Jharkhand High Court
Shyam Sundar And Anr. vs Parbati Devi And Ors. on 7 May, 2003
Equivalent citations: [2003(3)JCR586(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This second appeal filed by the defendants/appellants is directed against the judgment and decree dated 19.12.1988 passed by the 1st Additional District Judge, Giridih in Title Appeal No. 13/1977 whereby he has dismissed the appeal and affirmed the judgment and decree dated 12.7.1977 passed by Munsif Giridih in Title Suit No. 17/76.
2. The appeal was admitted for hearing on the following substantial question of law :
"Whether in absence of the heirs of Sheonath Mukherjee, one of the parties in whose favour the appellant-defendants had agreed to reconvey the property, the suit could have been decreed for the whole of the property.
3. The facts of the case lie in a narrow campass.
4. Two persons namely, Shambhunath Mukherjee and Sheonath Mukherjee who were the owners of the suit property sold it to the defendants for a consideration of Rs. 1,000/- and Rs. 3,500/- through two separate sale deeds dated 22.6.1973 and put them in possession of the same. On the same day defendants agreed to their vendors and entered into a deed of reconveyance of the suit property on payment of consideration money within a period of four years from the date of the sale. The defendants executed two separate deeds of agreement for sale on the same day in favour of their venders. Plaintiffs' case is that the vendors have always been tendering the said amount to the defendants right from the month of December 1974 but they have always been putting of the matter on one pretext or other. Ultimately, the venders sent a notice dated 7.1.1975 requesting them to accept the said amount of Rs. 4500/- from the venders and to reconvey the Suitland by executing a registered sale deed.
5. Further, case of the plaintiff is that in the meantime, Sheonath Mukherjee died bachelor in a state of jointness with his brother who succeeded him by right of survivorship. It is stated that Shambhunath Mukherjee and his sons thereafter transferred his right acquired under the aforesaid agreements for sale to the plaintiff by registered deed of transfer dated 2.5.1975 for consideration of Rs. 1,000/-and the plaintiff became entitled to enforce the agreement for sale and also entitled to obtain a decree of reconveyance of the suit land by paying the defendants the full consideration money. The plaintiff then sent a registered notice to the defendant showing his willingness and readiness regarding the payment of entire consideration money for the reconveyance of the contract. The defendants did not accept notice and ultimately the aforesaid suit was filed against the defendant for decree of specific performance of contract.
6. The defendants, who are appellants here, filed joint written statement and contested the suit. Their case, in brief, is that the suit is not maintainable and it is barred by limitation. Their further case is that the plaintiff has no locus standi to maintain the suit as he never entered into any agreement with the defendants. The suit is also barred by non joinder and mis-joinder of parties as Sheonath Mukherjee died leaving behind his wife and three daughters, who are the necessary parties. It is stated that Shambhunath Mukherjee is also a necessary party. Various other defences have been taken in the written statement.
7. The trial Court decreed the suit holding that the suit is not bad for non-joinder of necessary party as Sheonath Mukherjee died bachelor and after his death Shambhunath Mukherjee and his sons inherited the property by survivorship. The defendants preferred Title Appeal No. 13/77 and the learned 1st Additional District Judge, Giridih formulated the following points for consideration :
(i) Whether the suit is maintainable?
"(ii) Whether the suit is bad for the non-joinder of the parties?
(iii) Whether a contract to re-sale a property is assignable and transferable and whether the plaintiff is entitled to get the land reconveyed?
(iv) Whether the plaintiff has been willing to pay the consideration money.
8. All these points have been decided by the Appellate Court in favour of the plaintiff, consequently the appeal was dismissed.
9. Mr. P.K. Prasad, learned counsel for the appellants mainly contended that Shambhunath Mukherjee one of the vendor died leaving behind widow, sons and daughter who are the necessary parties in the suit and therefore in their absence the suit of the plaintiff ought not to have decreed in respect of the whole property.
10. From perusal of the trial Court judgment it appears that the issue as to whether Sheonath Mukherjee died bachelor or leaving behind heirs has been discussed in para 6 of the judgment. The relevant portion of the trial Court judgment is reproduced herein below :
"It has been contended on behalf of the defendant that the suit is bad for mis-joinder and non-joinder of parties. In this respect it has been said that Shambhunath Mukherjee and the heirs of Sheonath Mukherjee are necessary parties, who have not been impleaded in this suit. From the suggestions given to Gajendra Kumar Singh (PW 1) and Shambhunath Mukherjee (PW 2) and the evidences of DW 1, Shyam Sundar Singh, it has been tried on behalf of the defendant to prove that Sheonath Mukherjee died leaving his wife and three daughters as his heirs. This is to be seen, whether Shambhunath Mukherjee or heirs if any of Sheonath Mukherjee, if any, were necessary parties in this suit or not. In the instant case, as it has been discussed above the right to get the land reconveyed was sold to the plaintiff by Shambhunath Mukherjee and on the basis of the right purchased by the plaintiff he has brought the suit. Therefore, I do not find that Shambhunath Mukherjee and the heirs of Sheonath Mukherjee, if any, were necessary parties. So far, the claim of the defendant that Shambhunath Mukherjee died leaving behind his wife and 3 daughters is not proved in view of the oral evidences. PW 1 and PW 2 and the uncorroborated evidences of DW 1 nothing has been shown on behalf of defendant to show that the suit is bad for mis-joinder of parties. Therefore, I am of the opinion that the suit is not bad for mis-joinder or non-joinder of parties. The issue is decided accordingly in favour of the plaintiff."
11. The Appellate Court considered the said issue at para 10 of the judgment and held that even if Sheonath Mukherjee died leaving behind his heirs, the suit cannot be held to be not maintainable for nonjoinder of the heirs of Sheonath Mukherjee.
12. In order to ascertain as to whether there are reliable evidence on the question whether Sheonath Mukherjee died leaving behind heirs, I have perused the evidence of the defendants (DW 1) who has stated in his evidence that he knows Shambhunath Mukherjee since 5-6 years. He does not know as to whose daughter, Shambhunath Mukherjee married. He was also not able to say the names of the daughter of Shambhunath Mukherjee. Excepting that evidence, there is nothing on record in support of defendants' case that Shambhunath Mukherjee died leaving behind his widow and daughters. In absence of cogent evidence, decree for specific performance in respect of entire property cannot be said to be bad in law.
13. Mr. P.K. Prasad learned counsel for the appellant then submitted that one more substantial question of law of great importance requires consideration by this Court. Learned counsel submitted that admittedly the plaintiff filed suit for specific performance of contract on the basis of purchase of a right of reconveyance which does not create any interest in the property. According to the learned counsel the assignee of agreement of reconveyance could not maintain a suit for specific performance of contract. I do not find any force in the submission of the learned counsel. It is well settled that right to repurchase in an agreement is assignable provided it is not mentioned in the agreement that such right is not personal to the vendor. In the case of T.M. Balakrishna Mudaliar v. M. Satyanarayana Rao and Ors., (1993) 2 SCC 740, a similar question arose for consideration before the Supreme Court and their Lordships observed :
"The Privy Council in Sakalaguna Nayudu v. Chinna Munuswami Nayak, has held that the benefit of a contract of repurchase which did not show that it was intended only for the benefit of the parties contracting, could be assigned and such contract is enforceable. Beaumont, C.J. in Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa Bhatkar, held that both under the common law as well as under Section 23(b) of the Specific Relief Act, 1877, an option given to repurchase the property sold would prima facie be assignable, though it might also be so worded as to show that it was to be personal to the grantee and not assignable. On the particular facts of that case, it was held that the contract was assignable. In Sinnakaruppa Gounder v. Karuppuswami Gounder it was held :
"In our view, generally speaking, the benefits of a contract of repurchase must be assignable, unless the terms of the contract are such as to show that the right to repurchase in personal to the vendor. In the latter case it will be for the person who pleads that the contract is not enforceable, to show that the intention of the parties thereto was that it was to be enforced only by the persons named therein and not by the assignee."
In our view, the above statement of law appears to be correct. We have already held above that under the terms and conditions laid down in Exhibits A-3 and A-4, the right of repurchase was not given as personal to Razia Begum and Abdul Salam and they were entitled to assign such right and the plaintiff having got such right under exhibits A-10 and A-11 was entitled to enforce such contract by filing a suit for specific performance. The plaintiff in the present case also falls within the meaning of representative in interest as contemplated under Clause (b) of Section 15 of the Act. On such assignment, the plaintiff-appellant acquired a valid title to claim specific performance."
14. In the case of Habiba Khatoon v. Ubaidul Haq and Ors., (1997) 7 SCC 452, their Lordships of the Supreme Court again considered the matter and observed :
"Thus normally any interest in a contract should be assigned to any representative-in-interest who also can enforce the specific performance of the contract against the contracting party. However, if the terms of the contract, expressly or by necessary implication, prohibited the beneficiary from transferring his contractual interest to third parties, then only such an assignee cannot sue for specific performance. We may in this connection also usefully refer to a decision of this Court in the case of T.M. Balakrishna Mudaliar v. M. Satyanarayana Rao. Considering the provisions of Section 15(b) of the Specific Relief Act, 1963 a Bench of two learned Judges of this Court speaking through Kasliwalm, J. endorsed (in para 10 of the SCC) the statement of law flowing from the decision of Sakalaguna Nayudu as well as the decision of Beaumont, C.J. speaking for the Bombay High Court in the case of Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa Bhatkar, The statement of law which got imprimatur of this court in para 9 of the report runs as follows : (SCC p.. 745)."
15. Taking into consideration the facts of the case and the law-discussed hereinabove, I do not find any merit in this appeal, which is accordingly dismissed.