the property to the prior vendee under decree for specific performance of the prior contract. Sections 90, 91 92 of the Indian Trusts Act are relied for the above proposition and need reproduction at this stage for better appreciation of the arguments advanced on this point on behalf of the vendee :- Section 90. Advantage gained by qualified owner. - Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndor. Such relief can be granted under section 12(3) of the Specific Relief Act as the vendee is willing to pay full agreed consideration for lesser relief of conveyance of life interest in the property. Reliance is placed on Lala Durga Prasad v. Lala Deep Chand [1954]1SCR360 ; Jhumma Masjid v. Kodimaniandra Devaiah AIR1962SC847 ; Soni Lalji Jetha v. Sonkalidas Devchand [1967]1SCR873 ; and Narandas Karsondas v. S.A. Kamtam [1977]2SCR341 . 44. It is argued that the Division Bench of the Madras High Court was wrong in coming to the conclusion that the contract was a contingent one and as the court did not grant sanction for sale of reversioners' interest and dismissed the suit seeking sanction as infructuous, the contract failed. The contention advanced is that where the grant of sanction of the court was frustrated by the vendor himself by prematurely rescinding the contract and instructing his lawyer not to prosecute the sanction suit, the dismissal of the suit as infructuous was self-induced by the vendor. The vendor cannot be allowed to take advantage of his own wrong. The law and equity is in favour of the plaintiff- vendee. Reliance is placed on Ganga Saran v. Ramcharan Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was needed. Reliance is placed on S.P. Chengalvarya Naidu v. Jagannath AIR1994SC853 and Sheoparsan v. Ramnandan AIR 1916 PC 78 . 48. Rest of the contentions advanced at the Bar on behalf of the plaintiff- vendee, in our opinion, are not required to be separately dealt with because of the view we propose to take and the conclusion reached by us which shall be elaborated hereinafter. 49. Learned senior counsel Shri Soli J. Sorabjee appearing for the subsequent vendee rested his argument on his main submission that the sale agreement was a contingent contract - the contingency named being sanction of the court which did not materialize. Upon failure of that contingency, the agreement stood cancelled forthwith under clause (6) of the agreement. On failure of the happening of the contingency, the agreement had been rendered unenforceable in accordance with section 32 of the Indian Contract Act read with definition of 'Contingent Contract' contained in section 31 of the said Act :- Section 31. - A 'contingent contract' is a contract to do or not do something, if some event, collateral to such contract, does or does not happen. Section 32. Enforcement of contracts con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of life interest is that such option under section 12(3) of the Specific Relief Act was not exercised at the first available opportunity when a formal legal notice was given by the vendor to terminate the contract anticipating remote possibility of grant of sanction. It is submitted that the option for lesser relief was claimed when the joint trial had already commenced in the suits and all the pleadings of the parties had been completed. It was not an unconditional offer to obtain life interest. The provisions of Section 12(3)(b)(i) (ii) of the Specific Relief Act were thus not fully complied with which require for obtaining partial relief of specific performance, unconditional surrender of remaining part of the contract. 55. In reply to the argument that the sanction suit was not prosecuted by the vendor deliberately to render it infructuous with a design to back out from the contract in conspiracy with the subsequent vendee, it is pointed out that despite service of notice terminating the contract, the suit was not in fact withdrawn. Soon thereafter the vendee got himself impleaded and later transposed in the suit as co-plaintiff. In the course of trial of sanction suit with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty was the pressing necessity to ward off coercive recovery from the property. 57. The additional argument advanced in opposing the claim for lesser relief of conveyance of life interest is that the clause requiring the sanction of the court for transfer of the reversioners' interest was a term of contract for the benefit of both the vendor and the vendee. The court's sanction would have protected the vendor from claims and possible legal proceedings against him by the reversioners. Court's sanction was also for the benefit of the vendee to ensure effectuation of the agreement of sale which purported to sell entire interest that is life interest of vendor and spes successionis of reversioners. The term of seeking court's sanction being a term in common interest - both of vendor and the vendee, the vendee could not be allowed to unilaterally waive it by restricting his claim to life interest. There is also no pleading and evidence to justify claim set up by the vendee. The dismissal of sanction suit as infructuous was induced by the vendee becoming a co-plaintiff and filing an affidavit restricting his claim to life interest. It was, therefore, a self-defeating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the property, well before the impending initiation of coercive recovery by public authorities, was an urgent necessity. 59. The main contention advanced against the vendor is that the contract term clause (4) imposed a liability on him to seek sanction of the court for transfer of full title in the property. During pendency of suit for sanction, actions on the part of the vendor such as terminating the contract by sending a lawyer's notice and instructing his lawyer to withdraw the suit for sanction, amounted to committing breach of the contract. 60. The agreement was entered into on 26.6.1976. The reversioners opposed sanction by filing written statements on 16.1.1978. It is long after, on 11.9.1979 by lawyer's notice, the vendor terminated the contract. The sanction suit was pending from 26.6.1976. Even after two years, the sanction was not granted. The question is whether the agreement Ex.P-1 contemplated that the vendor should have waited for grant of sanction by the court for an indefinite period of time. The recitals of the agreement of sale clearly mention the necessity of sale arising from the pressure of public dues and taxes. The vendor could not have waited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit for sanction, but in fact, the suit was not withdrawn. The vendee got himself impleaded initially as defendant to the suit and then sought his transposition as co-plaintiff. That part of the action of the vendee cannot be castigated as self-defeating because he was naturally interested in prosecuting the suit for sanction diligently to obtain conveyance of full rights in the property. However, the further act on the part of the vendee of filing an affidavit restricting his claim only to life interest resulted in dismissal of the suit for sanction as infructuous. The learned single judge trying jointly the two suits came to the conclusion that as the vendee gave up his claim for transfer of interest of the reversioners, the court's sanction was not required. He dismissed the suit for sanction as infructuous. 63. In this appeal on behalf of the vendee it is now contended that had the suit for sanction been prosecuted by the vendor bona fide and diligently, as stipulated in the terms of the contract, the court might have granted sanction despite objection of the reversioners because there was likelihood of loss of the property in process of recovery of public dues by aucti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transfer of full interest in the property was, therefore, dependent on sanction of the court. To meet this contingency, there were specific terms such as clauses (4) and (6) incorporated in the contract whereby it was clearly agreed that the vendor shall obtain sanction of the court at his own expense and costs and if the sanction was not accorded by the court, the agreement would stand cancelled and the advance money refunded to the vendee. Clause (15) of the agreement could come into operation only if the court granted sanction and any of the parities failed to complete the sale. Clause (15) had no operation when the sanction was not accorded to the sale. 66. As has been seen from the facts of this case, the vendor did apply for sanction, waited for two years and when it found that the reversioners opposed the grant of sanction, cancelled the contract. The sanction suit, despite instructions to his lawyer was not, in fact, withdrawn. The suit for sanction frustrated not because the vendee became co-plaintiff but because he filed an affidavit restricting his claim to life interest of vendor. The life interest was not agreed to be separately sold apart from the interest of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng specific terms of the contract and considering the conduct of the parties, we have arrived at the conclusion that the recession of the contract, due to non-grant of sanction by the court within two years after execution of the contract and filing of the suit for sanction, was not an act of breach of contract on the part of the vendor to justify grant of relief of specific performance of the contract to the prior vendee. 69. We are also of the view that the subsequent vendee, by his own act in the pending suits, was responsible for rendering the suit for sanction as infructuous. He was guilty of lapse in not seeking conveyance of life interest of the vendor at the earliest opportunity when notice of recession of the contract was received by him and later when he derived the knowledge of execution of registered sale-deed in favour of the subsequent vendee. The option was exercised conditionally in the midst of the joint trial of the two suits. 70. There was one integrated and indivisible contract by the vendor to convey full interest in the property i.e., his own life interest and the interest of the reversioners with sanction of the court. As the court had not granted the sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. 75. The reversioners have surrendered their interest by accepting consideration separately and executed separate release deeds in favour of the subsequent vendee. Even though the subsequent vendee has acquired property with knowledge of sale agreement Ex.P1 existing with the prior vendee, the latter has no equity in his favour as to bind the reversioners and in any manner adversely affect their interest. They were not parties to the sale agreement and have already by separate release deeds, on accepting separate consideration, surrendered their interest in favour of the subsequent vendee. Any grant of relief of transfer of life interest of the vendor to the prior vendee would involve the reversioners in further litigation. If only life interest of the vendor is allowed to be conveyed to the prior vendee, after death of vendor, the reversioners are likely to be involved in litigation in future to help in restoring possession of the property to the subsequent vendee and effectuate the release deeds executed in his favour by them. Grant of such equitable relief would adversely affect the immediate efficacy of the release deeds and would create various hurdles in working out the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the vendor on a finding that the vendor had committed breach by rescinding contract during pendency of sanction suit. The Division Bench of the High Court, in our considered opinion, rightly reversed the decree and dismissed the suit. 79. We are fortified in our conclusion by the decisions of Privy Council reported in AIR (34) 1947 PC 182 [ Dalsukh M. Pancholi v. The Guarantee Life and Employment Insurance Co. Ltd., and Ors.] in which facts were somewhat similar requiring court's approval for performance of the agreement of the sale. Two questions were posed by the court - a) was the term subject to the Court's approval an essential term of the agreement?; and b) if it was essential, by whose default did it fail? The Privy Council answered the questions saying - No wonder that the approval of the 'attaching court' was insisted on as a necessary condition for effecting the sale, for without it, the title to the property was not at all safe. In their Lordships' opinion there can be no doubt that the condition was an essential one. 80. The Privy Council then recorded the following conclusions on the questions posed :- The person to apply to the 'attaching Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be compelled to carry out the terms of the original agreement, nor could they have insisted upon the plaintiff's carrying out the terms sanctioned by the court. Section 26, upon which the vakeel for the appellant relies, sets out cases in which contracts cannot be specifically enforced except with a variation; and there are five particular cases set out in which a contract may be enforced subject to a variation, such variation being in favour of the defendant, and the section in our opinion assumes that the parties or vakeel representing them are agreed as to the existence of the contract, but not agreed as to specific terms. The section provides that, when fraud or mistake of fact, or misrepresentation has induced the defendant to sign an agreement, that agreement can only be enforced on the terms which the defendant intended to agree to. There is no provision of law of which we are aware which entitles the plaintiff to claim a variation in the terms of his contract, when he finds that the contract itself cannot be carried out. In the present case the plaintiff by his plaint sought to enforce the original contract without any variation. It seems to us, therefore, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be limited and the expression stands on a separate and independent footing points to a limitation, which would exclude any new bargain, that cannot be said to be contained in the old one. 86. As the lesser relief was claimed after long delay and the contract was found to be indivisible and inseparable, the partial relief was denied in the case of Govinda Naicken and Anr. v. Apathsahaya Iyer alias Ayawaiyer [ 37 Madras Series 403] But when the family is divided as here, section 17 distinctly prohibits a Court from directing the specific performance of a part of a contract except in accordance with the preceding sections. Even in cases where the conditions of section 15 are fulfilled the use of the word 'may' indicates that the granting of a decree for part performance is discretionary with the Court, and we should hold that when there has been great delay in attempting to enforce a contract and circumstances have greatly changed either from a rise of prices or other causes in the interval, the Courts would be justified in refusing to given legal effect to an inequitable arrangement. Now the plaintiff in the present case wants the Court to compel the defendant to execute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 25,000/- shall be refunded to the purchaser. It was known to the parties that the vendor had only life interest in the property and the reversioners were not the parties to the agreement. Even with this knowledge of limited right of the vendor and the reversioners being not signatories to the sale agreement, there is no stipulation made in the contract that if court's sanction was not obtained for transfer of reversioners' interest, the vendor shall convey his life interest to the vendee. 89. On behalf of the plaintiff- vendee, strong reliance was placed on Suisse Atlant v. N.V. Rotterdam 1966 (2) AER 61 . It has been argued that seeking sanction of the court for transfer of reversioner's interest was an obligation on the vendor and if it deliberately acted in a manner to get relieved of that obligation by not prosecuting sanction suit and prematurely terminating the contract, the vendee has a right to waive that condition and ask for transfer of life interest of the vendor which he could alienate to the vendee. In other words, it is submitted that even if the clause seeking sanction of the court was a fundamental term of the contract, its breach was deliberately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endor had agreed that the vendee would directly discharge the tax liabilities from the total amount of sale consideration. It was not possible for the vendor to have waited indefinitely for final orders on the suit for sanction when the reversioners had objected to the sanction and there was remote possibility of the grant of sanction in foreseeable near future. 92. It is argued that the Court could have granted sanction even though the reversioners objected because there was threat of coercive sale of the property for recovery of tax dues and taxes. 93. It would be purely in field of speculation as to what would have actually happened had the vendor continued to prosecute the suit despite the objection of the reversioners. As we have mentioned above the complications in disposal of sanction suit on merit were created by the vendee himself by getting himself transposed as co- plaintiff and then filing an affidavit restricting his claim to transfer of life interest. It is, thereafter, that the sanction suit was dismissed as infructuous. If the order of the court refusing sanction was erroneous and when an appeal was filed by the subsequent vendee against grant of decree of specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be read as an implied condition of the contract in view of the urgent necessity of sale to satisfy the tax dues and save the property from coercive recovery. The vendor had agreed for transfer of full interest in the property including his own life interest and of the reversioners. As the reversioners objected and ultimately the sanction suit failed, the performance of contract, as agreed for transfer of full interest in the property, had become impossible. There was no agreement between the parties that if sanction was not granted, the vendor would transfer his life interest. On the contrary, the agreement clause specifically stated that if the sanction was not obtained, the advance money shall be returned. This stipulation shows an intention contrary to the parties agreeing for transfer of life interest of vendor, if transfer of reversioners' interest was not possible for want of court's sanction. 96. Another argument advanced is that the reversioners had merely a chance of succession and had no transferable interest in the property. Reference is made to section 6(a) of the Transfer of Property Act which states :- 6. What may be transferred.-Property of any kind ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be sold were vacated by the Income-Tax Authorities . It was further provided that if the income-tax authorities did not vacate the premises or they stood requisitioned by the Government before registration of sale-deed - the vendor shall refund the consideration to the purchaser. As the premises were requisitioned by the government, the stand taken by the vendor was that it was contingent contract and on requisition of the premises, the contract failed. On the evidence of the parties, the finding reached was that the vendor had manipulated requisition of the premises. This Court, therefore, in appeal held that the contract did not provide that the sale would be effected only if the premises remain non-requisitioned or that on requisition of the premises, the contract would come to an end. The clause providing for refund of consideration if the premises were not vacated by the income-tax authorities or subsequently requisitioned by the government was held to be solely for the benefit of the vendee. It was held that if the vendor manipulated the requisition, the vendee could waive that condition and insist on sale of premises in the condition of it having been requisitioned. 100. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent upon the happening of which the contract is to be void was brought about by the act or omission of either party to it may involve a determination of a question of fact. 103. As has been observed by Lord Atkinson, it is always a question of fact to be determined in each case as to who is guilty of the act or omission to render the contract void or unenforceable. In the case of New Zealand Shipping Co. Ltd. (supra) on facts the ultimate conclusion reached unanimously by their Lordships was that the clause of the contract in that case, was a stipulation in favour of both the parties and the situation was not brought about by any of the parties to give rise to avoidance. It was found that the failure to fulfil the contract was not due to any fault on the part of the respondents but was due to a cause beyond their control. 104. In the present case also, we have come to conclusion that the vendor waited for a reasonable period for grant of sanction to the sale by the court. There was a pressing need for sale as the public dues and taxes could have been recovered from the property by coercive process at any time. The vendor, therefore, advisedly withdrew from the contract, negotiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale-deed the vendee plaintiff was placed in possession of the property on 25.2.1995. The basement and ground floor have been constructed by the subsequent vendee after obtaining possession on the basis of his sale deed. Thereafter plaintiff- vendee, on obtaining possession pursuant to the execution of decree granted by the learned single judge, has constructed two floors above the ground floor although the construction is said to be not complete in all respects. According to the plaintiff- vendee, he has incurred an expenditure of Rs.46,28,403/- for construction of two floors above the ground floor. As the construction put up by the plaintiff- vendee is to ensure for the benefit of the subsequent vendee, and the latter having succeeded in appeal before the Division Bench of the High Court, the Division Bench in adjusting equities has directed that on payment of construction cost incurred by the plaintiff- vendee for two floors above ground floor, the whole construction will become the sole property of the subsequent vendee. 108. From the date of the impugned judgment of the Division Bench the total rent received from the property has been accounted for. The whole rental income has ..... 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