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PETITIONER: T.M. BALAKRISHNA MUDALIAR

       Vs.

RESPONDENT: M.   SATYANARAYANA RAO AND OTHERS

DATE OF JUDGMENT31/03/1993

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KULDIP SINGH (J)

CITATION:  1993 AIR 2449            1993 SCR  (2) 888  1993 SCC  (2) 740        JT 1993 (3)   673  1993 SCALE  (2)375

ACT: Specific  Relief Act, 1963-Section 15(b)--Representative  in interest--Whether plaintiff falls in--Plaintiff’s suits  for specific  performance  of the  agreements  of  reconveyance- Legality of. Documents--Agreements giving a right of repurchase (Exhibits A.3  and  A.4)  and registered deeds of  agreement  of  sale (Exhibits A.10 and A.11)-Construction-Plaintiff’s suits  for specific performance of the agreement for sale--Legality of.

HEADNOTE: On 17.4.1962, ’A’ and his mother ‘B’ sold their agricultural lands  measuring  3  acres  and  25  acres  respectively  by executing  two sale deeds in favour of Respondent  No.1  and his father for Rs.10,000 and Rs.75,000 respectively.  On the same  day,  the respondents  vendees,  taking  Rs.500  back, executed  two separate agreements in favour of ’A’  and  ’B’ giving  them  the  right of repurchase  at  any  time  after 17.4.1969 but before 16.4.1972. On  4.1.1963,  ’A’ and ’B’ executed agreements  of  sale  in favour  of the appellant for a consideration of  Rs.1,30,000 in  all.  The appellant paid Rs. 30,000 till April, 1963  to ’A’  and ’B’.  The appellant latter paid Rs. 12,500  to  ’A’ and  Rs.87,500 to ’B’ and the registered deeds of  agreement of  sale  were  executed by ’A’ and ’B’.   Again  a  sum  of Rs.1,000  was paid to ’A’ and Rs. 4,000 was paid to  ’B’  by the  appellant.   ’A’  and ’B’ handed  over  the  agreements executed by the respondent No.1 and his father in favour  of ’A’ and ‘B’, to the appellant. Respondent No. 1’s father died leaving behind his widow  and son,   respondent   No.1.  They  refused  to   execute   the reconveyance deed. The  appellant in the Court of Subordinate Judge  filed  two suits  for  specific performance of the  agreements  of  re- conveyance,  delivery  of possession and mesne  profits  one suit against the respondent No.1, his                           889 mother  and  ’A’ and the other one  against  the  respondent No.1, his mother and ’B’. In  the  first suit the appellant deposited  the  amount  of Rs.9,900 in the Court for payment to respondent No.1 and his

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mother and Rs.1,600 for payment to ’A’ and in the other suit he  deposited Rs.74,500 for payment to respondent  No.1  and his mother and Rs.9,000 to ’B’. The suits were decreed ex-parte.  As IV and ‘B’ did not rile any  application for setting aside the ex-parte decree,  the decree passed against them became final. Respondent  No.1 and his mother filed an application to  set aside the ex-parte decree and the Court set aside the decree and allowed them to contest the suits. The  suits were decreed against the respondent No.1 and  his mother against which they riled appeals in the High Court. The High Court setting aside the decree and judgments of the trial Court allowed the appeals riled by the respondent No.1 and his mother. The  plaintiff aggrieved against the judgments of  the  High Court preferred the present appeals by special leave  before this Court. Allowing the appeals, this Court, HELD:1.01. A combined reading of the documents Exhibits A.3, A.4, A.10 and A.11, leaves no manner of doubt that  ’A’ and  ’B’  had made an agreement to sell  the  properties  in favour  of the plaintiff and had also given a right to  make the payment of such amount to respondent No.1 and his father which  they were entitled under the terms and conditions  of Exhibits  A.3  and  A.4, the agreements of  resale  made  in favour of ’A’ and ‘B’ respectively.  The plaintiff had filed a  suit for specific performance of the agreement  for  sale impleading  ’B’  and  respondent  No.1  and  his  father  as defendants  in one case and ’A’ and respondent No.1 and  his father in another case and had also deposited the amount  of consideration  in  the Court which clearly proved  that  the plaintiff  was always ready and willing to perform his  part of  the contract.. There was no ground or justification  for the High Court to dismiss the suits filed by the  plaintiff. [894 E-G] 890 1.02.The High Court was wrong, in taking the view  that it was only IV and ’B’ who were entitled to get reconveyance from  respondent No.1 and his father and the  plaintiff  was not  entitled to enforce such right by a suit  for  specific performance against respondent No.1 and his father. [894-H] 1.03.The  High Court further erred in holding that  the restriction  of the period during which the plaintiff  could have got the sale deeds executed in his favour was two years while  ’A’  and ’B’ under Exhibits A.3 and  A.4  could  have exercised  such  rights within a period of three  years  and such difference in the period deprived the plaintiff of  his right  to  enforce the agreement  of  specific  performance. [895-B] 1.04.The plaintiff was exercising the right of specific performance  of  agreement  of sale  within  the  stipulated period of two years and it is unable to accept the reasoning of  the  High  Court as to how the  period  of  three  years granted  in favour of ’Al and ‘B’ in any manner affected  or took  away  the right of the plaintiff to bring a  suit  for specific performance. [895-C] 1.05.Under  the  terms  and  conditions  laid  down  in Exhibits  A.3 and A.4 the right of repurchase was not  given as personal to ’Al and ‘B’ and they were entitled to  assign such  right  and the plaintiff having got such  right  under Exhibits A.10 and A.11 was entitled to enforce such contract by riling a suit for specific performance.  The plaintiff in the   present  case  also  falls  within  the   meaning   of representative in interest as contemplated under Clause  (b) of  Section  15 of the Specific Relief Act, 1963.   On  such

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assignment,  the plaintiff-appellant acquired a valid  title to claim specific performance. [896-C] Sakalaguna  v. Munnuswami, AIR 1928 PC 174;  VisHweshwar  v. Durgappa,   AIR   1940  Bombay  339  and   Sinnakaruppa   v. Karuppuswami, AIR 1965 Madras 506, approved. [895-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal Nos.  1840  and 1841 of 1979. From  the Judgment and Order dated 24.1.1979 of  the  Madras High Court in Appeal Nos 67 and 68 of 1975. J.Ramamurthy, K. Ram Kumar, N. Sridhar and Ms. Anjani for the Appellant. 891 A.T.M.   Sampath,   Ms.  Pushpa  Rajan,   S.   Balakrishnan, Srinivasan and Ms. Revathy Raghavan for the Respondents. The Judgment of the Court was delivered by KASLIWAL,  J.  These appeals by grant of special  leave  are directed against the judgment of the Madras High Court dated 24.1.1979. Abdul   Salam  and  his  mother  Razia  Begum   sold   their agricultural   lands   measuring  3  acres  and   25   acres respectively  by executing two sale deeds Exhibits  A.2  and A.1  dated 17.4.1962 in favour of Satyanarayana Rao and  his father  Mahadeva Rao.  The consideration of  the  respective sale  deeds  was Rs.10,000 and Rs.75,000. On the  same  day, both the vendees took Rs.500 back and executed two  separate agreements  in  favour  of  the  respective  vendors   under Exhibits  A.3  and A.4 giving a right of repurchase  to  the vendors at any time after 17.4.1969 but before 16.4.1972. Thereafter, Razia Begum and Abdul Salam executed  agreements of sale in favour of the appellant T.M. Balakrishna Mudaliar on 4.1.1963, for a consideration of Rs.1,30,000 in all.  The appellant also paid an amount of Rs.30,000 from time to time till  April 1963 to Razia Begum and Abdul Salam towards  the said  agreements.  For the balance of Rs.1,00,000 which  was to  be  apportioned  between Razia Begum  and  Abdul  Salam, Exhibits  A.10  dated  15.4.1963 and  A.11  dated  15.3.1963 registered deeds of agreement of sale were executed by Razia Begum  and  Abdul  Salam  respectively  for  Rs.87,500   and Rs.12,500. The appellant paid further sums of Rs.4,000 under Exhibit A.10 to Razia Begum and Rs.1,000 under Exhibit  A.11 to Abdul Salam and Exhibits A.3 And A.4 were handed over  to the  appellant.  Mahadeva Rao died leaving behind his  widow Pushpavathi Ammal and Satyanarayana Rao his son as his legal representatives.  In view of the fact that Satyanarayana Rao and  his  mother Pushpavathi Ammal refused  to  execute  the reconveyance  deed, the appellant T.M  Balakrishna  Mudaliar filed  two suits for specific performance of the  agreements of reconveyance, delivery of possession and mesne profits in the  Court of Subordinate Judge, Tirupattur.  O.S. No.67  of 1969 was filed against Satyanarayana Rao, Pushpavathi  Ammal and  Abdul  Salam and O.S.No.73 of 1969 was-  filed  against Satyanarayana  Rao, Pushpavathi Ammal and Razia  Begum.   In O.S.  No.67 of 1969, the appellant deposited the  amount  of Rs.9,900  in the Court for payment to Satyanarayana Rao  and Pushpavathi  Ammal and Rs. 1600 for payment to Abdul  Salam. In O.S. No.73 of 1969, the appellant deposited 892 Rs.74,500  for payment to Satyanarayana Rao and  Pushpavathi Ammal and Rs.9,000 to Razia Begum. Both  the  above suits were decreed  ex-parte  on  7.1.1974. Razia Begum and Abdul Salam did not file any application for

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setting  aside the ex-parte decree and as such  the  decrees passed  against them became final.  On an application  filed by  Satyanarayana Rao and Pushpavathi Ammal, the  ex-  parte decrees  passed  against them were set aside and  they  were allowed  to  contest  the  Suit.   The  trial  court   after recording   the   evidence   decreed   the   suit    against Satyanarayana Rao and Pushpavathi Ammal also.  Satyanarayana Rao and Pushpavathi Ammal aggrieved against the judgment  of the  trial court filed appeal Nos.67 and 68 of 1975  in  the High Court.  The High Court by its judgment dated  24.1.1979 allowed the appeals and set aside the judgments of the trial court  and  dismissed  both  the  suits.   T.M.  Balakrishna Mudaliar,  the plaintiff aggrieved against the judgments  of the High Court has filed the aforesaid two appeals. The facts are almost admitted and there is no controversy as regards the execution of Exhibits A.4 and A.3  the deeds  of reconveyance by Satyanarayana Rao and Mahadeva Rao in favour of  Razia  Begum and Abdul Salam respectively  and  Exhibits A.10  and  A.11, registered deeds of agreement  of  sale  by Razia Begum and Abdul Salam in favour of the appellant.  The High  Court however, took the view that under the terms  and conditions set out in Exhibit A.10 and A.11 Razia Begum  and Abdul  Salam had not assigned the rights of reconveyance  of the  properties which ’they had got under Exhibits  A.4  and A.3.  According  to the High Court, Exhibits A.10  and  A.11 contemplated the performance of agreements of sale within  a period  of two years namely, 17.4.1969 to  16.4.1971,  while under the terms and conditions of Exhibits A.3 and A.4  such period  for reconveyance in favour of Abdul Salam and  Razia Begum  was  three years i.e. from  17.4.1969  to  16.4.1972. According to the High Court this difference relating to  the period  was important from the point of view of  considering the question whether the plaintiff could stand in the  shoes of  Razia  Begum and Abdul Salam to  enforce  the  agreement entered into between Razia Begum and Abdul Salam on the  one hand  and Satyanarayana Rao and Mahadeva Rao on  the  other. The  High  Court  took  the view that  on  account  of  such curtailment  of the period in Exhibits A.10 and A.11 it  was reasonable  to infer that if the plaintiff did  not  enforce his rights under Exhibits A.10 and A.11 within the period of two years me- 893 tioned  therein, still Razia Begum and Abdul Salam in  their own  right  would be in a position to  enforce  their  right under Exhibits A.3 and A.4 because there was still one  more year available to them to enforce the obligations undertaken by Satyanarayana Rao and Mahadeva Rao under Exhibits A.3 and A.4.  The  High Court further took the view  that  from  the terms of the documents Exhibits A.10 and A.11, it was  clear that  no privity was intended between the plaintiff  on  the one hand and Satyanarayana Rao and Mahadeva Rao directly and it  was  only  Razia Begum and Abdul Salam  who  could  have enforced  the  terms of the contract of  reconveyance  under Exhibits A.4 and A.3. The High Court also took the view that the   plaintiff   did  not  fall   within   the   expression ’representative  in interest’ as contemplated under  Section 15 clause (b) of the Specific Relief Act, 1963  (hereinafter referred  to as ’the Act’) and as such was not  entitled  to bring a suit for specific performance of the contract on the basis of the deeds of reconveyance Exhibits A.3 and A.4.  It was also held that having regard to the language of Exhibits A.10  and  A.11, no question of assignment of any  right  in favour of the plaintiff can arise. We  have  heard  learned counsel for the  parties  and  have thoroughly  perused  the record as well as the  contents  of

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Exhibits A.3, A.4 and A.10 and A.11 on which the entire case hinges.   Exhibits  A.3  and A.4 are  agreements  of  resale executed on 17.4.1962 by Mahadeva Rao and Satyanarayana  Rao in favour of Abdul Salam and Razia Begum respectively.  Both the documents contained the terms of the resale at any  time after 7 years, but within 10 years of the date of  execution of  the  documents.  It was clearly  stipulated  that  after 17.4.1969   but   before   17.4.1972,   Mahadeva   Rao   and Satyanarayana Rao shall sign the sale deed on receiving  the sum  of Rs.74,500 in favour of Razia Begum and on  receiving Rs.9,900  in  favour of Abdul Salam.  Both  these  documents Exhibits A.3 and A.4 do not contain any condition that  such right  was  personal and was in favour of  Abdul  Salam  and Razia  Begum  and  such right could not be  exercised  by  a stranger.   The documents also do not contain any  condition that  such  right could be exercised by the  heirs  of  such persons or any other named persons and that such right could not be assigned by Abdul Salam and Razia Begum in favour  of any  other person.  The High Court was wrong in  taking  the view  that  the  plaintiff Balakrishna Mudaliar  was  not  a representative  in interest of Abdul Salam and  Razia  Begum even  after  such  right being assigned  in  his  favour  by agreements  Exhibits A.10 and A.11. Exhibits A.10 is a  sale agreement for Rs.87,500 executed on 15.4.1963 by Razia Begum 894 in  favour  of the plaintiff Balakrishna Mudaliar.   It  has been  clearly stated in the aforesaid deed that in order  to raise  funds for expenses required for the family  and  also for  repayment of the amount of Rs.75,000 and  recover  back the  properties from M/s Mahadeva Rao and Satyanarayana  Rao and  that  Razia Begum (party No.1) had a right to  have  it reconveyed  as  per  reconveyance agreement  she  agreed  to assign  such  right in favour of Balakrishna  Mudaliar  (the second  party).   It further provided that Razia  Begum  had received   Rs.4,000  and  out  of  the  balance  amount   of Rs.83,500, an amount of Rs.74,500 shall be paid to  Mahadeva Rao and Satyanarayana Rao and the balance amount of Rs.9,000 shall be paid to Razia Begum.  It was also mentioned that in case  Mahadeva  Rao and Satyanarayana Rao  who  had  already executed  the agreement of resale refuse to receive the  sum of  Rs.74,500 as per the said resale agreement, Razia  Begum at  her own expense shall get the sale deed executed by  the said  Mahadeva Rao and Satyanarayana Rao in her  favour  and then shall execute the sale deed in favour of the plaintiff. At  the time of executing Exhibit A.10, a copy of  the  sale deed  made in favour of Mahadeva Rao and  Satyanarayana  Rao and  the agreement for resale executed by them in favour  of Razia Begum was also handed over to the plaintiff.   Exhibit A.11  has  been  executed by Abdul Salam in  favour  of  the plaintiff and contains identical terms and conditions as  in Exhibit  A.10  except  the difference of  amount.   Thus,  a combined  reading of the documents Exhibits A.3,  A.4,  A.10 and A.11, there remains no manner of doubt that Razia  Begum and Abdul Salam had made an agreement to sell the properties in  favour  of the plaintiff and had also given a  right  to make  the  payment  of  such  amount  to  Mahadeva  Rao  and Satyanarayana  Rao which they were entitled under the  terms and  conditions of Exhibits A.3 and A.4, the  agreements  of resale  made  in  favour  of Abdul  Salam  and  Razia  Begum respectively.   The plaintiff had filed a suit for  specific performance of the agreement for sale impleading Razia Begum and Mahadeva Rao and Satyanarayana Rao as defendants in  the one case and Abdul Salam and Mahadeva Rao and  Satyanarayana Rao  in  another care and had also deposited the  amount  of consideration  in  Court  which  clearly  proved  that   the

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plaintiff  was always ready and willing to perform his  part of  the  contract.   In our view, there  was  no  ground  or justification for the High Court to dismiss the suits  filed by the plaintiff. The High Court was wrong in taking the view that it was only Razia  Begum  and  Abdul  Salam who  were  entitled  to  get reconveyance from Mahadeva Rao and Satyanarayana Rao and the plaintiff was not entitled 895 to  enforce  such right by a suit for  specific  performance against  Mahadev Rao and Satyanarayana Rao.  The High  Court further erred in holding that the restriction of the  period during  which  the plaintiff could have got the  sale  deeds executed  in his favour was two years while Razia Begum  and Abdul Salam under Exhibits A.3 and A.4 could have  exercised such  right  within  a  period  of  three  years  and   such difference in the period deprived the plaintiff of his right to   enforce   the  agreement   of   specific   performance. Admittedly  the  plaintiff  was  exercising  the  right   of specific  performance  of  agreement  of  sale  within   the stipulated  period of two years and we are unable to  accept the  reasoning  of the High Court as to how  the  period  of three years granted in favour of Razia Begum and Abdul Salam in  any  manner  affected  of took away  the  right  of  the plaintiff to bring a suit for specific performance. It  may also be noted that an ex-parte decree  for  specific performance of sale had become final against Razia Begum and Abdul Salam and so far as Mahadeva Rao and Satyanarayana Rao are  concerned,  they  were  bound  to  make  a  resale   or reconveyance  of the property in favour of Abdul  Salam  and Razia Begum as well as their assignee under Exhibits A.3 and A.4.  So  far  as Mahadeva Rao  and  Satyanarayana  Rao  are concerned, they have not pleaded that they had not  executed Exhibit  A.3 and Exhibit A.4 or that Razia Begum  and  Abdul Salam  had lost the right of repurchase or  reconveyance  of the property in question in their favour. The  Privy Council in Sakalaguna v. Munnuswami, 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.  Beaumount C.J. in Vishweshwar  v. Durgappa,  AIR 1946 Bombay 339 held that the both under  the common  law as well as under Section 23 (b) of the  Specific Relief Act, 1877, an 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  v.  Karuppuswami AIR 1965 Madras  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               896               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.’ In  our  view,  the above statement of  law  appears  to  be correct.   We have already held above that under  the  terms and conditions laid down in Exhibits A.3 and A.4, the  right

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of  repurchase was not given as personal to Razia Begum  and Abdul Salam and they were entitled to assign such right  and the plaintiff having got such right under Exhibits A.10  and A.11 was entitled to enforce such contract by filing a  suit for specific performance.  The plaintiff in the present case also falls within the meaning of representative in  interest as  contemplated under Clause (b) of Section 15 of the  Act. On such assignment, the plaintiff-appellant acquired a valid titled to claim specific performance. In  the  result, we allow these appeals with costs  and  set aside  the  Judgment  of  the High  Court  and  restore  and Judgments and decrees passed by the trial court. V.P.R.                       Appeal allowed. 897