Andalammal vs Alamelu Ammal

Anantanarayanan, J.—The appeal is by the plaintiff in a suit for specific performance, in which it is fairly clear that the trial court came to the

correct conclusion in decreeing the suit as prayed for. The matter went up in appeal to the learned Subordinate Judge who allowed the appeal and

reversed the decree, but whose ground therefore are extremely difficult to follow. Briefly stated, the facts are these. This suit property originally

belonged to one Venkataswami Naidu, who is not a party to this suit, who sold it for Rs. 500 on 14-5-1951 to the defendant (respondent) on the

same day the defendant executed a registered resale agreement Ex. A. 1, agreeing to reconvey the property for the same price of Rs. 500 within a

period of six years therefrom to Venkataswami Naidu or his heirs. Venkataswami Naidu assigned this agreement to the plaintiff (appellant) on 25-

1-1956 for a consideration of Rs. 500. As the learned Subordinate Judge himself points out, upon the authority of Narasinggerji Gyangerji v.

Papuganti Parthasarthi, 1921 MWN 519.

a right to reconveyance of land is a property, and not a mere right to sue; and can be attached and sold;.

Actually, we have the authority of the Judicial Committee itself in AIR 1928 174 (Privy Council) for the view that such a document executed on the

date of sale itself by the purchaser undertaking to reconvey the property to the vendor after a period, constitutes a con tract enforceable by any

assignee of the vendor. The plaintiff, by virtue of the assignment in her favour, demanded a reconveyance from the defendant, and the defendant

received a notice on 1-3-1956, but did not comply with the demand. As I stated earlier, the learned District Munsif decreed the suit, and it is the

learned Subordinate Judge in appeal, who has held that the agreement, to reconvey could not be validly assigned to plaintiff, and that plaintiff could

no enforce her rights.

The learned Subordinate Judge seems to proceed, as far as I can gather from his judgment, which is not particularly clear, that (1) the agreement

could not be enforced by plain tiff because of the language used in the document of reconveyance restricting the right to Venkataswami Naidu and

his heirs and (2) because there was a lease back of the property to Venkataswami Naidu by the vendee, and Venkataswami Naidu fell into arrears

of rent, for which she defendant had to file a small cause suit later, and to obtain a decree. The argument here appears to be two fold first of all,

this is claimed to be a fraud prepetrated by Venkataswami Naidu, because he knew that he was due to pay these debts when he assigned the

contract of reconveyance. The learned Judge observes ""So the plaintiff who claims under a fraudulent document which is void, cannot get any

assistance from a court."" Secondly, the learned Subordinate Judge refers to S. 7(1) of the Madras Act 1 of 1955, and considers that the transfer

of the right of reconveyance falls within the mischief of this section.

It appears to me to be very clear that the first appellate court was totally erroneous in its conclusions in this matter. The only ground which

seems to merit any serious consideration, in favour of the view taken by the first appellate court, is the ground that the language of the agreement of

resale itself restricts the right to Venkataswami Naidu and his heirs (varsugal). I have carefully considered the language, and, the construction of the

relevant Tamil clause. I am unable to fired that an such interpretation is warranted; all that, the clause Seems to imply is that all rights under

document could be field by Venkataswami Naidu and his heirs (Varsugal). There is absolutely nothing to show that the rights were to be held

exclusively by the vendor in whose favour the defendant executed this document, and were not assignable. Under the law, such a right could be

definitely assigned, and It could even be argued that, under the very clause aforesaid, the right to assign was included as a right held by

Venkataswami Naidu and his heirs. The assignment in favour of the plaintiff (appellant) cannot be resisted by the defendant upon any such ground.

The other grounds are hardly intelligible, and do not need any discussion. There is Absolutely no question of any fraud in this case, and the

learned Subordinate Judge seems to have misdirected himself with regard to the legal principles applicable to file facts. There is nothing prevent a

vendor of property, who has a right obtain a reconveyance from assigning that right, notwithstanding the fact that he is a lessee n respect of the

same property, and that some cuts are due. A contract of lease is totally a different matter, and the law adequately provides for the enforcement of

those obligations. Again I am quite unable to see how S. 7(1) of Madras Act I of 1955 can prevent the plaintiff-appellant (assignee) from enforcing

the right obtained by the assignment. First of all, S. 7(1) refers to a transfer of ""immovable property"" and the section might have to he strictly

construed. More importantly, it is limited to a presumption which applies to the transferor alone. I know of no principle of law, including any part of

Madras Act I of 1955, which can inhibit or prevent a third party from obtaining an assignment, merely because the vendor who assigned the right

to obtain a reconveyance, was also a lessee who owed some arrears. It is true that Venkataswami Naidu is not a party to the present action. But,

obviously, upon the facts as stated by me, he would be estopped from claiming that his assignee could not enforce the right to reconveyance of

which he took the assignment.

In this view, the second appeal succeeds, and the decision of the first appellate court is set aside, the decision of the first court (District Munsif)

being restored. The costs as originally awarded by the first Court will stand, but, otherwise the parties will bear their own costs throughout. No

leave.

Appeal allowed.