P L D 1964 Dacca 506 (PLP)

Ganada Mondal, predecessor of defendants Nos. 2 and 3, was the owner to the extent of 1/3rd of the land of Khatian No. 194 of mouja Baracharkalia. He sold 32 acre of land for Rs. 200 to defen dant No. 1 out of Plot No. 775 of that Khatian by a kobala dated 30th of Bhadra, 1359 B. S. along with a separate deed of agreement for reconveyance of the self‑same land executed by defendant No. 1 in favour of Ganada Mondal if the consideration money was paid back within the month of Poush, 1365 B. S. following. Thereafter Ganada Mondal sold the said land along with 20 decimals of land of Plot No. 780 of that Khatian No. 194 to the plaintiffs on the 20th of Falgoon, 1359 B. S. for a sum of Rs.

700. The plaintiffs assert that after their purchase they asked for a deed of reconvey ance from defendant No. 1 on tendering the amount of considera tion paid by him to Ganada but defendant No. 1 declined to excute the deed of reconveyance. Hence the suit.

3. The suit was contested by defendant No. 1 alleging that the plaintiffs did not acquire the right to get reconveyance from him by that purchase and that they did not purchase the land which was the subject‑matter of the agreement. He also denied the tender of the consideration money.

4. The trial Court as well as the High Court in Second Appeal found that the plaintiffs purchased the self‑same land covered by the Kobala of defendant No.

1. The trial Court also found that the plaintiffs acquired the right to get reconveyance from defendant No. 1 and they have tendered consideration money and asked for a reconveyance which was refused by defendant No.

1. Accordingly, the trial Court decreed the suit. But the learned Subordinate Judge on appeal not only found that the plaintiffs by their purchase from Ganada Mondal did not acquire a right of a repurchase of the land covered by the agreement but also found that the land transferred by the plaintiff is different from the land covered by the agreement. He also found that the plaintiffs did not tender the consideration money mentioned in the agreement and, therefore, he dismissed the suit of the plaintiffs.

5. The High Court in Second Appeal could not agree with the findings of the learned Subordinate Judge so far as the identity of the land purchased by the plaintiffs with that of the deed of agreement is concerned ; but agreed with the learned Munsif that the land transferred to the plaintiff is the same as that covered by the deed of agreement Exh.

1. As to the tender of the consideration money the learned Judge in Second Appeal held that he could not agree with the learned Subordinate Judge that such a demand was condition precedent to the filing of the suit and that if the plaintiffs filed the suit and prayed for execution of the necessary document, without a previous demand, all that could be done was not to saddle the defendant with costs, if the plaintiff had succeeded in proving their right to sue. Therefore, the learned Single Judge in Second Appeal did not think that the plaintiffs suit ought to have failed altogether on this ground ; but at the same time the learned Single Judge agreed with the learned Subordinate Judge that an owner who after complete transfer of his property obtains an agreement from the transferee, no doubt acquires a right to repurchase it ; but this is not a legal incident of the property in respect of which the agreement has been obtained. Therefore, in the absence of anything in the deed of conveyance in favour of the plaintiffs to show that the benefit of the agreement Exh. 1 was transferred to them the suit for specific performance of contract as embodied in that agreement at their instance is not maintainable. Hence this appeal by the plaintiffs.

6. Now the only question for our consideration, in view of the findings arrived at by the High Court in Second Appeal, is whether by purchasing the self‑same land of Plot No. 775 covered by the deed of agreement, the plaintiffs have acquired a right to get reconveyance on the basis of the agreement between Ganada Mondal and defendant No. 1.

7. It is no doubt true under section 54 of the Transfer of Property Act an agreement to repurchase does not create any interest in the land nor does it create any charge on the property‑ "It does not, of itself, create any interest in or charge on such property." but certainly it creates an obligation annexed to the owner. ship under section 40 of the Transfer of Property Act which provides "Where, for the more beneficial enjoyment of his own immovable property a third person has, independently, of any interest in the immovable property, of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obliga tion arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon", such right or obligation may be enforced against a transferee with notice thereof . . . . . ." This point has been elaborately dealt with by Mr. Justice Kayani in the case of Umar Din v. Fazal Din and 10 others (P L D 1952 Lah. 166). Similar is the view taken in the case of Sital Chandra Koley and another v. Mihilal Koley and others (58 C W N 1000). In the case of Sakalaguna Nayudu v. Chinna (A I R 1928 P C 174) it has been held by the Privy Council that the "counterpart document" was a completed contract on the part of the vendee to reconvey upon the terms set out and that it was not disputed that if it was a completed contract its benefit could be assigned. That decision has been followed in the case of Bishweshwar Nerasabhotta Gaddada v. Durgadda (A I R 1940 Bom. 339) and in the case of Seth Bhabhootmal v. Moolchand (A I R 1943 Nag. 266). In the former case thief Justice Beaumont held that both under the Common Law and section 23 (b) of the Specific Relief Act an option to repurchase property is prima facie assignable though it may be so worded as to show that it was to be personal to the grantee and not assignable. In that case the vendee contracted to pay off the money and convey back to the vendor a part of the property. It was held that on agreement for sale or repurchase of immovable property is a contract and that benefit under a contract could be assigned, unless performance depends upon something personal or special. It is not a mere right to sue. In the latter case the argument that the right of reconveyance was a mere right to sue was repelled holding that the prohibition of transfer of a mere right to sue was only a mere application in India of an equitable doctrine and should not be read as invalidating transfers such as this which would not be regarded as transfers of a mere or bare right to sue in England. Therefore, there is no doubt about the assignability of the right that accrued to Ganada Mondal on the basis of the agreement of re‑transfer in Exh.

1. But unforunately these authorities on the point have not been cited before the learned Single Judge and his attention has not been drawn to this aspect of the matter.

8. The question is whether that right has been assigned to the plaintiffs. The kabala of the plaintiffs shows that the self‑same land of Plot No. 775 along with 20 decimals of land of Plot No. 780 of Khatian No. 194 has been transferred to the plaintiffs for a consideration of Rs.

700. It is true there is no specific mention in the said transfer to the plaintiffs of the plaintiffs' right to get reconveyance from defendant No.

1. Then what has been transferred by this kabala? So far as the land of Plot No. 775 is concerned which has already been transferred to defendant No. 1 for Rs. 200 by the kabala dated 30th of Bhadra, 1359 B. S. at the time of transfer of the self‑same land to the plaintiffs the vendors had nothing in this land except the right to get reconveyance and we have already pointed out that the right to get reconveyance under section 40 of the Transfer of Property Act is a right in the vendor and an obligation to the first vendee annexed to the ownerships. It seems to us that by this kabala what Ganada Mondal transferred to the plaintiffs is the self‑same right resting with him on the date of transfer, namely, the right to get reconveyance annexed to the ownership. It is not a mere right to sue and if it is an assignable right there it has been assigned by implication, and that too an eloquent implication, as Ganada transferred it for consideration to the plaintiffs, the plaintiffs has certainly stepped into the shoes of Ganada vis‑a‑vis the land of Plot No. 775, that is, right to get reconveyance annexed to the ownership of that property. It is true that this right to get reconveyance is neither an interest in the land nor a charge in the land nor any legal incident following from the land but, after all, it is a right having corresponding obligation attached to the ownership of the land in the hand o defendant No.

1. In these circumstances, we think the plaintiff have acquired the right of getting reconveyance on account of the agreement Exh. 1 which in substance has been transferred by transferring the land of Plot No. 775 of Khatian No. 194 of Mouzal Baracharkalia. In this view of the matter, we are unable to agreel with the finding of the learned Single Judge in Second Appeal, that there is nothing in the conveyance in favour of the plaintiffs to show that the benefit of the agreement Exh. 1 was transferred to them and that the suit for specific performance of a contract embodied in that agreement at the instance of the plaintiffs is not maintainable.

9. The result, therefore, is that we allow this appeal ; set aside the judgment and decree of the learned Single Judge in Second Appeal and affirmed those of the trial Court and decree the suit of the plaintiffs for specific performance of a contract with costs. In the circumstances we think the party will bear their own costs in this Letters Patent Appeal as costs of the lower appellate Court. A. M. SAYEM, J.‑I agree with my Lord the Chief Justice. S. Q. Appeal allowed.