- (1.) Plaintiffs are in appeal before us. Plaintiff No. 1 was a tenant in a part of the premises in question, which belonged to Montu Mary Pinto, since deceased. She died in 1974. She executed a Will and last testament (Exhibit P-2(2A)) on or about 25-4-1972 whereby defendant No. 1 was appointed as the sole executor. The relevant clauses of the said Will are: "After my death the executor of this Will shall take possession of my entire properties and manage them. He shall also obtain Court probate upon this Will after my death, and sell away my said properties for the best price possible to others. He shall minus the expenses met by him for obtaining the probate etc. and divide the balance sale price amount unto four equal shares and pay one such share out of the same to my son Staneley T. Thomas alias Stanley Pinto and another such share to my son Victor L. Pinto and obtain receipts from them. He shall further pay of his own share to each of his own children who are living now and who will be born to him hereafter Rs.100/- (one hundred) each and keep the rest of the amount for himself and he shall also pay out of the share amount of my said daughter a sum of Rs. 600/- (Six hundred) to her son Sunil Rodrigurs and pay also Rs. 100/- (one hundred) each to each of her living children and also to those who may be born to her hereinafter and pay the balance left over to my said daughter. That if my said heirs desire to partition my property among themselves after my death, the executor shall consent to it and do so by the help of two independent arbitrators and divide them into four equal lots as decided by the arbitrators and grant each such lot to each one of my said heirs who shall each inherit the respective properties absolutely with entire right. But in these circumstances the amounts mentioned to be paid out as stipulated hereabove shall be paid by the concerned holders of the property shares."
(2.) Indisputably the said Will was probated. Defendant No. 1, however, as executor or otherwise did not sell the property immediately. While he was toying with the idea of alienating the suit property, the plaintiff-appellant who is a practicing advocate and whose advices had been sought for as regards possible legal impediments, if any, in relation thereto, offered himself as a willing purchaser. A large number of correspondences passed between the parties. The evidence on record shows that the plaintiff No. 1 drafted the agreement for sale and handed over the same to defendant No. 1 who made corrections therein. On or about 4-12-1979, an agreement of sale was entered into between the parties, paragraph 1 whereof is in the following terms: "That in consideration of second party agreeing to pay to First Pay a total price of Rs. 1,23,750/- (Rupees one lakh twenty three thousand seven hundred and fifty) only, the First Party for self and as executor hereby agree to convey the property described in the schedule hereto subject to ratification by the co-heirs to terms hereinafter appearing." (Emphasis supplied)
(3.) It appears from the records that the plaintiff advised defendant No. 1 to obtain power of attorney from the other legatees so that all of them can execute the deeds of sale jointly. Two such draft sale deeds were prepared; one to be executed in favour of plaintiff No. 1 and another in favour of plaintiff No. 2 who was the nominee of the plaintiff No. 1.;