Bipin Behari Deb vs Masrab Ali and Others

G. Mehrotra, J.—This is plaintiffs appeal, against; a decision of the Subordinate Judge, Cachar, Silchar affirming in appeal decision of the Munsiff of Hailakandi. The plaintiff brought a suit for the specific performance of a contract of sale of land measuring 6 kears 2 powas in the portion of dags No. 5, 6, 7, 10, 76 and 75 of Rule 8. surveyed patta No. 1 excluding some land. The plaintiff''s case was that one Sri Mahendra Chandra Singh, was an occupancy tenant in respect of the land in dispute.

He sold his jote right to the main defendant Masrab Ali who is file contesting defendant before me, for a consideration of Rs. 700/- under a registered sale deed dated the 7th March 1953 and; gave him delivery of possession. There was a separate agreement under which Mahendra Chandra Singh was entitled to get back the property from the vendee on payment of the consideration money within five years of the date of the transfer.

The right to get a reconveyance of the land under the contract was available to the heirs of Mahendra Chandra Singh also. This right of reconveyance under the contract has now been sold to the present plaintiff and the plaintiff as the purchaser of the aforesaid right has brought the suit for the enforcement of the contract of reconveyance. The suit was defended on various grounds.

The Munsiff dismissed the suit on the ground that the transfer of the land by Mahendra Chandra Singh to the contesting defendant itself was void in view of the provisions of Section 20 and 36 of the Assam (Temporarily Settled Districts) Tenancy Act 1935 (hereinafter called the Act''). In view of his decision on this issue the Munsiff did not enter into the other issues. On appeal the lower appellate court came to the conclusion that the transfer without the consent of the landlord was not void but was voidable and not binding on the landlord.

Ho has not thus agreed with the finding of the Munsiff that; the contract for reconveyance of the property was hit by See. 23 of the Contract Act. Ho has however, held that the contract permitted resale of the property by the vendee to the vendor or his heirs. He could not sell the property to a stranger and thus the assignment of the right to reconvey in favour of the plaintiff could not be enforced by him. On this ground he affirmed the decree of the Munsiff. The plaintiff has henceforward come up to this Court in appeal.

The main point urged in file appeal is that the contract for reconveyance is assignable and the assignee could enforce the contract u/s 23 of the Specific Relief Act.

Section 23(b) which is the relevant provision in the present case, reads as follows:

Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by --

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(b) the representative in interest, or the principal, of any party thereto provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where tin; contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed.

Under this sub-section the representative in interest which includes a transferee, has got the right to enforce the contract of reconveyance unless there is anything in the contract providing that such a right could not be assigned.

The lower appellate court has relied upon the ruling of the Bombay High Court in the ease of Harkisandas Bhagwandas Vs. Bai Dhanoo, I shall deal with this case later. But in view of the clear provisions of Section 23(b) of the Specific Relief Act, a contract for reconveyance can be enforced by the transferee unless there is some prohibition in the contract itself. The case cited by the court below has been distinguished in a subsequent decision by the Bombay High Court in the case of Vishweshwar Narsabhatta v. Durgappa Irappa, Air 1910 Bom 339.

It cannot be disputed that a trasferee of a contract for reconveyance can enforce the contract in the absence of any contract to the contrary and that view is supported by, a number of decisions, namely, the cases of Ali Mistri and Another Vs. Kayem Ali Sheikh and Others, Rashid Ali v. Darparam Namasudra AIR 1954 GAU 95, Sakalaguna Naidu v. Chinna Munnuswami Nayakar AIR 1928 P. C. 174 and Vishweshwar Narsabhatta Gaddada Vs. Durgappa Irappa Bhatkar, to which I have already referred.

The counsel for the respondent has very strenuously contended that there is a provision to the contrary in the contract in question. It will be necessary to quote the relevant terms in the contract itself. It is not disputed that the translation which has been supplied to mo is correct. The relevant terms of the contract are as follows:

If you want to get back the jote right and possession in the said lands in future, for the same price, I agree hereby that, if you pay the entire price at any time on any day within five years from today, I shall execute a deed of reconveyance in your favour in respect of the jote right and possession in the said lands. If I do not do so voluntarily, you will be entitled to get the same executed from me in accordance with law on the strength of this agreement.

Along with the sale deed there; was Anr. agreement also which gave right to the heirs of Mahendra Chandra Singh to enforce this contract. The mere fact that in the contract itself only the name of the vendor or his heirs is mentioned as the persons who could enforce the contract and they alone are entitled to get reconveyance, does not mean that there is a prohibition of the assignment of the right which was possessed by the vendor or his heirs under the said contract.

The effect of the mention of the name of the vendor as well as his heirs only is that the parties to the contract were the vendor and his heirs. No third party could be regarded as a party to that contract. But it does not necessarily mean that the contract as such is not transferable. Unless then is a prohibition express or implied in the contract itself to the effect that such a right could not be assigned, Section 23(b) of the Specific Relief Act gave ample right to the transferee to enforce the contract.

I have carefully read the contract and I am not inclined to accept the contention of the respondent that the mention of the name of the vendor or his heirs necessarily implies a contract to the effect that the rights could not be assigned or transferred by tire vendor or his heirs. It cannot be disputed that each case will ''depend upon its own terms. In interpreting a document primarily, the language of the document is to be taken into consideration.

The intention of the parties is to be primarily gathered from the language employed in the document itself. If the language is vague, the surrounding circumstances may be looked into to interpret the contract. But in my opinion on the reading of the contract itself, there is no ambiguity in the language and the absence of the name of any third party besides the vendor and the heirs of the vendor does not necessarily mean that there is prohibition to assign the right of the vendor or his heirs under the contract. The contract was thus enforceable.

It is then contended that the contract of sale was void without the consent of the landlord and'' thus the contract of reconveyance was hit by Section 23 of the Contract Act. If the contract of reconveyance is allowed to be enforced, it will affect the provisions of the Act and thus it is void and cannot be enforced. In effect the finding of the Munsiff on that point is supported by the respondent. I do not think that there is any substance in this contention.

There is nothing in Section 20 or Section 36 of the Act to the effect that a previous consent of the landlord is necessary. That indicates that a contract of sale by an occupancy tenant or a non-occupancy tenant without the consent of the landlord is not void ab initio. It is only not enforceable against the landlord. Section 63 of the Act also makes it abundantly clear. If the contract is not void ab initio Section 23 of the Contract Act will not be attracted and the contract of reconveyance will be enforceable.

It was then contended that the contract of reconveyance was without consideration. It is conceded by the counsel for the respondent that if the contract of reconveyance formed part of the contract for sale, it might be said that it is with consideration. But as it is an independent contract, there is no separate consideration for it, besides the price which the vendee has agreed to accept for reconveying the property to the vendor.

I do not think that there is any substance in tins contention either. If the argument is accepted, then all independent contracts for sale of the property will be void because they have no other consideration except the mice for which the property is agreed to be sold. The price for which the property is agreed to be sold is a valid consideration for the contract of sale and in the present case there was thus consideration for the agreement.

It was also urged that the contract was vague. No such point was taken before the courts below nor do I find any substance in this contention. So far as the liability to reconvey the property is concerned, the contract is absolutely clear and there is nothing vague about it. In the result therefore, I allow this appeal, set aside the decision of the courts below and decree the suit of the plaintiff for specific performance. The parties will bear their own costs of this appeal.

Leave for Letters Patent Appeal is prayed for and refused.