VENKATACHALAM PILLAI Vs. SETHURAM RAO ALIAS LAKSHMIKANTHA SASTRIAR

JUDGEMENT

(1.) This Second Appeal arises out of a suit filed by the plaintiff (1 respondent) for specific performance of an agreement to re-sell the plaint-mentioned site. The plaintiff's case is, that the suit site belonged to his adoptive father, that it was sold during the minority of the plaintiff by his natural father as his guardian to 1 defendant's father on 14 December, 1912, under a registered sale deed, that there is a stipulation in the sale deed for the reconveyance of the property to the plaintiff and his heirs for the original price itself, that in violation of that contract the 1 defendant sold the property to the 2nd defendant on 6 December, 1923, that this sale is not binding on the plaintiff and that he is entitled to enforce specific performance of the agreement to re-sell on tendering the purchase money and get a conveyance in his favour. The defendants attacked the plaintiff's claim on several grounds and contended that he was not entitled to specific performance of the alleged agreement. The first Court gave a decree in plaintiff's favour, which was confirmed by the lower appellate Court.

(2.) In this Second Appeal preferred by the 2nd defendant, three main contentions have been raised on his behalf in order to show that the plaintiff could not claim specific performance of the plaint-mentioned agreement. The first is, that the agreement contained in the sale deed, Exhibit A, was not a completed contract but only an offer by the vendee to re-sell the property to the vendor, which could become a completed contract only on acceptance of the offer by payment of the price and that the offer having been at an end by the sale of the property to the 2nd defendant, there was no subsisting offer for acceptance by the plaintiff and as such there was no contract of which specific performance could be claimed on the. date of the suit. The second is, that even if it should be held that there was a completed contract on the date of Exhibit ? A itself, it was not competent for the guardian of the minor-plaintiff to bind him by a contract for the purchase of the site and as the minor was not bound by that contract, there was no mutuality and consequently specific performance of such a contract is unenforceable in law. The third is, that the stipulation for re-sale-as contained in Exhibit A is void as it is obnoxious to the rule against perpetuities as laid down in Sec. 14 of the Transfer of Property Act.

(3.) The covenant in question contained in the sale deed, Exhibit A, is substantially as follows: If it happens that you or your heirs have to sell the property to others, then you must sell it to the plaintiff or his heirs for the above price and also for such price as may be determined by arbitrators in respect of any building that may be constructed upon the land.