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PETITIONER: HABIBA KHATOON

       Vs.

RESPONDENT: UBAIDUL HUQ & ORS.

DATE OF JUDGMENT:       05/08/1997

BENCH: S. B. MAJMUDAR, D. P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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.

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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

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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

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    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

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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

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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

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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.

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(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

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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.