P L D 1957 Dacca 488 (PLP)

RAHMAN, J.‑

This appeal is against the decision of the Subordinate Judge, Khulna, in Title Appeal No. 149 of 1947 arming that of the Munsif, 2nd Court, Khulna, in Title Suit No. 116 of 1947. It arises out of a suit for specific performance of a contract for re-conveyance of lands sold by a kabala to defend ant No.1. The said suit was instituted by two plaintiffs. Plaintiff No.1 was the party to the said contract for re-con veyance and plaintiff No. 2 was the person with whom plaintiff No. 1 had purported to settle the said lands in the event of the re-conveyance being obtained. The other party to the agreement was defendant No. 1 to whom the lands had been transferred by the kabala and some 3 other persons were also added as defendants. In the suit plaintiff No.1's case was that he sold the said lands to said defendant No. 1 for a consideration of Rs. 900 and executed a kabala for that purpose on the 1st of October 1937, and that on the same date the said defendant No. 1 in his turn executed and registered an ekrarnama stipulating that he would re-convey the lands to plaintiff No. 1 if the latter would repay the consideration money at any time within Chaitra, 1358 B. S., corresponding to March‑April 1952. The plaintiff further claimed that he had duly tendered the said consideration to defendant No.1 on the 29th Chaitra, 1350 B. S., well within the stipulated period but defendant No.1 had wrongfully refused to accept the same or to recovery the lands to plaintiff No.1. Upon such refusal of defend ant No. 1, plaintiff No. 1 on the 30th Chaitra, 1350 B. S., duly deposited the said sum of Rs. 900 in Court, presumably under section 83 of the Transfer of Property Act. In the suit, the plaintiff also made an alternative prayer for redemption alleging that the kabala and the ekrarnama in question really constituted a mortgage by conditional sale, but this plea was abandoned at the trial and hence 1 need not take it into consideration. Defendant No.1 contended that the ekrarnama in ques tion was a contract without consideration and, therefore, could not be specifically enforced ; further that even if it could be so specifically enforced, there had been no valid tender or deposit of money ; hence, plaintiff No.1 had not performed his part of the contract and could not ask for specific perfor mance thereof; and lastly, the plaintiff No. 1, having granted a lease to plaintiff No. 2 divesting himself of his right to the possession of the property, was not entitled to ask for specific performance of the said contract. Both the Courts below took the view that the ekrar nama, although contained in a separate document, was executed at the same time and at the same sitting as the kabala which had been clearly referred to in the ekrarnama itself and that, there fore, the one formed the consideration for the other and gave rise to a legally enforce-able contract entered into for lawful consideration. Both the Courts below also concurrently found that plaintiff No.1 had duly tendered the amount of consideration to defendant No. 1 on the 29th Chaitra, 1350 B. S: In any event, since the amount had been deposited in Court on the 30th Chaitra, 1350 B. S., it could not be said that the plaintiff had not performed his part of the agreement. Both the Courts below were also of the view that plaintiff No. 1 had not dis entitled himself from asking for specific performance by grant ing a lease to the plaintiff No.2. for, the lease hold right would attach only when the properties have been reconvened to plaintiff No.

1. In this view of the matter, both the Courts below decreed the suit in favour of the plaintiff against defendant No. 1 and dismissed it against the other defendants who were not considered to be necessary parties. It is against this decision that the said defendant No.1 has come up on appeal to this Court, and here also the same grounds have been urged, namely, (1) that the ekrarnama being without consideration could not be specifically performed (2) that even if it could be specifically performed, plaintiff No. 1 had failed to make any valid tender of the consideration money stipulated therein and, therefore, failed to perform his part of the contract, and (3) that plaintiff No.1. having grant ed a leave to plaintiff No. 2, had divested himself of his right to the possession of the properties in question and, therefore, was not entitled to ask for specific performance. Since the kabala and the ekrarnama were made by two separate documents, there can be no question that the transac tion thus entered into could not be deemed to be a mortgage by conditional sale by reason of the terms of the proviso to clause (c) of section 58 of the Transfer of Property Act. This does not, however, mean that the contracts thus entered into were of no legal effect, as contended by the learned advocate for the appellant. That such contracts for sale and re-convey ance, though independent contracts, are valid and are legally enforcible is clear from a series of decisions of the Indian High Courts as also of the Judicial Committee of the Privy Council. Thus, in the case of Bhagwan Sahal v. Bhagwan Din and others (17 1 A 98: (1890) 12 All. 387), where also the contracts were entered into by two documents, namely, a deed of transfer and an agree ment for retransfer and it was contended that the documents being contemporaneous really created a mortgage by condi tional sale, their Lordships took the view that the docu ments created independent transactions‑the first one was an absolute conveyance and the second gave a right to repurchase on payment; but Sir Barnes Peacock, in delivering the opinion of the Board, quoted the observations of Lord Chancellor Granworth in the case of Alderson v. White (De. G & J p. 105), where the noble Lord Chancellor expressed the view that such a contract. although not a mere mortgage, was a lawful contract. Again, in the case of Narain Chandra Mukerji v. Mahendra Nath Mukerji and others (15 C L J 332); Sir Lawrence Jenkins, Chief Justice, and Chatterjee, J, in similar circumstances, where there was a conveyance of a property and an ekranama was executed on the same day to resell the property to the vendor within a period of 10 years on receiving the considera tion thereof added with another condition for erection of a dwelling‑house on the land in question within the said time, granted specific performance of the contract even though the stipulation with regard to the erection or the dwelling‑house had not been fulfilled. Their Lordships took the view that failure to perform the other condition was due to obstructions of the defendants themselves and hence the plaintiff was exempted from the performance of the other condition in contract. The true legal character of such contracts also fell to he considered in the case of Sara Veeraswami alias Lare Veer raju v. Talluri Narayya (deceased) and others (A I R 1949 P C 32; P L D 1948 P C 219) by their Lordships of the Judicial Committee and their Lordships observed as follows:‑ "The agreements to sell and to reconvey may, therefore, be taken as contemporaneous. Such an arrangement may, on occasion, amount to but a single transaction of the nature of a mortgage. On the other hand it may contemplate two distinct transactions, an absolute sale followed by a resale in certain events. It is not always easy to discern the true intendment but that an arrangement of this sort can constitute an agreement for an absolute sale and a subsequent resale without any relationship of debtor and creditor about it has long been recognised by this Board, as in Bhagwan Sahai v. Bhagwan Din and by the Courts in India. Here, if the arrangement was in truth a mortgage, the appellants must fail, for in that case, the oral agreement would obviously contradict the terms of the sale deed . . . . . . . . . . . . . In their Lordships' opinion the correct way of stating the position is to say that the agreement reached covered several matters but that the intention was that each of these should be effected as a separate and independent transaction. There was to be an outright sale and that, upon the happen ing of a certain event, was to be followed by a re-conveyance of what had been sold. The second transaction, by its very nature, promised the previous completion of the first. Both, it is true, may be taken as arranged at the same time and agreement upon one part of the bargain may well have promoted agreement as to the rest." It would thus appear that there is nothing in law to prevent the parties from entering into a simultaneous agree ment for sale and resale. The two agreements in such a case are inter‑dependent in the sense that the agreement upon one part of the bargain may well have promoted agreement as to the rest and so long as they are intended to be effected as separate and independent transactions‑outright sale followed by re-conveyance‑they are both legal and prove-able in law. The option in such cases given to the vendor to have a resale of the property is an undertaking by the purchaser of which the sale by the vendor forms the consideration and, therefore, gives rise, in my opinion, to a mutually enforceable contract. The vendor in such a case be executing a sale had already performed the part assigned to him and, as such, the vendee having taken the benefit of the performance by the vendor of his part of the contract cannot be allowed to resile from his undertaking. In this view of the matter, it is clear that in the present case upon the concurrent findings of both the Courts below that the kabala and the ekrarnama was executed on the same day and at the same sitting, they formed contemporaneous agreements and the consideration for the ekrarnama, was IB part the execution of the kabala and the transfer of the lands thereby made. The Courts below, therefore, were, in my opinion, perfectly right in coming to the view that the contracts thus evidenced by the two documents, namely, the kabala and the ekrarnama, were perfectly valid contracts and were capable of being specifically enforced. Next with regard to the question as to whether there had or had not been a valid tender of the consideration money by plaintiff No.1. I am afraid this question cannot be agitated by the appellant as it is concluded by a concurrent finding of fact of the Courts below, which I have no jurisdiction to disturb in second appeal. Lastly, with regard to the contention that plaintiff No.1 had, by reason of the lease granted in favour of plaintiff No.2, disentitled himself from asking for specific performance. I am also in agreement with the Courts below that there is no substance in this contention. The right of the plaintiff to claim re-conveyance of the lands was in no way affected by the granting of the lease, for, the lease itself could not have taken effect until the properties had been re-conveyed and possession thereof could be made over to the lessee. These are all the arguments advanced on behalf of the appellants in this appeal and, since all of them have failed, I dismiss this appeal but there will be no order as to costs to the contesting respondents as they are minors appearing through the Deputy Registrar. Z. A. S. Appeal dismissed.