High Court Division

Civil Appellate
Jurisdiction M r. Justice
Ruhul Islam
Appeal from Appellate Decree No. 1188 of 1965.
Appeal against the decree of Iqbal Hossain Chowdhury, Sub-Judge, Additional Court of
Zilla Noakhali dated the 16th day of June, 1965 in Title Appeal No. 124 of 1963,
affirming the decree of Mr. D.N. Chanda, Munsif, 2nd Court, Noakhali dated the 15th
day of May 1963 in 0.
C. Suit No. 52/262 of 1362/1962.

Seru Mia ----- Defendant Appellant. CZ,

Judgement Date : January 08, 1973

Judgment
This appeal is by a defendant in an action for specific performance of contact. Plaintiff-respondent 1
and 2 instituted the O.C Suit No. 52/262 of 1962 which was decreed by the learned Munsif, 2nd
Court Noakhali by his judgment and decree dated 15th May, 1963 and those were affirmed by
the learned Subordinate judge, Additional Court, Noakhali in Title Appeal No. 124 of 1963 by his
judgment and decree dated 16th June, 1965. Against that decision the present appeal was
preferred.

2. The plaintiff's case in short is this, that suit land belonged to pro-defendant who sold it to the
principal defendant on 21st Jaistha 1366 B.S. for a consideration of Rs. 1250/-and on the same date
an agreement was concluded between the parties to the effect that the principle defendant would
reconvey the suit land to the pro-defendant on repayment of the consideration money within 1376
B.S. This agreement was duly registered. Thereafter the vendors sold the suit land along with the
right of reconveyance of Rs.3000/-on the 5th Ashar, 1368 B.S. corresponding to 28th June,1961.
Thereafter the plaintiffs paid Rs.1750/- to the original vendor out of Rs. 3000/- and the balance of
Rs. 1250 was offered to the vendee according to the terms of the agreement and demanded
reconveyance but the original vendee refused to reconvey the suit land to the plaintiff's. Hence the
suit.

3. The defendant No. 1- The original vendee appeared and contested the suit by filling a
written statement, wherein all the allegations of the plaintiffs were denied and it was contended,
inter alia, that the kabala dated 5th Ashar, 1368 B.S. by which the plaintiffs alleged to have
purchased the suit land from the vendor is a benami documents and that there was a new contract
between the vendor and the vendee by which the vendor agreed to take a further amount of Rs.
1000/- and executed Nadabi deed and, according to that agreement the vendee paid Rs. 600/- to
the vendor and the balance of Rs. 400/- was offered to him but on various pretexts the vendor
neither accepted the balance amount nor executed the Nadabi deed. It was further contended by
the defendant that a criminal case was brought by him against the vendor and the said case
ended in a compromise. Accordingly, the present suit filed by the plaintiffs in liable to
dismissed.

4. The learned Munsif on consideration of the evidence both oral and document led by the parties
held that the deed of transfer executed on 5th Ashar, 1368 B.S. is not a benami documents in
favour of the plaintiffs and that the plaintiffs are bonafide purchasers for value. The learned Munsif
on examination of the recitals in the agreement Exhibit 2 held that the right of reconveyance was not
limited with the vendor only, and the right was assignable. With regard to the fresh agreement
between the vendor and the vendee

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 as claimed by the principle defendant the learned Munif did not accept the same. In appeal by the
principal defendant, the learned Subordinate judge affirmed the decision of the learned Munif and
dismissed the appeal. With reference to the recital in Exhibit 2 namely, the agreement for reconveyance
the learned Subordinate Judge agreed with the view taken by the Trial Court that the right of
reconveyance was not limited within the family of the vendor. The learned Subordinate Judge accepted
the case of the plaintiffs that they are entitled to have a reconveyance of the disputed land on specific
performance of contract as claimed.

5. Mr. Abdul Hamid, the learned Advocate representing the appellant submits that the decision of the
Courts below in allowing the decree in favour of the plaintiffs is based on erroneous construction of the
recital in the deed of agreement , Exhibit 2. The learned Advocate further submits that the Courts below
ought to have held that the plaintiffs being assignee of the right of reconveyance which is limited within
the family of the vendor, are not entitled to enforce the contract, inasmuch as the intention of the parties
is that the vendor and his heirs alone would be given the right of re-purchase of the property. He also
submits that the Courts below should have refused reconveyance of the suit land, inasmuch as there
was a fresh contract between the parties, that is principle defendant and the pro-defendant No. 3 for
transfer of the suit land to the principle defendant on acceptance of further amount of Rs. 1000/- out of
which the sum of Rs. 600/- was already paid. It has been further contended by the learned Advocate
that the question of benami has not been properly gone into by the Courts below. On careful
examination of Judgments of the Courts below, it appears to me that excepting the contention of the
learned Advocate relating to the construction of the deed of agreement Exhibit 2, the other submission
of the learned Advocate are concluded by findings of facts. The learned Subordinate Judge elaborately
examined the evidence adduced by the parties and arrived at a clear finding that the principal defendant
failed to establish his alleged new contract with the pro-defendant , namely the vendor. This finding
cannot be re-opened in this second appeal. Similarly the question of benami also has been considered
by the learned Advocate Judge. The learned Advocate appearing for the appellant can not point out any
illegally committed by the learned Subordinate Judge in arriving at the finding that the transfer in favour
of the plaintiffs by Exhibit-1 was not a benami transaction. Apart from this, even a benamder can
maintain a suit for reconveyance in place of the principal. Therefore, I do not find any defect either
procedural or legal in the investigation of the benami as alleged by the defendant.

6. The learned Subordinate Judge on elaborate discussion of the Agreement found that the right of
reconveyance accorded by the principal defendant is not restricted to the vendor and his heirs only and
the said right is assignable. The learned Advocate appearing for the appellant also submits with
reference to the recitals in the deed of agreement that the right given by the vendee in favour of the
vendor was limited to the promisee or his legal heirs and the same was not assignable and as such the
transfer in favour of the plaintiffs is not a valid one; and on the basis of such purchase the plaintiffs are
not entitled to maintain the suit for specific performance of contract claiming reconveyance. He also
referred to the relevant portion of the agreement in support of his contention which is quoted below:

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7. On the basis of the above recital the learned Advocate submits that the right conferred under
agreement was neither transferable nor assignable and according to the terms of agreement this right
can be exercised by the vendor (promise) or his legal heirs. In the absence of any authority granted to
the promisee to transfer or assign the right to any person outside the family, the right could not be
legally assigned and as such the plaintiffs did not acquire the right of roe conveyance. Therefore,
according to the learned Advocate, the suit ought to have been dismissed by the Courts below on the
ground that the plaintiffs have no locus standi to institute the suit. The learned Advocate however failed
to elucidate the proposition of law submitted by him, and he also failed to cite any authority to support
the same.

8. Mr. M.A. Rouf, the learned Advocate appearing for the respondents submits that the contract of re
purchase under the agreement is a contract of completed transaction, in other words, is an executed
contract which is assignable under the law. In the absence of any express of implied condition in the
agreement limiting this right within the family of the promise, the right of purchase granted in favour of
the vendor was assignable and as such it was legally and validly assigned in favour of the plaintiffs.

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Therefore, the plaintiff has locus standi to maintain the suit. In support of his submissions the learned
Advocate referred to a decision of the Dacca High Court in the case of Ratish Chandra Mridha Vs. Hera
Krishana Goldar and others (1963) 15 DLR 634, wherein it has been clearly held that the benefit arising
out of a contract of repurchase is assignable. I have carefully gone through the decision. It appears
that the learned Judges very elaborately discussed this question with reference to a number of
authoritative decisions of different superior Courts including a decision of the Privy Council tracing out
the legal foundation of this right. The learned judge referred to sections 40 and 54 of the Transfer of
Property Act Section 40 provide:

"Where, for the mere beneficial enjoyment of his own immoveable property third persons has,
independently, of any interest in the immoveable property, of another or of any easement thereon, a
right to restrain the enjoy merit in a particular manner of the latter property, or

"Where a this person in tended to the benefit of an obligation arising out of contract and annexed to
the ownership of immoveable property, but not amounting to an interest there in or easement thereon,
such right or obligation may be enforced against a transferee with notice theron...."

Section 54, inter alia, provides that:

"lt does not, of itself, create any interest in or charge on such property"

9. In the above mentioned case Ratish Chandra Mridha Vs Hara Krishna Goldar an agreement between
the vendor and the vendee contained a provision that the vendee would be bound to reconvene the
property to the vendor. These was no provision for assignment. On the haste of sections 40 and 54 of
the Transfer of Property Act the learned Judges held that the contract of rag purchase does not create
an interest in the land, but that right being a right in the vendor and an obligation in the first vendee, is
annexed to the ownership of the land and this right is assignable, such right is normally assignable only
by express or implied contract this, right is made dependent upon something personal or special; In
this case the learned Judges, amongst others, referred to a decision of the Judicial Committee of the
Privy Council in the case of Sakalagama Nayudu and another Vs. Chinua Manuswami Nayakar reported
in A.I.R. 1928 (P.C.) page 174. In the case before the Privy Council, father on behalf himself and as
guardian of his minor son sold a village belonging to the family for a sum of Rs. 10,000/. On the same
day the parties executed, a counter-part document by which it was provided that the vendee should
recovery the said village to the father, after a period of thirty years from that date i.e., in the cultivation
season of the thirtienth year, in case the father wiched to have the village again and upon his paying to
the vendee the sum of Rs. 10,000/. The "counterpart document" did not contain the name of the son.
After the death of father the son sold the village to the plaintiff for a consideration of Rs. 19,200/e. This
deed contained not only conveyance of the village but also an assignment of the son's right to the
benefit of the counterpart document'. It has been held that the "counterpart document" was a
completed contract, that It must be deemed as executed in favour of both father and son; and that the
benefit of the contract could be validly assigned.

10. In my opinion, the question raised in this can get complete answer from the decision of the
Judicial Committee of the Privy Council. In that case, the right of reconvoyance was accorded to the
father only and without any specific mention about assignment, but the Judicial Committee held that
this being a completed contract i.e. executed contract in respect of land, the right was assignable. The
decision mainly rested on section 130 of the Transfer of Property Act. Following the principle of law laid
down by the Judicial Committee, Division Bench of the Bombay High Court in the case of Bisbweswar
Narsabbatta Cadduda Vs. Durgapur lrappa Bhatkhar in A.I.R. 1940 Bombay page 339 held that option
repurchase in prima facie assignable though it may be so worded as to show that it was to be permit to
grantee and not assignable.

11. Section 130 of the Transfer of Port petty Act provides that an "actioner claim" is transferable.
When this section is read with reactions 40 and 54 of the Transfer of Property Act there remains no
doubt that the right of re-conveyance of immoveable property though not an interest in the land, is an
interest very much annexed to the ownership of the land; and this right is an actionable claim in the
vendor which is transferrable. Therefore, there is no substance in the submissions of the learned
Advocate that in the absence of an authority for assignment the right of reconvoyance as provided in
the Agreement (Ext. 2) could not be validly assigned. This right apart from Its legal basis as provided in
the contract, having been

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recognised in the different provIsIons of the Transfer of Property Act and made transferable, or
assignable, it comes into existence as a legal consequence of the transaction between the parties;
and it exists also independently, that is to say, it is not dependent on the authority from the
promiser (vendor).

12. The Supreme Court of Pakistan took a step further in giving the legal cloak to the right
under a contract of sale of line, moveable property which is very much annexed to the ownership.
The Supreme Court following the English principles of law treated such right at par with an equitable
estate of the vendee in the land covered by the contract. This view has been taken by the
Supreme Court of Pakistan in the case of Joydeb Agarwalla Vs. Baitulmal Karkhana Ltd. (1964)
16 DLR (SC) 706; P L D. 1965 (SC.) page
37. Wherein Inca. Lordships while considering plaintiffs claim for compensation money under
an agreement for sale of land which had been compulsorily acquired by the Government, followed
the English principle of law creating Wilkes "equitable estate" in the land comprised in the contract of
sale sane held that the vendee acquired an equitation estate in the land compelled in the contract of
sale. In this context the Supreme Court observed:-

"The Specific Relief Act represents a modification of a number of principles derived from a long
series of precedents, and the established practice of the English Courts of Equity for several
centuries. These principles are not to be regarded as being foreign to the Act, merely because it
is the statute law of a country other than England. They are to be treated as of the essence of
the Ace; in its application to cases arising thereunder. Otto of these principles, of respectable
antiquity, and universally accepted, is that of the creation of an equitable estate, by the making
of a contract for sale of immoveable. The ascertainment and enforcement of such equitable
estates forms the main burden of the Specific Relief Act."

13. In this context a decision of the Privy Council in the case of Ardeshir H.Mama Vs. Flora
Sassoon
A.I.R. 1928 Privy Council Page 208 may be referred to. From this decision it appear that the
Judicial Committee of the Privy Council, applied the Rules and Practice of the English Law in
relation to the doctrine of the specifies performance, in a matter arising out of suit for specific
performance of contract. Their Lordships gave the following reasons for using the English Rules and
Practice in connection with a matter requiring adjudication under the Specific Relief Act 1S77 and in
particular, or its Part 11, Chapter 2, which deals with the specific performance of contracts. The
relevant portion of the judgment is quoted below.

"The answer to this question depends upon the true constructor and effect of the Specific
Relief Act, 1977 and, in particular, of its Part 11, Chapter 2, which deals with the specific
performance of contracts. The Act, like the Indian Contract Act, 1872, is a Code. The chapter in
question is a codification with modifications deemed to be called for by Indian conditions and
procedure of the existing Rules and Practice of the English Law in relation to the doctrine of
specific performance. In the present case it will aid the interpretation of the relevant sections to
have in mind what the English yawn on which the Act is based was in its origin and is Its fullness
at the date of codification. Even a summary account of that system necessarily incomplete and
quite cites monetary will serve, as their Lordships believe, to throw a light upon certain provision of
the Specific Relief Act, from lack of which full appreciation of their meaning has not consistently
been manifested.

"There Is another decision of the Dacca High Court in the case of Galam Ali Kazi Vs. Saijaddin
Howlader and another reported in Dacca Law Cases page 246, wherein a Single Judge following
a number of authorities held that specific performance of contract may be enforced by the
representative in interest except in cases where the contract prohibits assignment of the right.

14. From the decisions discussed above, it is very clear that a right under a contract of sale or
contract of reconvoyance, for all practical purposes, subject to the limitations put under sections 40
and 84 of the Transfer of Properly Act, stands at par with "equitable estate" of the vendee under
a con-tract of sale of immoveable property. This right though not an interest in the land, is very
much annexed to the ownership of the land, and this right is transferable or assignable. Of
course, in some decisions it has been opined that by express of implied terms in the agreement
between the parties this right may be limited within the family of the pros miter. Therefore, in the
present case in the absence of even such limitation in the agreement the right of reconveyance
was assignable; and the same was rightly and validly assigned to the plaintiffs. As such the plaintiffs
have locus standi to institute the suit for specific performance of contract against the original
vendee. I do not find any substance in any of the submissions made by the learned

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Advocate for the appellant.

In the result, the appeal falls. Accordingly, the appeal is dismissed with cost. The judgment and decree
passed by the lower appeal late court are hereby affirmed.

End.

BLR 1973 (HD) 1 DLR 31 (HD) 159

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