P L D 1952 Dacca 112 (PLP)

Sakalaguna Nayudu anal another v. China Muniswami Nayakar

441. A. 243 from (P.C.) ref. K. M. Hassan for Imam Hussain Chowdhury for Appellant. B. K. De and Rohini Benode Rakshit, for Respondent. IBRAHIM, J.‑

This appeal is from the appellate decree passed in Title Appeal No. 137 of 1943 by the District Judge of Chittagong. Pro forma defendants Nos. 2 to 5 transferred the suit lands to defendant No. 1 in 1936 by the deed, Exhibit 2, which was described as "Karari Kabala" for a consideration of Rs.

800. There was a stipulation embodied in the document to the effect that if the transferors paid back the full amount of the consideration within 10 years, the defendant No.1 would re-convey and deliver possession of the suit land, to the transferors but that if the transferors failed to pay back the full amount of consideration within the stipulated period the transferee would be entitled to foreclose. The plaintiff purchased the right, title and interest of pro forma defendants Nos. 2 to 5 by three kabalas, Exhibit 1A, Exhibit I and Exhibit IB. The interest conveyed by these document was described therein as right of redemption. The plaintiff, thereafter, instituted this suit on the 11th December, 1942 (that is within ten years), for redemption pleading that the debt under the bond had been satisfied by the enjoyment of the usufruct. The suit was contested by defendant No. 1 mainly on the plea that the transaction was not a mortgage by conditional sale but was an out and out sale with a condition of repurchase and that the right of repurchase was not assignable and that even if the plaintiff get any interest by the kabalas executed in his favour he could not get back the property without paying back the full amount of consideration advanced by defendant No.

1. The learned Munsif came to the conclusion that the transaction was an out and out sale with a condition of re‑purchase. But he held that the right of re‑purchase was assignable and the plaintiff was entitled to enforce it on payment of the consideration. In that view of the matter he passed a decree in favour of the plaintiff in preliminary form directing that a final decree would be passed if within two months she deposited the sum of Rs. 800 which was the consideration for Exhibit 2, the deed of conveyance in favour of defendant No.

1. The plaintiff, thereafter, deposited this amount and a final decree was passed on the 21st July, 1943. From this decree an appeal was taken to the District Judge, whether the right of re‑purchase was assignable or not. The learned District judge took the view that it was assignable and in that view of the matter dismissed the appeal. The defendant has come up to this Court in second appeal from the decision of the learned District Judge. The only point for consideration here is whether the benefit of a contract granting an option of re‑purchase is assignable or not. If it is assignable the plaintiff has a good cause of action and the appeal must be dismissed. If not this appeal will succeed. It is pointed out by Mr. Khondakar on behalf of the appellant that it is expressly stated in section 54 of the Transfer of Property Act * * * a contract for sale of immovable property does not of itself create any interest in or charge on such property". But though it does not create an interest in or charge on the immovable property concerned it is a benefit annexed to the ownership of land, and unless the contract is induced by considerations which are personal to the vendor it is assignable. Whether it is induced by personal qualities or consideration is a question of fact. If it appears that the option was given, as a matter of grace or favour it would be restricted to the vendor personally and would not be assignable but if it is not induced by any such consideration but as in fact a part of the bargain the beneficial interest created by the contracts is assignable. See the case of Sakalaguna Nayudu and another v. China Muniswami Nayakar 44 I. A. 243 (P C). In the present case there is nothing to show that the benefit of the contract was intended to be restricted to the vendor personally. The vendor transferred land and got in return a sum of Rs. 800 and the option of re purchase. The benefit of the contract is, in my opinion, assignable. In these circumstances the appeal must fail and is dismissed with costs. A. H. Appeal dismissed.