P (PLP)

M. R. KAYANI, J.‑This second appeal arises from a decree of the Senior Subordinate Judge of Silakot, confirming a decree of Qazi Muhammad Gul, Subordinate Judge, and is altogether unique in circumstances. The property in suit is only eight kanals in area (with certain kothas) and is part of a larger estate of 83 kanals 17 marlas owned originally by two Sikhs, Gandu and Mangal Singh, who had mortgaged it with possession to Umar Din, defendant No. 1 for Rs. 24,000, at some date prior to 1944. On the 19th of January 1944, the owners sold the equity of redemption to the plaintiffs or their predecessors‑in‑interest by a registered deed (Exh. P. 1) for Rs. 33,

000. The vendees paid Rs. 9,000 in cash and retained the balance for payment to the mortgagee, Umar Din. One condition of the sale, and this is not in dispute now, was that upon redemption of the mortgage the vendees would reconvey to the Sikh owners 8 kanals out of the mortgaged property and one half of the kothas, free of cost or encum brance. These 8 kanals were specified, but there was an alternative provision for conveying equal area there instead out of other land belonging to the vendees in the same village. About three months later, on the 28th of April, 1944, however, the Sikh owners executed another registered deed in favour of the plaintiffs, selling to them their right of recon veyance for Rs. 3,

000. On the 25th of January 1945, Mehnga defendant No. 2, apparently at the instance of Umar Din defendant No. 1, brought a suit for pre‑emption against the plaintiffs, basing it on the sale‑deed Exh. P. 1, and obtained a decree on the 10th of November 1945, "subject to the plaintiff's right to get the land redeemed from the previous mortgagee in accordance with and subject to the terms of the sale‑deed". It would be instructive to state here that the present plaintiffs, in their written statement as vendees, did not mention the second sale of April 1944 nor based any claim thereon for more purchase money. On obtaining the decree, Mehnga made payment to the plaintiffs and. went through formal execution. On the 25th March 1946, Mehnga sold his rights under the decree to Umar Din the mortgagee, reserving 8 kanals to himself. The sale‑deed Exh. P. 3 which he executed shows abundantly that funds for the per‑emption suit had been advanced by Umar Din. There is nothing in the deed, however, to indicate that these eight kanals which Mehnga reserved for himself had any reference to. the eight kanals which the plaintiffs had to reconvey to the Sikh owners. On the other hand ; it appears that originally Mehnga had contracted to reserve for himself only four kanals. The present suit was brought by the plaintiffs on the 26th March 1948, for the possession of the eight kanals and kothas as to which the Sikhs had sold their right of reconvey ance to the plaintiffs by sale‑deed Exh. P. 4, dated the 28th of April, 1944. The suit was resisted only by Umar Din, the first defendant, whose objections are reflected in the following issues :‑

1. Was it a condition in the sale‑deed executed by Gandu and Mangal Dass (Exh. P. 1) that the vendees upon the re demption of the land sold, would reconvey the suit property free of cost and encumbrances, to the vendors?

2. If issue No. 1 is proved, are the defendants bound by the condition?

3. Have the plaintiffs waived their rights under the sale- deed, copy Exh. P. 4, or otherwise estopped from suing on its basis?

4. Is the suit barred under Order 2, rule 2 or under the principle of res judicata?

5. Are the rights of defendant No. 1 in the suit pro perty protected under section 41 Transfer of Property Act?

6. Are the plaintiffs estopped from suing?

7. Relief. The trial Court found all the issues for the plaintiffs and decreed the suit. The learned Senior Sub‑Judge affirmed the decree. The subject‑matter of the first issue is no longer in context, nor has any reliance been placed before me on Order 2, rule 2, C. P. C. The estoppel mentioned in the sixth issue rested on a previous suit by the plaintiffs for redemption, from which subsequently the suit property was excluded, and is, again, not relied upon before me. The arguments of Mr. Yaqub Ali, who represented Umar Din appellant‑defendant, related to the following points.

1. The right of reconveyance in Exh. P. 1 was a personal covenant between the Sikh owners and the plaintiffs and did not affect the pre‑emptor. If, however, the pre‑emptor is treated as a person substituted for the plaintiffs and subject to all his rights and liabilities, the burden of the covenant could not be transferred to Umar Din who was not a "substituted person " but a purchaser from him. Further, Umar Din was not a transferee with notice of the personal covenant.

2. The benefit of the contract could not be transferred by the Sikh owners to a third person, in this case the plaintiffs.

3. The covenant, being indefinite as to the date of per formance, violated the rule against perpetuity enunciated in section 14 of the Transfer of Property Act.

4. After the purchase of the right of reconveyance by the plaintiffs, they were complete owners and the right of recon veyance had merged into the right of ownership. It could not be kept alive and cannot form the basis of a suit for possession.

5. The plaintiffs having failed to raise a defence in the pre emption suit on the right of reconveyance which they had sub sequently bought were barred by the principle of res judicata.

6. In any case, the suit should have been for the specific performance of a contract of reconveyance and not for posses sion. (1) On the first point, the main argument was raised on the language of section 40 of the Transfer of Property Act, which might well be reproduced here: Section 40.‑" Where, for the more beneficial enjoyment of his own immovable property, a third person has, indepen dently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoy ment in a particular manner of the latter property or where a third person is entitled to the benefit of an obligation arising out of contract, annexed to the ownership of immov able property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous trans feree of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands." Mr. Yaqub Ali said the present case fell neither under the first paragraph nor under the second, but that if it did, his client was a transferee in good faith and without notice. Since Mr. Kaikaus (counsel for the plaintiffs) relied on the second paragraph alone, Mr. Yaqub Ali's argument was narrowed down to the contention that this was not an obligation "annexed to the ownership of immovable property" but was a purely personal obligation. It seems tome that the illustration given in the text under section 40, (which has been stated in Mulla's Commentary to relate to the second paragraph) leaves little room for doubt that the present covenant, although personal, is nevertheless annexed to the ownership of land. The illustration is this: " A contracts to sell Sultanpur to B. While the contract is still in force, he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A." If this illustration is apt, as it should be, considering that it is the draftsman's own illustration, it means that a contract to sell land has an obligation annexed to its ownership, and if that be so, a contract to reconvey is on no different footing. Ordinarily, when one party reconveys, the other pays money, but in the present case the consideration is quite obviously grounded in the first sale of January 1944. Before I proceed to the case‑law on which Mr. Yaqub Ali relied, I should point out what appears to me to be a clear distinction between "an obligation‑annexed to the ownership of immov able property" which is the subject‑matter of the second paragraph of the section and "a covenant running with the land", an expression borrowed from the English law of real property and used in most cases relating to the transfer of property, cases which are illustrative merely of the first paragraph of section

90. The following passage from page 192 of Mulla's Commentary will make this clear : "under the Transfer of Property Act, covenants that run with the land an equity are the restrictive covenants referred to in the first paragraph of this section, where the rule in Tulk v. Moxhay is followed. As these covenants run with the land in equity, they cannot be enforced against a purchaser for value without notice, as stated in the last paragraph of the section". The rule in Tulk v. Moxhay (1848) (2 Phill. 774) may be illus trated : A sells a part in front of his house to B, who covenants not to build upon it. B sells the part to C, who has notice of the covenant. A can enforce the covenant against C, "for it is a covenant running with the land in equity". Having made this distinction clear, I shall proceed to Maharaj Bahadur Singh v. Balchand (1922 P C 165), which is the mainstay of Mr. Yaqub Ali's argument. The facts of that case are that in 1872 (and this date should be borne in mind, since the Transfer of Property Act came into being ten years later) a Rajah who owned a hill, agreed with the Jain Society to grant a site on the hill free of cost for building a temple if and when the Society should require it. In 1902, the Rajah granted a lease to his wife who transferred it to another person, and when the Society decided to build a temple, the lessee resisted it. In a suit for possession brought by the Society, the Privy Council held that the Rajah's grant could not be regarded as being one in perpetuity, since he still enjoyed over the land a power of disposal, and as the agree ment did not create some present estate or interest, it could not be enforced against an assignee. Such a convenant, their Lordships observed, does not run with the land. They further held (and this part of the judgment is relevant to the argument in relation to section 14, Transfer of Property Act) that if this be regarded as an agreement to grant in the future, as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision offends the rule against perpetuities. It should be noted here that their Lordships have regarded the covenant as an agreement creating "interest", and section 54 of the Transfer of Property Act says that a contract of sale "does not, of itself, create any interest in or charge on" property. As the covenant related to 1872, their Lordships should be assumed to have ignored section 54 and to have applied to it the equitable English doctrine that a contract for sale of real property makes the purchaser the owner in equity of the estate. The learned Commentator of Mulia's Com mentary has also observed at page 113, with reference to this case, that the agreement of 1872 "appears to have been treated as creating an equitable interest in land". This case cannot therefore, be treated as an authority for the interpretation of section

40. Jogesh Chandra Roy v. Asaba Khatun (1927 Cal. 41) merely follows Maharaj Bahadur Singh's case and may, therefore, be ignored. But there are some useful observations in it. In 1851 a putnidar had leased his land, providing that the lessees would give back to the lessor, if so required, such portion of the land as was required by the lessor. The lessee made a sub‑lease, with the same condition for the lessor's benefit. It was held that this was not a covenant running with the land." "A covenant that runs with the land is something which restricts the user of the land and not a positive covenant of this nature. A positive covenant never runs with the land, either in law or equity". The learned Judges, it will be noted, treated restrictive covenants as running with the land, and as restrictive covenants are the subject‑matter of the first paragraph, I am safe in holding that the expression "running with the land" has been used in relation to that paragraph. An example of such positive and affirmative covenants is furnished by Haywood v. Brunswick Permanent Building Society (1881) (Q B D 403). A covenant to spend money in building or repairs is an affirmative covenant and cannot be enforced against a purchaser "by making him put his hand into his pocket". A covenant not to build is a restrictive covenant recognized by the first 'paragraph of section

40. It will be of interest to remember that before this paragraph was amended in 1929, it also con tained the words "to compel its enjoyment" in addition to the present words "to restrain the enjoyment", thus recognizing the right of the transferor to compel the performance of an affirmative covenant as against a purchaser from the transferee with notice. The amendment has accepted the principle of Haywood v. Brunswick Permanent Building Society and confined the paragraph to restrictive covenants. In Formby v. Barker (1903) (2 Ch. 539), another case relied upon for the appellant, the sale‑deed contained a covenant that the purchaser company shall not build on the land sold a beerhouse or shop. The vendor had no other property for whose benefit this condition could operate. The purchaser company then sold the land to the defendant who threat end to build a shop. Thereupon the original vendor's widow brought a suit for injunction. It was held that the covenant was personal because it had not been entered into for the benefit of any land belonging to the vendor or of any land designated in the .deed and that consequently it could not be enforced against a purchaser from the covenantor. "If restrictive covenants are entered into with a covenantee, not in respect of or concerning any ascertainable property belonging to him, or in which he is interested, then the covenant must be regarded, so far as he is concerned, as a personal covenant‑that is, as one obtained by him for some personal purpose or object". It was observed that the principle of Tulk v. Moxhay did not extend to such a case. Apart from the fact that the decision is on English law, the right involved in this case is quite obviously personal and does not "run with the land" because there is no land left for whose benefit it can run. Again, the covenant was of a restrictive character and could fall‑if it falls anywhere only under the first paragraph of section

40. While on this part of the case, Mr. Yaqub Ali also argued that so far as the matter concerned Mehnga as a pre‑emptor, he was not affected by the personal covenant, and in support of his case he relied on Mst. Banti v. Mandu (1928 Lah. 357). In that case the pre‑emptor, who had obtained a decree to a part of a joint holding, found on applying for partition that the vendor was owner of only a part of the land sold by him. Relying upon the indemnity clause in the sale‑deed, he filed a suit to recover the deficiency in the land. It was held that his right to be substituted for the vendee was limited to the property actually conveyed and that the indemnity clause was a personal covenant not running with the land. For the land which the vendor might have given to the vendee to make up deficiencies may not be subject to pre‑emption, or the vendee's claim to hold it may be superior to that of the pre‑emptor. I think it is idle to run away with the idea that wherever the expression "running with the land" is used, howsoever different the context may be, the situation should be trotted in to suit the present set of circumstances. What Mst. Banti v. Mandu intends to say is that the pre‑emptor is not entitled to the benefit of a personal covenant such as a covenant of indemnity, but it does not say that the pre‑emptor is free also from the burdens of the sale, and considering that it relies on Sandhe Khan v. Bhana (141 P R 1907) it will be edifying to produce an apt quotation from the latter case. "A pre‑emptor has no right" so it says, "to the advantage of a purely personal covenant by the vendor in favour of the vendee, which is a thing quite separate from the sale of immovable property. The pre‑emptor is neither the representative of the vendor nor the assignee of the vendee, nor has he any "right of pre‑emption over any personal covenant, But here there is no benefit arising to the vendees‑the plaintiffs from the sale‑deed Exh. P. 1 from which the pre‑emptor should be excluded. On the contrary there is a burden annexed to it of reconveyance, and if the Sikh owners had not sold their right to the plaintiffs by Exh. P. 4. since Mehnga obtained his pre‑emption decree "in accordance with and subject to the terms of the sale‑deed" Exh. P. 1 there can be no question that he would have had to recovery these 8 kanals to the Sikh owners after redemption from Umar Din. Mr. Kaikaus in the first place replied that the question of the application of section 40 did not arise as the provision in the sale‑deed Exh. P. 1 relating to reconveyance amounted to an out and out sale in which part of the price‑Rs. 9,000 had been paid by the plaintiffs and part promised in the shape of land to be reconvened. In that view of the case the vendors the Sikhs, and through them, the plaintiffs as purchasers of their right‑would be entitled to the 8 kanals as "unpaid balance". This argument, however is misconceived, as according to section 54 of the Transfer of Property Act, sale is a transfer of ownership in exchange for a price not in exchange for land, and there is abundant authority for the view that "price" in this context means "money" not anything else. (See 45 Mad. 612 ; 92 I C 265 ; 102 I C 143). For the same reason, any reference to the seller's title under section 55 (4) (b) "to a charge upon the property in the hands of the buyer" for unpaid purchase‑money, arid the buyer's title under subsection (6) (b) of the same section "to a charge on the property" where he has paid the purchase‑money in anticipation of the delivery to him, is inapt, and it is, therefore, unnecessary to examine any of the rulings which he cited in relation to these two provisions of section

55. But he rightly pointed out that the second paragraph of section 40 covered a contract for sale‑and therefore a contract for reconveyance‑and had provisions analogous to section 27 (b) of the Specific Relief Act and section 91 of the Trust Act. Under section 27 of the Specific Relief Act, specific perfor mance of a contract may be enforced against (a) either party thereto ; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who had paid his money in good faith and without notice of the original contract. The second illustration to clause (b) is as follows :‑ A contracts to sell certain lands to B for Rs. 5,

000. A afterwards conveys the land for Rs. 6,000 to C, who has notice of the original contract. B may enforce specific performance of the contract as against C". This, it will be noticed, is virtually the same illustration as that given below section 40 of the Transfer of Property Act in respect of Sultanpur lands. I should like to wind up the case on this point by a quotation at page 116 of Mulla's Commentary from which I have derived great help. After examining the views of the various High Courts with reference to the rule against perpetuity, the learned commentator makes the following observations : "In conclusion, it is submitted, that an agree ment for the sale of land is not subject to the rule against perpetuity. It is a personal contract and has the following incidents, viz., (1) it is binding on the immediate parties and on their personal representatives ; (2) the benefit of it can be assigned by the intending purchaser ; and (3) it creates an obligation arising out of contract and is enforceable under section 40 against a purchaser for value with notice or against a gratuitous transferee". A contract for reconveyance shares these incidents with a contract of sale, except that if it possesses a pre‑emptive attribute, incident (2) will not apply to it. This will happen when the buyer contracts that in the event of sale by him of the same land he will give the first option to the seller. When it is said that a contract is personal, the intention is to say that it does not create an interest in land, and the term "personal" is used in relation to the definition in section 54 of the Transfer of Property Act‑that a contract of sale does not by itself create an interest in or charge upon immovable property. A contract, therefore, may be personal and yet create an obligation annexed to the ownership of land ; and, in fact, all contracts falling under the second paragraph of section 40 are by their very nature personal, since it is expressly stated that the benefit of the obligation arising out of such contracts should not amount to an interest in immov able property or an easement thereon. The words "annexed to the ownership of immovable property" used in relation to an obligation arising out of contract mean no more than that such obligation concerns, or touches or relates to the ownership of such property. That is so because unlike the first paragraph of section 40; the second paragraph does not presuppose the ownership of property. There now remains the question whether Umar Din, the transferee from Mehnga, had notice of the contract between the Sikh owners and the plaintiffs. That he had notice, both actual and constructive, is a matter which might have been conceded gracefully. The suit for pre‑emption had been brought by Mehnga at Umar Din's instance, and Umar Din had advanced funds also towards its successful prosecution. Based as the suit was on the sale‑deed Exh. P. 1, it is difficult to imagine that Umar Din was not familiar with its contents. Under section 3 of the Transfer of Property Act, "a person is said to have notice" of a fact when he knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Now in the sale‑deed Exh. P. 3 which Mehnga executed in favour of Umar Din, the vendor states that he was selling to Umar Din "all the rights which Gandu, etc., had sold by sale‑deed dated the 29th January. 1944, and which I have acquired by pre‑emptions and if Umar Din now says he had not seen the sale‑deed of January 1944, although his right sprang from it, he must be held to have wilfully abstain ed from an inquiry. Further, Explanation I to section 3 provides that "where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property ...... shall be deemed to have notice of such instrument". (2) The next contention is that a personal right such as the two Sikh owners had acquired could not be transferred by them. It was pointed out that under section 6 of the Act only "property" can be transferred and that a right of reconveyance was not property and was perhaps a mere right to sue. Further, under clause (d) of the section, "an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him". Now it seems to me that since the general rule under section 6 is that "property of any kind may be transferred" and that what is non‑transferable has been stated there in the form of exceptions, it was intended to use the term in a very wide sense. Thus, in exception (b), "a mere right of re‑entry for. breach of a condition subsequent" is not transferable except to the owner of the property affected thereby ; which means that the owner affected by the breach has a right of re‑entry which he can transfer. Now if a mere right of re‑entry can be transferred in certain cases, it follows that the Act treats this right as "property". A fortiori, a right to the reconveyance of immovable property, being ever so much more solid than a right of re‑entry, should be treated as property. As regards clause (d), its application depends on two conditions, namely, (1) that what is transferr ed is an interest in property and (2) that it is restricted in its enjoyment to the owner personally. Neither condition is fulfilled. If, under section 54, a contract of sale cannot create interest in immovable property, a contract to reconvey also does not create any interest. As regards condition (2), there should be something positive to indicate that it was intended to restrict the enjoyment to the owner personally. Such interests are by their very nature restricted to a person or a class of persons. Examples are (1) a right of preemption, (2) a grant for maintenance, (3) a religious office. Then it is to be noticed that the Specific Relief Act, which came into force five years after the Transfer of Property Act, could not have intended by the operation of section 23, clause (b) to render this provision of the Transfer of Property Act innocuous, for section 23 says that the specific performance of a contract may be obtained by any party thereto or his repre sentative‑in‑interest, except where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned. Now since an agreement which is enforceable by law is a contract, and an agreement to reconvey, property is enforceable by law, it is clearly a contract within the meaning of section 23 of the Specific Relief Act, so that its specific performance may be obtained against a representative‑in‑interest. In Gobardhan v. Raghubir Singh (1930 All. 101), upon which Mr. Yaqub Ali relied, the facts were that one Gayadin sold land to Gobardhan for Rs. 1,400 and on the following day obtained from him a covenant to reconvey to "Gayadin or his male lineal descendants at any time they or any of them desired to purchase" for the same amount. Gayadin died and his son Raghubir sold two‑thirds of his right under the agree ment of reconveyance to Badri and Baldeo, who sued Gobardhan for possession. It was held that the agreement merely gives a right of repurchase to specified individuals the vendor and his male lineal descendant‑and that as Badri and Baldeo were not such descendants, they had no right of suit. It did not create a right which can run with the land, or a right which can enure for the benefit of the covenantee's legal representatives. It was no more than a privilege. If Gobardhan v. Raghubir Singh was correctly decided, it supports Mr. Yaqub Ali's case to a large extent, though even here there is room for the argument that the addition of the words "or his male lineal descendants" to "Gayadin" point to an intention to confine the right to a prescribed category, namely, such descendants of Gayadin as come in the direct line and are male. In the absence of these words it is questionable whether the learned Judges would have held that the right is personal to Gayadin and does not extend to his legal representatives. But if this case is not to be confined to its own facts, it offends against the decision of the Privy Council in Saklanguna Nayudu v. Chinna (1928 P C 174). In 1891, V. S. sold a village for Rs. 10,000 to V. N. on his own behalf and on behalf of his minor son, K. .executing on the same day a "counterpart document" by which it was provided that the vendee should reconvey the property to the vendor (his son was not mentioned, but was implied) for the same money after a period of thirty years, if the vendor should want to buy. The vendor was later adjudged insolvent and after his death his son, in 1910, assigned to the plaintiff his right, to the benefit of the "counterpart document". Subsequently, some sort of a discharge was obtained from the Official Assignee for the benefit of the plaintiff. In 1919, both the vendor's son and the vendee died, and in 1920 the plaintiff brough a suit against the vendee's sons for having the village conveyed to him. It was held that the counterpart document of 1891 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. This decision was followed in Vishweshwar Narsabhatta Gaddada v. Durgappa (1940 Bom. 339) and Seth Bhabhootmal v. Moolchand (1943 Nag. 266). In the former case it was observed by Beaumont C. J. that both under the Common Law and section 23 (b), 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. The covenant provided that after a period of 15 years "neither you nor your successor‑in‑title have any right to claim reconveyance; and the suit was within this period. In the latter case, the vendor was to become entitled to certain property on payment of certain money on the basis of a decree. The vendee contracted to pay off the money and convey back to the vendor a part of the property. It was held that an agreement for sale or purchase of immov able 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. A very instructive case on this point is Raja Bahadur Narasingerji v. Raja Panuganti (1921 A W N 519), where the second defendant sold for six lakhs property which was subsequently estimated at fifteen lakhs, with condition to reconvey for the same amount after a specified period. The plaintiffs at an auction sale bought the right, title and interest of the second defendant and sued the first defendant for reconveyance. The learned judges, repelling the argument that the right of reconveyance was a mere right to sue, observed : "The prohibition of the transfer of a mere right to sue is only an application to 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". Reference was made to Glegg v. Bromley (1912) (3 K B 474) where Parker, J. has explained the equitable doctrine as to the assignment of a bare right to sue in the following passage which was cited with approval in two subsequent cases in the King's Bench Division: The test is "whether the 'subject‑matter of the assignment was, in the view of the Court, property with an incidental remedy for its recovery or was a bare right to bring an action either at law, or in equity". It was then observed that the second defendant's right would have been treated in equity as property. Holding, therefore, that the Sikh owners could assign their right to the plaintiffs, I proceed to the third point. (3) I have already indicated, from the quotation at page 116 of Mulla's Commentary, that the rule against perpetuity is not violated by a mere contract for the sale of land. That rule is contained in section 14 of the Transfer of Property Act, which may be reproduced for convenience of reference :‑ Section 14.‑"No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong". It will be noticed that the rule is intended to prevent the creation of an "interest" in property, and as a contract to sell does not by itself, create interest in immovable property (Section 54), the rule is not applicable to such cases. The learned counsel relied on Maharaj Bahadur Singh v. Balchand (1922 P C 165) to which I have already referred, but that case related to an agreement of 1872 and it is understood that Their Lordships were not taking account of section 54 for that reason. Even apart from this interpretation, the period indicated in the agreement is not so indefinite as to attract the rule against prepetuity. The plaintiffs were to reconvey eight kanals of land to the Sikh owners upon redemption of the property from Umar Din and as money had been left with the plaintiffs for payment, it was their duty to proceed at once to the task of redemption in order that they should not make themselves liable to interest for the "unpaid balance of purchase money" under section 54 (4) (b) of the Act. The argument is, therefore, futile. (4) We have now reached a point where we face an extraordinary situation. If the Sikh owners had sold their right to reconveyance to a stranger, the stranger could have enforced it against Umar Din. But since they sold it to the very person with whom they had contracted, it is said that the right had become absorbed in the plaintiffs' ownership. If the two "estates" can be kept alive under section 101 of the Transfer of Property Act, well and good ; if not, they merge. It is obvious that since section 101 deals only with mortgagee and charges, it is inapplicable to the present case ; but this does not necessarily mean that where section 101 does not apply, the rule of merger should be applied. The section as it stands makes non‑merger the rule, and consequently merger an exception. Mr. Kaikaus, on the other hand, argued that merger was unknown to our system of law, and suggested that the principle on which section 101 rested may be applied here. It is unnecessary, however, to divorce ourselves from reality in the contemplation of abstract doctrines. By the sale‑deed of January 1944, the plaintiffs had become owners of 83 odd kanals, with the condition that they would lose 8 kanals on the happening of a certain event. If in the meantime they had sold these 8 kanals to a third party, both they and their transferee would have been answerable to Gandu and Mangal. In respect of these 8 kanals, therefore, their ownership had been restricted. By the sale‑deed of April, 1944, they purchased the right which had occasioned the 'restriction and became absolute owners of these 8 kanals, with power to effect further transfer. Left to themselves, they had no doubt become absolute owners of these 83 odd kanals, but they were not left to themselves. They were attacked by Mehnga, and as the attack was grounded on one sale only, the first sale, the other sale was left intact. The question should not be whether it was possible for the plaintiffs having become unrestricted owners, to keep the restriction alive against the pre‑emptor, but whether the pre‑emptor; having based his suit only on the first sale, could claim the benefit of the second sale also. For if we hold that the plaintiffs' owner ship could not be split in this extraordinary style after the execution of the second sale, we should be landed into the untenable position of giving to a pre‑emptor more than he asks for, thus indirectly revolting against settled judicial authority that the right of pre‑emption is merely a right of substitution. We have permitted it to be defeated by ingenious devices and I have not come across a case where anything but reluctance has been displayed in extending its scope. Whether the plaintiffs were justified in concealing the fact that they were unrestricted owners is a different matter, to which we might advert now. (5) The question now is whether the plaintiffs' failure to mention the second sale in his defence to the pre‑emption suit prevents him from relying upon it now. The question is based on Explanation IV of section 11, Civil Procedure Code, which requires not only that the matter in issue should be such as might have been raised in the former suit, but also that it ought to have been raised. It was contended that as defen dants in the pre‑emption suit the plaintiffs should have pleaded that there was a second sale in existence, that the total sale price was Rs. 36,300, not Rs. 33,000 and that Mehnga was not entitled to the possession of 8 kanals. Relying on Srimut Rajah Moottoo v. Katama Natchiar (1866) (11 Moore's Indian Appeals 50), it was submitted, in the words of Their Lordships, that "when a plaintiff claims an estate and the defendant, being in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward". In that case the defendant in the former suit claimed both on the basis of a will and on the fact that the property of the deceased was the undivided property of a Joint Hindu Family, but later gave up his claim on the will, and when he failed in his second contention, he brought a fresh suit claiming on the will. It will be noticed, however, that both these grounds of defence were such as would have defeated the suit completely. Now what is it that the plaintiffs could contend in this suit which would have defeated the claim wholly or partially? They might have said that there was a second sale also in their 'favour, but was it necessary for them to disclose it? It would not have defeated the pre‑emptor's claim under the first sale, which, as it stood, carried an obligation with it. n That obligation was reflected in the decree, inasmuch as it was provided that redemption would be in accordance with the terms of the sale‑deed. The plaintiffs could have gained nothing by the disclosure, and, on the contrary, they might have lost by it, for the pre‑emptor might have asked for the amendment of the plaint and included the second sale also in his claim. The plaintiffs were under no obligation to assist him in depriving them of the entire crop of peaches. It might well have happened that they had not purchased these eight. kanals at all by the first sale and had purchased them by the second sale. Could the pre‑emptor then complain, after the period of limitation was over‑"But why did you not tell me in good time that you had purchased these eight kanals also"? Or they might have said that they had paid another three thousand. But that payment was for another transaction, and if the pre‑emptor had chosen to pre‑empt only the first sale, although‑let it be assumed‑he knew of the second sale also, would he be under any obligation to pay this money also to the plaintiffs? If the answer is no, as it should be, the plaintiffs could not have defeated any part of the claim by this disclosure. It was then argued that the plaintiffs should have said that the pre‑emptor was not entitled to these eight kanals. But that was quite unnecessary, as the pre‑emptor did not claim to be entitled to these eight kanals. He based the claim on the sale‑deed, which contained sufficient guarantee as to this land, and the guarantee was respected by the subsequent decree. The plaintiffs could not say they were entitled to retain this land, for they became entitled only after it had been redeemed, and that event belonged to the future. All they could say was that they had something up their sleeve which they would produce after the redemption, and that would not have been fatal to any part of the suit. It is elementary that what the defendant might and ought to say should be something in answer to the claim, and that if there is something which is not in the claim, but which excites him, he might well suppress his excitemement and "let sleeping dogs lie". Mr. Kaikaus raised another point also for the plaintiffs. He argued that inasmuch as in the former suit the plaintiffs were mere title‑holders in the subject matter while in the latter suit they were the beneficiaries of an obligation, they were not litigants under the same title. It is true that in the pre‑emption suit the plaintiffs figured as owners and that now they figure as beneficiaries. They could have said, however, while defending the former suit, that they were beneficiaries in respect of eight kanals. In respect of these eight kanals, therefore, their title is the same. Whether they ought to have said so is a matter which has already been disposed of. But there is something to be said for the argument that in resisting the present suit on any ground, Umar Din, as repre sentative of the pre‑emptor, is himself violating the principles of res‑judicata inasmuch as by the express terms of the decree, redemption was to take place "in accordance with and subject to the terms of the sale‑deed" Exh. P. 1, and one of the terms was that this land should be reconveyed after redemption. (6) Lastly, it was argued that the suit should have been one for specific performance and not for possession. The basis of the claim as put in the plaint is title, and since the plaintiffs had no title at the date of the suit, their claim should have been dismissed. It was admitted for the plaintiffs that the suit should have been one for specific performance, but it was argued that the objection was very late and that a request for specific performance was implied in the prayer for posses sion. The plaint states in paragraph 5, after recounting in paragraph 1 the restrictions on the sale‑deed, that Gandu and Mangal had subsequently sold eight kanals of specified land to the plaintiffs and given over possession to them. 'This recital as to possession having been delivered should be treated as formal, for, read as a whole, the plaint indicates the mortgagee's possession. In paragraph 7 it is said that by virtue of the sale of 28th April 1944, the plaintiffs were entitled to possession without making any payment. In paragraph 8, it is stated that by virtue of the provision in the sale‑deed of January 1944, the defendants were under an obligation to transfer this property to the plaintiffs without cost. The general sense of the plaint, therefore, is that the plaintiffs are entitled to possession on the basis of the contract contained in the sale‑deed of January 1944, and their right acquired by the sale‑deed of April 1944, and except that there is no express mention of the words "specific perfor mance", we cannot fail to see that possession is sought on that basis. Mr. Yaqub Ali relied upon Mian Pir Bakhsh v. Sardar Muhammad Tahir (1934 P C 235), which, however, deals with an entirely different set of facts. The Collector of Sukkur had made a grant of land for building purposes in favour of an Afghan refugee, Sardar Muhammad Tahir, and as the Sardar had applied to Government for permission to settle perma nently at Quetta, the Collector induced him to enter into an agreement with Mian Pir Bakhsh, another applicant for a site, to transfer the land to Pir Bakhsh in the event of his being permitted to settle in Quetta. The necessary permission came, but Tahir did not transfer the land to Pir Bakhsh. The Collector thereupon cancelled the grant‑and it is understood that the cancellation was illegal‑and gave over possession to Pir Bakhsh. Tahir filed a suit for possession, which ultimately succeeded on the ground that Pir Bakhsh was merely the beneficiary of a contract of sale, which, by itself, does not create any interest in land (section 54), and that the title was still with Tahir. It was held that the averment of the existence of sale was no relevant defence to an action by the owner for ejectment and that what Pir Bakhsh ought to have done was to file a suit for specific performance and obtain an order of stay for Muhammad Tahir's suit in the meantime. This question clearly does not arise here, for the plaintiffs are not in possession ; nor have they resisted any suit by Umar Din for their ejectment. Mohan Lal v. Wadhawa Singh (1930. Lah. 997), Bhide, J. held that a suit for possession could be treated as one for specific performance. In that case one Rur Chand had mortgaged land in favour of Wadhawa, stipulating to make up the deficiency if Wadhawa should be deprived of it by any legal process. Owing to a claim by a third party he was deprived of the land and he filed a suit for possession of an equal area of other land belonging to the vendor, which had meanwhile been mortgaged to a third person. It was contended against him that this could not be treated as a suit for specific performance, as according to the deed on which he relied he was not entitled to claim any specific land. It was held, however, that the contract was to make up the deficiency in a specified manner, and the suit being for the performance of the contract in that manner should be treated as one for specific performance. In Betts v. Muhammad Ismail Chowdhry (25 S W R 521), a suit for the recovery of land on the basis of a compromise was treated as a suit for possession, not as one for specific performance. In Sundara Ramanujam Naidu v. Sivalingam Pillai (1924 Mad. 360), it was held that a suit for specific performance of a contract to sell a shop with an additional prayer for possession does not make it different for the purpose of Court‑fee. The delivery of possession is part of the specific performance of a contract of sale, unless the terms thereof show that the vendee was not under an obligation to deliver possession. A similar view was taken in Atal Behary Acharya v. Barada Prasad Banerji (1931). Pat. 179), where it was held that, incidental to the relief in a decree for specific perfor mance arising on a contract for sale, the Court has a right to grant possession of the property. Therefore, if the plaint omits to ask for possession, the executing Court is not debarred from granting it. In the converse case, where the suit is one for possession, though based on the specific performance of a contract, the position is stronger for the plaintiff, and the difference is that of Court‑fee only. If the matter had been agitated at the proper time, there would have been a slight amendment and an additional Court‑fee, and I do not see how the defendant can be allowed to throw away all this effort by waking up to his duty in second appeal. Section 99 of the Code of Civil Procedure says no decree shall be reversed in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. It Muhammad Hussain Khan v. Babu Kishva Nandan Sahai (1937 P C 233), where a widow had joined two conflicting causes of action in one suit and had been allowed to prosecute her suit despite objection by the defendant, and the objection had been renewed before the Privy Council, it was held that the objection should not be allowed to prevail, as it would mean waste of all labour and time expended on the trial, and that section 99 cured the defect. I think it can safely be said that the plaintiffs, in filing a suit for possession instead of a suit for specific performance, merely committed an error of procedure which affects neither merits nor jurisdiction, and I think nothing more can be said than this. In the result, the appeal is dismissed with costs. A. H. Appeal dismissed.