Wednesday 30 January 2013

Unless there is a concluded contract between the parties the plaintiff is not entitled to a decree for specific performance


 In a suit for specific performance it is for the plaintiff to establish that there was a binding and concluded agreement between the parties, learned counsel for the appellant has relied upon various authorities. The first authority relied upon by the learned counsel for the appellant is New Mofussil Co. v. Shankerlal Narayandas Mundade; AIR 1941 Bombay 247 wherein it was held that the contract is complete when all the conditions between the parties are settled. The next authority relied upon is Rudra Das v. Kamakhya Narayan; AIR 1925 Patna 259 wherein it was held that specific performance will not be granted where parties have intended that it was not to be considered to be a concluded contract until it has been confirmed by a third party.
12. The next authority is Bengal Coal Co. v. Prosanna Kumar wherein it was laid down that onus is on the
plaintiff to prove his case. Partial admission of receipt of money does not shift the onus.
13. There is no quarrel with the proposition of law laid down in these authorities that unless there is a concluded contract between the parties the plaintiff is not entitled to a decree for specific performance and the onus is on the plaintiff to prove his case.

Delhi High Court
Amrit Lal Suri vs C.P. Gupta on 20 March, 1990
Equivalent citations: AIR 1990 Delhi 224, ILR 1991 Delhi 150

1. This appeal is directed against the judgment of the learned single Judge dated 4-8-1987 by which the suit of the plaintiff for specific performance was decreed. The facts of the case giving rise to the present appeal, briefly stated are that the respondent/ plaintiff filed a suit for specific performance of an agreement to sell in respect of House No. B-36, Swami Nagar, New Delhi and for recovery of Rs. 61,297.57 or in the alternative for recovery of Rs. 1, 11,297.57 against the appellant/ defendant.
2. The allegations made in the plaint are that the appellant was at one time member of Delhi Dayalbagh Cooperative House Building Society Limited (hereinafter called the society). The Society owned land in Swami Nagar Colony in Chirag Delhi, which land was sold by the Society to different persons for the purpose of construction of houses. The colony was meant for providing residential accommodation to Satsangis i.e. the persons who professed the Radha Swami faith. The appellant purchased one of the plots measuring 499.98 Sq. Yds. bearing No. B-36, in the said colony from the society by means of sale deed dated 4-12-1968. Though the appellant started construction of house but he could not complete it because of paucity of funds. The appellant approached the respondent and told him that he wanted to sell the property for a consideration of Rs. 50,000/- The respondent agreed to the proposal put forward by the appellant. The market price of the land at that time was Rs. 30,000/ - and the cost of construction raised by the appellant was assessed at Rs. 20,000/-. The respondent paid the said amount of Rs. 50,000/- and the appellant delivered possession of the property to the respondent on 28-5-1979. Since then the respondent is in possession of the property. It was agreed between the parties that as and when full price of the property was paid to the appellant he would resign and withdraw from the membership of the society. The respondent was advised to apply for the membership of the society. It was further alleged that though there was no legal bar to the appellant transferring his rights in the said property, however, the respondent agreed to that course out of sentimental consideration. The respondent paid the entire amount of Rs.50,000/- to the appellant but the appellant gave a writing to the effect that he had received the amount of Rs. 50,000/ - by way of interest free loan. On that very date the appellant wrote to the society that his membership be cancelled and his share be transferred to the respondent. A sum of Rs. 5,000/- was paid to the society towards the charges for transferring the land in favor of the respondent. The respondent also paid a sum of Rs. 100/- to the society on 28-5-1979 as membership fee and also submitted a form prescribed for enrolment as member of the society. After entering into the agreement for the purchase of the property the respondent paid charges towards water bills etc. The appellant by letter dated 11-3-1980 wrote to the society withdrawing his request for cancelling his membership from the society and transferring his share in favor of the respondent. It was alleged in the letter that the appellant was withdrawing the offer because of disturbed family circumstances and he was not in a normal state of mind and had taken hasty decision under duress and that now he would like to construct his own house in the very near future. In these circumstances the plaintiff filed the present suit for specific performance.
3. The appellant contested the suit inter alia on the pleas that the suit had not been properly valued for the purposes of Court-fee; the suit was bad for non-joinder of the parties; there was no binding and concluded contract for the sale of the property in dispute and the appellant had received a sum of Rs. 50,000/- interest free loan from the respondent and the alleged agreement was without consideration; the possession of the property was never given to the respondent and the respondent had never been ready and-willing to perform his part of the agreement.
4. On the pleadings of the parties the following issues were framed:
1. Whether the suit has been properly valued for purposes of Court-fee? OPP
2. Whether the suit is bad for non-joinder of necessary parties? OPD
3. Whether there is a binding and concluded contract for the sale of the property No. B-36, Soami Nagar, New Delhi between the parties? OPP
4. Whether the defendant received Rs. 50,000/- as an interest free loan from the plaintiff and not as consideration for the sale of the property? OPD
5. Whether the plaintiff got letters written from the defendant under undue influence as alleged in Para 4 of the written statement? OPD
6. Whether the possession of the plot No. B-36, Soami Nagar, New Delhi was given to the defendant by the plaintiff on 29th May, 1975 as alleged in Para 3 of the plaint? OPP
7. Whether the plaintiff has been ready and willing to perform his part of the contract?
8. Whether the plaintiff is entitled to claim damages? If so, to what amount? OPP
9. Whether the plaintiff is entitled to interest? If so at what rate? OPP
10. Relief.
Issue No. 6 was later on amended as under -
"Whether the possession of plot No. B-36, Soami Nagar, New Delhi, was given to the plaintiff by the defendant on 28th May, 1979 as alleged in Para 3 of the plaint? "
5. Learned single Judge decided issues Nos, 1, 3, 6, and 7 in favor of the respondent. Issues Nos. 8 & 9 were decided against the respondent. Issues Nos. 4 & 5 were decided against the appellant, As a consequence of decision of issues Nos. 3, 6 & 7 the suit for specific performance of the agreement was decreed. It was declared that a sum of Rs.50,000/- had already been paid to the appellant by the respondent towards sale consideration of the property. The appellant was granted 2 months time to execute the sale deed.
6. Aggrieved by the judgment of the learned single Judge the appellant had preferred this appeal, which is under disposal.
7. We have heard the learned counsel for the parties. The first contention of the learned counsel for the appellant is that there was no concluded and binding contract between the parties for the sale of the property in question in favor of the respondent. It was alleged that the appellant had never agreed to sell the property to the respondent, On the other hand it was contended on behalf of the respondent that there was a concluded and binding contract between the parties and the appellant had received a sum of Rs. 50,000/- the sale consideration of the property.
8 .We have considered the relevant contentions of the parties. Admittedly the appellant had received a sum of Rs. 50,000 / - from the respondent. But the plea set up by the appellant was that he had received that amount by way of interest free loan from the respondent and it was not towards the price of the, property. The amount was paid by the respondent to the appellant on the following dates:
Rs. 10,000/- paid on 2-5-1979;
Rs. 5,000/- paid on 27-5-1979; &
Rs. 35,000/- paid on 28-5-1979
After the receipt of the amount the appellant wrote a letter on 28-5-79 to the society which is in the following terms: -
"Please refer to your letter No. - dated 28-5-79 I have to state as under: -
I have planned construction of my house on plot No. B-36, and had started construction as early as 1972 which can be verified from the approved plan. But due to non-availability of funds, I could not complete the construction.
Since I am an old Satsangi and do not wish to violate the Satsangi character of the colony by disposing of my property to a non Satsangi for the lure of money, I have, therefore, decided to sell the property on 'as is' condition to an other Satsangi friend and have already made a commitment to him in this regard, subject to, of course, the approval of the Society, In doing so, I am convinced that I am not committing any irregularity and also Param Guru Mehtaji Maharaj had approved of a Satsangi selling land to another Satsangi at the price fixed by the Society on payment of necessary charges.
The particulars of the person whom I wish to sell the land are: -
P. B. Capt. Chander Prakash Gupta, Profession: Senior Pilot in Indian Airlines; Income: Approximately 4500/ -p.m.
Initiated at Soami Nagar Branch Satsang P. B. Milkhi Ramji on 22-8-1972.
I am also aware that similar transactions have already been approved by the Society in the past.
As regards the question of the reversion of the plot to the Society as mentioned in the concluding Para of your letter is concerned, I may submit most respectfully that my property is not a vacant plot. I have, indeed, carried out construction, which can be seen. The question of reversion of the plot for the breach of condition for sale of the plot does not arise.
I have not the slightest doubt that as soon as the plot and my share is transferred to P.B.C.P. Gupta, he will take steps to complete the construction which presently is the object of the society.
I shall therefore be most grateful if per mission is granted to me to finalise the transaction and shall be glad to pay the Society any charges due from me in connection with the transfer of the property to P.B.C.P. Gupta.
I am enclosing herewith a cheque for Rs. 5,000/-. I have also advised P.B. Gupta to meet you personally.
Thanking you,
Yours affly.
Sd/-
(A. L. Suri).
House No. 102, Type IV,
Section 5B
Haridwar,"
9. This was followed by another letter dated 6-6-79, which is in the following terms: -
"In my letter dated 28-5-79, 1 have already requested that my share in the Society be transferred to Capt. C. P. Gupta and it follows there from that as soon as Capt. Gupta is enrolled as a member in my, place, I would cease to be a member of the Society. This position is acceptable to me.
However, if rules require that I should submit a formal resignation, I hereby tender the same from the membership of the Society in favor of Capt. C. P. Gupta subject, of course, to the condition that the transfer of my plot and share in favor of Capt. Gupta is approved by the Society.
All outstanding dues against me and processing charges for the transfer of the property have already been remitted to the Society and Capt. Gupta has already deposited the membership fee etc. If there is any other amount to be paid, Capt. Gupta may please be informed directly.
With hearty R. S.
Yours affly.
Sd /-
(A. L. Suri.) "
10. From the perusal of these letters it is quite clear that in these letters the appellant had stated that he had decided to sell the property to the respondent and he had requested the Society to transfer his membership in favor of the respondent. The respondent had also deposited the requisite fee and filled up prescribed form for becoming a member of the Society. In the written statement it was pleaded that the letters mentioned above were written by the appellant under undue influence and in fact these letters were got written by the respondent. No particulars of undue influence were given in the written statement. There is another letter dated 30-8-1979 (Ex.P-3) written by the appellant from Haridwar to the respondent which is to the following effect: -
"Dear Guptaji,
Hope this letter finds you all in good health and mood. Since all these days we met last, I was expecting to be intimated that society has permitted us to transact the sale deed. I had planned to come for the purpose in last week of July.
Will you please intimate what is the cause of this delay and what best we should expect now. I realise, you must be worried all about this, much more than myself and must have arranged loan and Building plans by now.
With best of wishes and regards for all.
Yours sincerely,
Sd/-
(Amrit Lal Suri).
30-8-1979."
11. By letter dated 15-3-1981 Ex. P.W. 315 the respondent was informed by the Hony. Secretary of the Society that the name of the respondent was registered at Serial No. 66 under the date 20-4-1978 in the register of waiting list of Society's prospective members. The plea taken by the appellant that he had written letters to the Society under undue influence does not stand established on the record. Firstly the particulars of undue influence were not stated in the written statement and moreover, there is no cogent reliable evidence on record to substantiate the plea of undue influence. The letter dated 30-8-1979 was written by the appellant to the respondent from Haridwar. It was stated by the respondent that the appellant delivered possession of the property on 28-5-1979 and since then he was in possession of the property. The case of the appellant is that he had never given the possession of the property to the respondent and the respondent had taken advantage of the situation when he was stationed at Haridwar and he forcibly occupied the house in his absence. The stand taken by the appellant does not appeal to reason. It is strange that no report with the police was lodged that the respondent had forcibly occupied his house. Moreover the appellant did not take any step so as to recover the possession of the property. Had it been a fact the appellant would have taken legal steps so as to dispossess the respondent from the property. In support of his contention that in a suit for specific performance it is for the plaintiff to establish that there was a binding and concluded agreement between the parties, learned counsel for the appellant has relied upon various authorities. The first authority relied upon by the learned counsel for the appellant is New Mofussil Co. v. Shankerlal Narayandas Mundade; AIR 1941 Bombay 247 wherein it was held that the contract is complete when all the conditions between the parties are settled. The next authority relied upon is Rudra Das v. Kamakhya Narayan; AIR 1925 Patna 259 wherein it was held that specific performance will not be granted where parties have intended that it was not to be considered to be a concluded contract until it has been confirmed by a third party.
12. The next authority is Bengal Coal Co. v. Prosanna Kumar wherein it was laid down that onus is on the
plaintiff to prove his case. Partial admission of receipt of money does not shift the onus.
13. There is no quarrel with the proposition of law laid down in these authorities that unless there is a concluded contract between the parties the plaintiff is not entitled to a decree for specific performance and the onus is on the plaintiff to prove his case.
14. We have examined the facts and circumstances of the case. The evidence adduced by the parties clearly and vividly proves that the respondent had been able to establish his case that there was a concluded and binding contract between the parties. The letters written by the appellant to the Society are quite clear and leave no manner of doubt that the appellant had agreed to sell the property to the respondent.
15. The next point urged on behalf of the appellant is that no consideration was accepted by the appellant for the sale of the property. It is submitted that the appellant had received a sum of Rs. 50,000/- only from the respondent as interest free loan and this was not towards the consideration of the sale of the property. On the other hand it was submitted by the counsel for the respondent that a sum of Rs. 50,000/- paid to the appellant depicted the sale price and not the interest free loan. According to the respondent the parties had agreed that the market price of the land prevalent at that time was Rs. 30,000/- the cost of construction raised by the appellant was to the tune of Rs. 20,000/Thus the respondent had agreed to pay a sum of Rs. 50,000/- towards the sale price of the property to which the appellant had also agreed. On this aspect the respondent has placed reliance on document Ex. P.W. 3/ 7 which is a certificate dated 20-1-1982 by the Society which reads as under: -
"This is to certify that as per Bye-laws of the Society, terms and conditions embodied in the sale deeds so far executed there under and as per terms and conditions in force in accordance with the past resolutions of the Managing Committee: -
(a) No plot holder is allowed to have a direct deal with the prospective buyer for the sale of his plot in SOAMI NAGAR COLONY and; and
(b) No plot holder is allowed to charge a price higher than Rs. 50/ - (Rupees fifty) only per sq. yard.
(c) All the plots in the Soami Nagar Colony are, otherwise, free-hold.
16. There is another certificate of the Society dated 11th April, 1982, Ex. D.W/3/1 which reads in the following terms:
"It is certified that in the Managing Committee meeting of the Delhi Dayalbagh Co-operative House Building Society Ltd. held on 7-2-1971, in Society's office, Soami Nagar, New Delhi-17, the following decisions were taken vide Resolution No. 9 as per minutes of the meeting: -
(a) No plot holder should be allowed to have a direct deal with a prospective buyer.
(b) No plot holder should be allowed to charge a price higher than Rs. 50/- per square yard.
(c) The Society will levy a commission of Rs. 10/- per square yard to enable it to build up its funds for the maintenance of the colony.
(d) All transactions should be carried out through the Society; plots should be allotted to only those persons who can start construction without delay.
Sd/-
(J. N. KORPAL.)
Secretary."
17. In the letter Ex. P-11 dated 28th May, 1979 which has been reproduced above it was stated by the appellant that by selling the property to the respondent he was not committing any irregularity and Param Guru Mehtaji Maharaj had approved of a Satsangi selling land to another Satsangi at the price fixed by the Society on payment of necessary charges.
18. Shri Jagan Nath Korpal, Secretary of the Society appeared as D.W.
3. In his statement he stated that in 1978-79 the maximum price at which the member could transfer his land was Rs. 50/- per sq. Yard. The appellant also admitted in his statement that the society had fixed the price of the land at Rs. 50/- per Sq. Yd. So from the evidence produced on record it is clearly established that the appellant could charge price @ Rs. 50 per sq. yards. Calculating the price @ Rs. 50/- per Sq. Yard of a plot measuring 499.2 Sq. Yards comes to Rs. 25,000 /-. Rs. 20,000 / - was agreed to be paid for the construction the appellant had raised on the plot and Rs. 5,000/ - was paid by the respondent as process charges for transferring the property in his favor. The respondent in his statement stated that in the receipt the appellant had mentioned that the amount of Rs. 50,000/- was given as interest free loan. The reason was that the appellant had told him that he was not a member of the society at that time and that as soon as every thing was regularised the respondent would be given another receipt showing the receipt of Rs. 50,000/- as price of the property. On the other hand the appellant made a statement in the following terms:
"It is correct that on 27-5-1979 the wife of the plaintiff met me and gave Rs. 5,000/- for processing charges for the transfer of the plot from me to the plaintiff. The money was given by her in cash to me. I obtained a bank draft of the amount in favor of the society. On the next day the plaintiff visited me and gave Rs. 3 5,000 / - to me at my house. I then gave consolidated receipt for Rs. 50,000/- to the plaintiff which included Rs. 5,000/- which had been paid towards processing charges of the society for the transfer of the plot. Ex. P- 11 was given by me in the office of the society. My two brothers live in Delhi. It is correct that the society has fixed the price of the land @ Rs. 50 / - per sq. yards."
19. The explanation given by the respondent that the amount of Rs. 50,000/- was not given by way of interest free loan and in fact it was given towards the sale price of the property seems to be more plausible and convincing. The appellant himself admitted that the price of the land was fixed at Rs. 50/- per Sq. Yard and out of Rs. 50,000/- were received by him towards processing charges of the society for transfer of the plot. The conclusion is inescapable that the appellant received the sum of Rs. 50,000/- towards the sale of the property.
20. The last submission of the learned counsel for the appellant is that the appellant could not sell the plot to the respondent as he was not a member of the society. In this connection reliance is placed on Bye-Law 51 of the Bye-Laws of the Society which reads in the following terms:
"No member shall be permitted to transfer, sell or mortgage his house to any person other than the members of the society or the society itself."
It was contended that there was absolute bar on the appellant for transferring the property to the respondent and as such the alleged agreement, if any, was void ab initio. On the other hand learned counsel for the respondent submitted that there was no condition precedent to the effect that the property could be sold only to a member of the society. The respondent could become a member of the society even after entering into an agreement to sell and sale of the property.
21. We have given our thoughtful consideration to this matter. Ex. D-1 is the sale deed executed by the Society in favor of the appellant. The relevant clauses are clauses (2) and (3), which are as under: -
"Clause (2) -
The purchaser member will continue to be the member of the vendor society. If the purchasing member proposes to sell or transfer his house or plot, he/she undertakes to sell or transfer it to or through the Society. If the Society does not purchase the house within six months at the prevailing market price, the member will be at liberty to dispose it of as he/ she likes."
"Clause (3) -
The successor will have also to be a member of the Vendor Society. If he/she does not become a member of the Society he/she shall sell the house or plot to or through the Society at the prevailing market price. If the society does not purchase the house within six months, the successor will be at liberty to own it as any other member or dispose it of as he/she likes."
These clauses empower the appellant to sell or agree to sell the plot if he so liked. The clause show that it was not a condition precedent for the prospective purchaser that he would become a member of the Society at the time of entering into the agreement of sale or even at the time of registration of the sale deed. He could become a member subsequently. If he did not become a member of the Society, then the consequences laid down in the above said clauses would follow. Even otherwise from the material placed on record it is clearly established that the respondent was competent to purchase the plot. Clauses (5) and (9) of the Bye-Laws of the Society are in the following terms: -
"Clause (5) -
(i) Any person shall be eligible to be a member of the Society provided: -
(a) he is a follower of Radha Soami faith and a member of Radha Soami Satsang affiliated to Radha Soami Sabha, Dayalbagh, Agra;
(b) he is a resident in Delhi, New Delhi or Delhi Cantonment;
(c) his written application for membership has been approved by a majority of the Managing Committee;
(d) his age is more than 18 years, except in purchasing member proposes to sell or the case of minor heir of a deceased member;
(e) he is not a member of any other house building society;
(f) he or his wife (she or her husband in case of a woman) or any of his/her dependents does not own a dwelling house or a plot for building a house in Delhi;
(g) directly or indirectly he does not deal in purchase or sale of house or land for construction of houses either himself or through any of his dependents;
(h) he has carried out the provisions of Bye-Law II.
(ii) every person seeking membership of the Society shall sign a declaration to the effect that he or his wife (she or her husband) or any of his/her dependents does not own a dwelling house or plot in Delhi and that he/she is not a member of any other co-operative house building society.
(iii) Every member on admission shall pay Rs. 10/- as admission fee which shall not be refunded in any case.
(iv) When a person's application has been accepted by the Committee and he has paid his admission fee and first Installment of his shares, he shall be deemed to have acquired all the rights and incurred all the obligations and liabilities of a member of the society as laid down in the Co-operative Societies Act, the rules made there under and these Bye-Laws.
Clause (9)-
(1) A member or the nominee or successor of an ex-member may transfer his shares to another member or applicant qualified under Bye-Law 5 and approved by the Committee or to a share transfer fund created by the Society out of its profits and shall then be paid the value of his shares, less any sum due from him to the Society. No transfer of share or interest shall, however, be made unless a member has held such shares for not less than one year but the condition of bye-law 5 will not be applicable to the nominee or legal heir of the deceased member.
(2) The value of the share shall in no case be more than the sum received by the Society in payment thereof.
(3) A member on withdrawal, whether voluntarily or through the action of the Society shall subject, however, to the Rules of the Society, have no claim on the Provident Fund or on any other funds or property of the Society of any kind."
The application of the respondent for becoming a member of the society was accepted by the Committee and he had paid the admission fee and the first Installment of his share and as incurred such he had acquired all the rights and all the obligations as a member of the Society. In this connection the statement of Sh. Jagan Nath Korpal, D.W. 3, Secretary of the Society is very relevant. He deposed that the Society had received Rs.5,000/- for transferring the membership in the society and the plot of land to the respondent. He further stated that the respondent was fully qualified to become a member of the Society and the only impediment was the present suit filed by him. He further deposed that the Society had got 174 plots and the members of the Society were 174. A member of the society could not transfer his share to a non-member. A member of the Society could not sell the plot to another member of the society because each member could own only one plot. A member could sell the plot to a prospective member. He further deposed that the Society had a waiting list of prospective members. In reply to a question as to how could a member sell his plot to a prospective member, he replied that the Society had a waiting list of prospective member. After the waiting list was scrutinised sales could be recommended. He further deposed that the membership of the Society could not be transferred without transferring the plot. By resolution dated 12-5-1978 the application of the respondent for being made a member of the Society, which was at Serial No. 66, the name of the respondent was put on the waiting list of the persons who were desirous of becoming members of the Society. He further stated that all the plots of the Society had been allocated to members. The plots could be made available only to people who were eligible. In order to be eligible one has to be a member of the Society. By 'Member of the Society' he meant a member on the waiting list. Unless one was on the waiting list he was not to be considered for allotment of land in Soami Nagar.
22. In the letter dated 28-5-1979 written by the appellant to the Society it was mentioned as under: -
"Since I am an old Satsangi and do not wish to violate the Satsangi character of the colony by disposing of my property to a non-satsangi for the lure of money, I have, therefore, decided to sell the property on 'as is' condition to another Satsangi friend and have already made a commitment to him in this regard, subject to, of course, the approval of the Society."
Ex. D.W. 3/ 5 is a letter written by the Society to the respondent wherein it was mentioned that in the Register of waiting list of the prospective members of the Society his name was registered at Serial No. 66 under the date 20-4-1978. There is another document Ex. P. W. 3/7 A an extract of the meeting of the Managing Committee of the Society held on 28-1-1982 which reads as under: -
ITEM NO. 6:
"Captain C.P. Gupta's case was discussed. In response to a request by Capt. Gupta a certificate was issued by the Secretary indicating that Capt. Gupta fulfills the conditions and is eligible to be a member of this society and also own a plot/ property in the Soami Nagar Colony, New Delhi and to purchase it from or through the Society as permitted by its Bye - Laws.
Confirmed that the certificate issued was in order and that Capt. Gupta is eligible to be a member of the Soami Nagar Colony, New Delhi and to purchase it from or through the Society as permitted by its Bye-Laws."
23. From the above set of evidence it is patently clear that the respondent was a prospective member and was eligible to purchase the property. Reliance is also placed by the learned counsel for the appellant upon an authority of this Court in the case of Prakash Chander v. Dev Datt Malik(1985) 27 Delhi LT 23 in support of his contention that the Bye-Laws of the Society prohibited the appellant to transfer the plot in favor of a person who was not a member of the Society, and as such the agreement was void ab initio. The facts of Prakash Chander's case (supra) were that a suit for specific performance of contract was filed on the allegations that the plaintiff had entered into an agreement with the defendant for the purchase of plot of land. The plea set up by the defendant was that the plaintiff was not a member of the Co-operative Society and the plot could not be transferred by the defendant in favor of a non-member. Reliance was placed by the respondent on clause 6(b) of the Perpetual Sub-Lease which reads as under: -
Clause 6(b):
"The sub-lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the industrial plot to any other member of the lessee except with the previous consent in writing of the Lesser which he shall be entitled to refuse in his absolute discretion."
Interpreting the above said clause it was held that there was an absolute prohibition of transfer of the industrial plot in favor of a person who was not a member of the lessee. The only transfer which is permitted was a transfer to another member of the lessee, but such transfer could be effected only after first obtaining the permission of the Lesser namely - the President. This authority is not applicable to the facts of the present case. In the sale deed Ex. D- 1 which has been executed in favor of the appellant clauses (2) and (3) reproduced above do not prohibit the appellant to transfer the plot in favor of the person who is not a member of the society. Regarding the bar created by the Bye-laws we have already held that from the evidence produced on the record it is established that the respondent was a prospective member and was eligible to purchase the property. No other point was urged before us.
24. In the result we see no merit in this appeal. The same is dismissed leaving the parties to bear their own costs.
Appeal dismissed
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