Habiba
Khatoon Vs. Ubaidul Huq & Ors [1997] INSC 644 (5 August 1997)
S. B.
MAJMUDAR, D. P. WADHWA
ACT:
HEADNOTE:
S. B. Majmudar,
J.
The
appellant on grant of special leave to appeal has brought in challenge the
judgment and order rendered by the High Court of Judicature at Allahabad, Lucknow
Bench dismissing the appellant's Second Appeal and in turn confirming the
judgment and decree passed by the Trial Court against the appellant and as
confirmed by the Court of the Additional District Judge, Lucknow, U.P. The
appellant was original defendant no. 2 in the suit filed by predecessor-
in-interest of respondent nos. 1 to 3 herein, one Zahirul Huq, for specific
performance of an Agreement of reconveyance of suit property which is a
residential house.
We
shall refer to predecessor-in-interest of respondent nos. 1 to 3, Zahirul Huq
as plaintiff and the appellant, who was original defendant no. 2, as defendant
no. 2 and predecessor-in-interest of respondent nos. 4 and 5 as defendant no.
1. A few facts for appreciating the grievance of defendant no. 2, appellant
before us in these proceedings, deserve to be noted at the outset.
The
plaintiff filed Regular Civil Suit No. 9 of 1963 in the Court of Civil Judge, Malihabad
at Lucknow for specific performance of an
Agreement of reconveyance of the suit house. The house originally belonged to Smt.
Amir Jehan Begam. It was situated in Mirzaganj Kasba Malihabad in Lucknow
District of State of Uttar Pradesh. Smt. Amir Jehan Begam sold the said house
to defendant no. 1 Shakir Ahmad Khan who purchased the said house by as Sale
Deed dated 29th January 1960 for a consideration of Rs. 7480/-. Along with the
Sale Deed an Agreement of reconveyance was executed by original defendant no. 1
Shakir Ahmad Khan in favour of Smt. Amir Jehan Begam agreeing to reconvey the
suit property within three years on return of the same consideration.
Thereafter
defendant no. 1 sold his right, title and interest in the said property on 1st March 1960 to defendant no. 2, appellant
herein. It was the case of the plaintiff that the obligation to reconvey the
property as per the Agreement of reconveyance executed by her vendor, defendant
no. 1 was binding on defendant no. 2. In the meantime the original vendor of
the property Smt. Amir Jehan Begam died.
Under
the Agreement of reconveyance her son Irfan Hasan Khan became entitled to
enforce the right to repurchase. Said Irfan Hasan Khan asigned his right to
repurchase the suit house from defendant nos. 1 and 2 under a Sale Deed
executed by him in favour of the plaintiff Zahirul Huq on 31st May 1962. The plaintiff as assignee of the
said right to repurchase earlier available to Irfan Hasan Khan under the
Agreement of reconveyance, after service of notices to the concerned defendants
filed the aforesaid suit for getting the property reconveyed in his name by
enforcing the said Agreement of repurchase. Original defendant nos. 3 to 7 who
were the other heirs of original vendor Smt. Amir Jehan Begam were also impleaded
but they remained proforma defendants. Besides specific performance the
plaintiff also claimed pendent lite damages from defendant nos. 1 and 2 for use
and occupation at the rate of Rs. 50/- per month.
The
aforesaid suit was contested by original defendant nos. 1 and 2 alone.
Remaining defendant nos. 3 to 7 did not appear to contest the suit. Defendant
nos. 1 and 2 by filing separate but concurring written statements contended,
amongst others, that the right of repurchase granted under the Agreement by
defendant no. 1 in favour of original vendor Smt. Amir Jehan Begam was a
personal right which could be exercised either by Smt. Amir Jehan Begam or by
her son Irfan Hasan Khan but said Irfan Hasan Khan was not competent to assign
the said right of repurchase in favour of a stranger like the plaintiff. They also
raised other ancillary contentions with which we are not concerned at this
stage. The only dispute, between defendant no. 2 on the one hand and the
plaintiff's heirs on the other, which survives for consideration is as to
whether the original plaintiff could be legally assigned the right to
repurchase granted under the Agreement to repurchase executed by original
defendant no. 1 in favour of the original vendor smt. Amir Jehan Begam and her
son Irfan Hasan Khan.
The
learned Trial Judge framed various issues arising from the pleadings of
parties. So far as the issue which survives for our consideration is concerned
it was issue No.
2
which was to the effect whether the right of reconveyance was not transferable
by Irfan Hasan Khan. If so, its effect.
The
learned Trial Judge after hearing the parties on this issue in the light of the
evidence recorded before him came to the conclusion that the right of reconveyance
was not personal only to Irfan Hasan Khan and could be validly assigned by him
in favour of the plaintiff and as the plaintiff has filed suit within the
period of three years as per the said Agreement of repurchase as an assignee of
the right of Irfan Hasan Khan to get reconveyance of the property, the
plaintiff was entitled to succeed and get a decree for specific performance
directing both defendant nos. 1 and 2 to execute the Deed of Reconveyance as
prayed for by him.
This
resulted in Civil Appeal No. 147 of 1964 by defendant nos. 1 and 2 in the Court
of learned Additional District Judge, Lucknow. The Appellate Court after hearing the contesting parties endorsed the
view of the learned Trial Judge on Issue No. 2 and held that the right of reconveyance
was validly transferred by Irfan Hasan Khan in favour of the plaintiff and
consequently the plaintiff's suit was well sustained. The appeal accordingly
was dismissed.
Appellant-original
defendant no.2 carried the matter in second appeal before the High Court. As
noted earlier the High Court also agreed with the view of the courts below and
dismissed appellant's Second Appeal. That is how the appellant is before us in
these proceedings.
*********************************
BLANK PAGE ON PAGE NO 6 ********************************* to enforce reconveyance
was linking up with an obligation to pay up the cost of improvements made by
defendant no.1 and defendant no.2 in the suit property as that part of the
obligation, which was a part and parcel of the entire package of contractual
right and obligation of the beneficiary under the Agreement of reconveyance, did
not get conveyed to the plaintiff, the suit was liable to fail even on that
ground. Learned senior counsel Dr. Ghosh in support of his contentions placed
reliance on some of the judgments of this Court to which we will made a
reference hereinafter.
Learned
counsel for respondent nos.1 to 3, heirs of original plaintiff, on the other
hand tried to support the judgment under appeal as confirming the view of the
courts below and contended that on a correct construction of the relevant terms
of the Agreement of reconveyance all the three courts had rightly come to the
conclusion that the right inhering in the estate of Smt. Amir Jehan Begam as
inherited by her son to get the property reconveyed was not a personal right of
anyone and it was not so hedged in either expressly or by necessary implication
in the light of relevant recitals in the Agreement of reconveyance.
Consequently
the appeal is liable to fail. He also submitted that so far as the obligation
of Irfan Hasan Khan to pay up the cost of improvement made by defendant nos.1
and 2 in the suit house was concerned, that had nothing to do with the right of
repurchase flowing from the express terms of the Agreement between the parties.
Even otherwise it was found as a matter of fact by the Trial Court on Issue
No.3 in this connection that there was no evidence regarding maintenance of
regular accounts regarding repairs by the vendee, nor was the procedure laid
down under the Agreement found to have been followed by the vendee, and hence
no claim on that score survived in their favour. That there are concurrent
findings of fact of both the fact finding courts that defendant no.2 was not
able to prove any cost of construction said to have been incurred by her in
improving the suit house. Hence the question of obligation of Irfan Hasan Khan
to pay up this amount of repairs to defendant no.2 did not survive. It was also
submitted that this finding on Issue No.3 could not be effectively challenged
in further appeal by defendant no.2. Learned counsel for the respondents also
pressed in service decision of this Court as well as of Privy Council. We will
refer to the same at an appropriate state hereafter.
In
view of the aforesaid rival contention the following point arises for our
consideration:
"Whether
the Agreement of reconveyance dated 29th January 1960 executed by defendant
no.1 original vendee in favour of Smt. Amir Jehan Begam, original vendor and
her heirs as mentioned in the Agreement conferred any personal right to get the
property reconveyed on persons mentioned in the said Agreement of reconveyance
as the beneficiaries of the said Agreement of reconveyance or whether the right
of reconveyance flowing from the Agreement in favour of these named persons
could be validly assigned in favour of a third party or a stranger to the
family." Consideration of the Point We will, therefore, address ourselves
to the consideration of this question. In order to resolve this controversy, it
will be necessary to have a look at the express recitals found in the document
of reconveyance executed by defendant no.1. An English translation of the said
document is found at page 66A of the Paper Book. It read as under:
"In
a sound state of body and mind and of may own accord and pleasure, I declare
and put it in writing that if the said Amir Jahan Begam pays me the aforesaid
consideration within a period of 3 (three) year, I shall give back to her the
aforesaid property bounded as state below. At the time of giving back to her
property) the said Amir Jahan Begam shall be liable for the costs of the Deed
of Sale, God forbid, if the said Amir Jahan Begam dies within this period, then
only Irfan Hasan Khan, the some of the said Amir Jahan Begum, and the children
of Irfan Hasan Khan, shall be competent to get (the property) back with the said
period, and the other heirs of Amir Jahan Begum shall not be competent, to get
it back during the life time of Irfan Hasan Khan and his children. Of course,
if during this period Irfan Hasan Khan or the heirs of Irfan Hasan Khan do not
remain alive, then the other heirs of Amir Jahan Begum shall be competent to
get back (the property). After the expiry of the aforesaid period no right
shall subsist for any one whosoever to get (the property) back, nor shall I or
my heirs be then bound by this declaration. If during the said period I have to
spend any money for the repairs of the said house, then at the time of giving
(the property) back I shall be entitled to get that money as well. At the time
of effecting repair I shall be giving verbal intimation to Amir Jahan Begam or
her son Irfan Hasan Khan and shall also be duly keeping with me the accounts in
respect thereof." A mere look at the said relevant recitals in the
document shows that the vendee-defendant no.1 while taking the Sale Deed in his
favour on the same day agreed to reconvey the suit house within a period of
three years from the date of the Agreement to the original vendor Amir Jehan Begam
by accepting the same consideration which he had paid to Amir Jehan Begam when
he purchased this house by the Sale Deed of even date in his favour. It is not
in dispute between the parties that Amir Jehan Begam died within the aforesaid
period of three years. She had, therefore, no occasion to enforce her right
flowing from the document in here lifetime. But such a contingency was also
contemplated by the Agreement and it recites that if said Amir Jehan Begam died
within that period then only Irfan Hasan Khan, son of said Amir Jehan Begam,
and his children would be competent to get back the property by obviously enforcing
the right of repurchase granted under the document and the other heirs of Amir Jehan
Begam would not be so competent.
However
as a last priority they were also conferred the right to enforce the claim for
repurchasing the suit house in case Irfan Hasan Khan and his children did not
remain alive within the period of three years. It is true that great emphasis
was laid by learned senior counsel Dr Ghosh for the appellant on term `only'
employed by the document for submitting that Irfan Hasan Khan was given a
personal right to get the property reconveyed if his mother-original vendor,
the first beneficiary under the Agreement of repurchase died within that
period. Now we may state that prima facie the said interpretation of the term
`only' as submitted by learned senior counsel Dr Ghosh for the appellant cannot
be said to be not plausible. However on a closer scrutiny the said
interpretation of the document cannot be sustained. The Trial Court, the
Appellate Court as well as the High Court while construing his document and the
aforesaid term have held that word `only' signified a situation wherein three
years of the Agreement on of her heirs, namely, Irfan Hasan Khan and his own
children as contra-distinguished with other heirs of Amir Jehan Begam were given
a priority right to enforce their claim to repurchase this suit house from
defendant no.1 or his assignee like defendant no.2 and with a view to exclude
the other heirs of Amir Jehan Begam from the scheme of priorities that the word
`only' was used in the document.
That
only gave a prior right to purchase this property by way of reconveyance to Irfan
Hasan Khan and his own children and only on the occasion of their
non-availability within the three years period that this right would get
transmitted to the remaining heirs of Amir Jehan Begam. This view taken by the
courts below appears to be plausible. We may now refer to the main contentions convassed
by Dr. Ghosh against the said view.
It was
submitted that on a conjoint and comprehensive reading of the relevant terms of
the document it can reasonably be held that the right of reconveyance was
sought to be conferred only on a select body of person, namely, Amir Jehan Begam
failing whom her son Irfan Hasan Khan failing whom his own children and then
failing all of them on the remaining heirs of Amir Jehan Begam. That this
represented a scheme of pre-emption and right of pre-emption would remain
personally available to only specified persons and cannot by enjoyed by
stranger. Therefore, such a right could not be transferred to a stranger like
the plaintiff.
Consequently
accordingly to Dr. Ghosh the relevant recitals in the document impliedly
prohibited the beneficiaries named in the Agreement from assigning their rights
of repurchase to outsiders. Now it must at once be state that nowhere in this
document there is an express prohibition restricting the right of the name
beneficiaries to assign their right of repurchase to a third party stranger
like the plaintiff. So far as the submission of Dr. Ghosh that there is an
implied prohibition as the right is conferred only on a specified class of
person with a view to retaining the suit house in the family of Amir Jehan Begam
and her heirs and not to outsiders is concerned, it is difficult to appreciate
how the persons mentioned in the document of reconveyance as beneficiaries of
the Agreement of repurchase are impliedly prohibited from assigning their right
to repurchase once it accrued in the scheme of priorities to anyone else. The
reason is obvious. So far as Irfan Hasan Khan is concerned he had admittedly a
right to get reconveyance of the suit house from defendant no. 1 or his
successor-in-interest defendant no.2 within the period of three years. If he
himself got this right enforced against the defendant nothing prevented him as
the full owner of the reconveyed house from almost simultaneously selling it to
the plaintiff. Even that apart, assuming that Irfan Hasan Khan did not enforce
his right of reconveyance enuring to him on the death of Amir Jehan Begam within
the period of three years, and if he unfortunately died within that period his
children could enforce that right within the same period and so far as they are
concerned nothing is indicated in the document, either expressly or by
necessary implication, that they could not assign the said right once it
accrued to them in favour of any outsider. Consequently on a conjoint reading
of the entire document it cannot be said that the word `only' which was earlier
found to have been employed while contra-distinguishing the prior right of Irfan
Hasan Khan and his children as heirs of Amir Jehan Begam, standing in a scheme
of priorities from that of other heirs of Amir Jehan Begam made the said right
inhering in the named persons to be purely a personal right which was
inalienable and could not have been assigned to anyone else like the plaintiff.
Reliance placed by Dr. Ghosh on the decision of this Court in the case of Hazari
& Ors. v. Neki & Ors.
(1968)
2 SCR 833 cannot be of any avail to the appellant for the simple reason that in
the said decision this Court took the view that statutory right of pre-emption
thought not amounting to an interest in the land was a right which attached to
the land and such a right statutorily recognised by Section 15(1)(a) of the Punjab
Act of 1913 was a personal right in the sense that the claim of pre-emptor
depended upon the nature of his relationship with the vendor. In that case the
plaintiff who admittedly having a statutory right or pre-emption has got the
suit filed for enforcing the said right and that suit had succeeded and a
decree for pre- emption was passed in favour of the plaintiff. The said decree
got confirmed in appeal. However during the pendency of second appeal filed by
the defendants the respondent- plaintiff died and the question was whether his
heirs could be brought on record under 0.22 R.1, Code of Civil Procedure. This
Court took the view that as the heirs were also entitled to right of
pre-emption and represented the estate of the deceased plaintiff they could be
brought on record. So far as the facts of the present case are concerned, as
noted earlier, the fate of this case hinges on a correct construction of the
relevant recitals in the Deed of reconveyance. Such a question was never on the
anvil of scrutiny before this Court in this aforesaid decision. On the same
lines are two latter decisions of this Court relied upon by Dr. Ghosh. They are
- Zila Singh & Ors. v. Hazari & Ors. (1979) 3 SCC 265 and Bhoop Alleged
son of Sheo v. Matadin Bhardwaj (Dead) by LRs. (1991) 2 SCC 128. As they deal
with the right of pre-emption and fall in line with the aforesaid decision of
this Court in the case of Hazari v. Neki (supra) we do not dilate on the same.
We may also mention that this is not a case of any right of statutory
pre-emption but is reflects a scheme of priorities for getting the property reconveyed
as per the contract entered into between defendant no. 1 on the one hand and
original vendor Amir Jehan Begam on the other. It also enured for the benefit
of the named beneficiaries of the said Agreement of reconveyance. It is a
contractual scheme of priorities conferred on specified types of persons
mentioned therein and their right to get the property reconveyed will have to
be adjudicated upon within the forecorners of the said Agreement and not dehors
it. In this connection we may refer to two decisions on which strong reliance
was placed by learned counsel for the respondents, heirs of original plaintiff.
In the
case of Sakalaguna Nayudu and another v. Chinna Munuswami Nayakar AIR 1928 PC
174 the question posed before the Privy Council was whether the counterpart
document agreeing to reconvey a village earlier conveyed to the vendee, in favour
of one `A' who was mentioned in the counterpart document would enable A's heir
`B' to enforce the terms of the said counterpart document by selling the said
right to the plaintiff of that case. It was held by the Privy Council on the
terms of the counterpart document that it was a completed contract and it must
be deemed to have been executed in favour of both of them, `A' and his son `B'
and the benefit of the contract could be assigned by `B' in favour of the
plaintiff. Dr Ghosh tried to distinguish the aforesaid decision by submitting
that in that case originally the village was conveyed by `A' on his behalf as
well as on behalf of his family members to one `C' for a consideration of Rs.
10,000/- and on the same day `C' had executed a counterpart document by which
it was agreed by `C' that he would reconvey the said village to `A' after a
period of thirty years from that date. Thus the original vendor being `A' and
his family the beneficiaries of the Agreement of reconveyance of the even date
would naturally be `A' and his family members including his son `B'. Dr Ghosh
was right when the submitted that on the question whether the benefit of the
contract could be assigned to the plaintiff or not was not gone into by the
Privy Council as the beneficiaries themselves had not contested the right of
the plaintiff to get the assignment of the said right. The contest was between
the receiver appointed on the insolvency of the original beneficiary `B' and
the plaintiff. Even leaving aside this question, however, it must be held that
the Privy Council did uphold the assignment of the right of reconveyance which enured
in `B' in favour of the plaintiff who was an outsider. It has to be kept in
view that in the document which fell for consideration of the Privy Council
also there was no express prohibition against `A' or `B' restraining them from
assigning their right of reconveyance to a third party like the plaintiff. On
the terms of the document no implied prohibition was also discerned by the
Privy Council. In this connection we have also to keep in view Section 23(b) of
the Specific Relief Act, 1877 which is analogous to Section 15(b) of the
Specific Relief Act, 1963.
It
lays down that except as otherwise provided the specific performance of a
contract may be obtained by the representative-in-interest or the principal, of
any party thereto. Thus normally any interest in a contract could be assigned
to any representative-in-interest who also can enforce the specific performance
of the contract against the contracting party. However if the term 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 & Ors.
(1993)
2 SCC 740. Considering the provisions of Section 15(b) of the Specific Relief
Act, 1963 a Bench of two learned Judges of this Court speaking through Kasliwal.
J., endorsed in paragraph 10 of the Report the statement of law flowing from
the decision of Sakalaguna Nayudu (supra) 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 AIR 1940 Bombay 339. The statement of law which got imprimatur of this Court in para 9
of the Report runs as follows:
"The
Privy Council in Sakalaguna Nayudu v. Chinna Munuswami Naykar AIR 1928 PC 174
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 Vihsweshar Narsabhatta Gaddada v. Durgappa Irappa Bhatkar AIR 1940 Bom
339 held that both under the common law as well as under Section 23(b) of the
Specific Relief Act, 1877, and 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. Karuppaswami Gounder AIR 1965 Mad 506 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
of repurchase is 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'.(AIR p.508, para 5)" As
noted earlier on a conjoint reading of the relevant terms of the Agreement of
repurchase we cannot persuade ourselves to hold that the persons mentioned in
the said document as beneficiaries of the right of repurchase flowing from the
said document were, either expressly or by necessary implication, prohibited
from assigning their right of repurchase once it accrued, to any one of their
choice even though he might be outside the earmarked, listed category of
persons specified in the document. In other words it must be held that Irfan Hasan
Khan could validly assign his right to repurchase the suit house to the
plaintiff as rightly held by courts below.
So far
as the next contention of learned senior counsel for the appellant Dr Ghosh is
concerned it must at once be stated that right to repurchase flowing from the
document was independent of the obligation of the said beneficiary enforcing
the contract of repurchase to defray the cost of repair of the house, if at all
any carried out by the purchaser-executant of the document. That is a
independent obligation which would get attached to the property and
consequently whoever is the purchaser of the property on the basis of the
enforcement of the right of repurchase will have to bear that burden. On the
fact found in the present case, however, as observed earlier, defendant no.1
and/or 2 could not prove any such actual expenditure incurred by them nor had
they followed the procedure laid down in the document for enforcing such a
claim against the beneficiaries under the contract of reconveyance. This
alternative contention of Dr Ghosh also, therefore, fails.
In the
result this appeal fails and is accordingly dismissed. However in the facts and
circumstances of the case there will be no order as to costs.
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