Full Judgment Text
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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
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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]
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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.
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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
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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