Rashid Ali vs Darparam Namasudra and Others

Sarjoo Prosad, C.J.—This is a Defendant�s appeal arising out of a suit to enforce a contract of repurchase as embodied in the deed of sale dated 15-3-1945 under which the Defendants 3 & 4 convoyed the disputed lands to Defendants 1 and 2. The document provided that the Defendants 1 and 2 would re-convey the property to Defendants 3 and 4 if after two years but, with in a period of fifteen years from the date of the sale the Defendants 3 and 4 would pay back the purchase price to the vendees, Defendants 1 and 2. The Plaintiffs are assignees from Defendants 3 and 4 and they sued to enforce this assignment.

The two Courts below have decreed the Plaintiffs� suit. The main defence to the action appears to have been that the Plaintiffs who are assignees from Defendants 3 and 4 could not enforce the right under that contract. There was some question of valuation also raised, but I have not been able to understand what legal bearing the question had upon the litigation. In any case, the finding on that point is against Defendants 1 and 2 who are the contesting Defendants and the point has not been pressed any further in this Court.

The only question is the question whether the contract could be validly assigned in favour of the Plaintiffs. On that point, the Courts below have rightly held that such an assignment could be made and their view is amply supported by the decision of the Judicial Committee in--''Sakalaguna Nayudu v. Chinna Munnuswami, Nayakar'' AIR 1928 PC 174 (A) which says that the benefit of such a contract could be assigned. Mr. Deb on behalf of the Appellants has sought to distinguish the case, firstly, on the ground that the benefit of the contract could be assignable only between the parties to the contract. In other words, it could be transferable between the promises inter se but not to any stranger. This distinction has no substance whatsoever. On an examination of the facts in the case to which the decision'' of the Privy Council refers, it is obvious that a third party assignee sought to enforce the agreement and it was held that he was entitled to do so. The benefit of such a contract could be validly assigned and the Plaintiffs were, therefore, entitled to sue on the basis of the contract.

Next it was urged by Mr. Deb that the contract was void and even the Defendants 3 and 4 the assignors, could not have enforced it against the Defendants 1 and 2, much less could the Plaintiffs. This argument is sought to be supported on some ground of perpetuity. This point was not taken in the grounds of appeal and was not urged in either of the two Courts below. The appropriate procedure for the Appellants should have been to serve a copy of the contract, whether translated or in vernacular, upon the opposite party and give him notice of it before urging the same in this Court. The question is undoubtedly a question depending upon the interpretation of the terms of a document of title and would, therefore, be a question of law open for consideration in Second Appeal.

For my own satisfaction, therefore, I had the document read out before me. I find that the rule against perpetuities has got no application to the case. I have already pointed out that a period of fifteen years was fixed, within which this contract could be enforced. Even if no such period had been fixed, I am inclined to think that the rule against perpetuity could not apply to the case for the obvious reason that the contract did not create any interest in immovable property. Such a contract obviously could not offend the rule of perpetuities.

Mr. Deb has relied upon the decision of the Calcutta High Court in--''Bepin Chandra v. Kaliesh Chandra'' 46 Cal W.N. 147 (B). The correctness of this decision becomes doubtful in view of the later decision of the Pull Bench of that Court in-- Moulvi Ali Hossain Mian and Others Vs. Rajkumar Haldar and Others, Besides the contract in that case was of a different nature from the one with which we are at present concerned. For these reasons, the point now urged is not available to the Appellants, and, in fact, does not actually arise on the facts stated.

The appeal is without much substance and must be dismissed with costs and the decision of the Courts below must be affirmed.