IMPORTANT POINT
Normally any interest in a contract can be assigned to any representative-in-interest who also can enforce the specific performance of the contract against the contracting party but if the terms 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.

Headnote:Specific Relief Act, 1963-Section 15(b) [Specific Relief Act, 1877 - Section 23(b)] - Specific performance - Agreement of reconveyance of suit property-Contractual scheme of priorities conferred on specified types of mentioned therein-Assignment of right of reconveyance -House sold to defendant 1 - Vendee agreeing to reconvey suit property within three years on return of same consideration to original vendor-Agreement recites that if original vendor died within that period then only son of original vendor, and his children would be competent to get back property-Other heirs of original vendor conferred right to enforce claim for repurchasing in case her son and his children did not remain alive within period of three years-No express prohibition restricting right of named beneficiaries to assign their right of repurchase to third party-Whether original plaintiff, a stranger could be legally assigned the right to repurchase granted under the Agreement executed by defendant 1 in favour of original vendor?-(Yes)-Assignee could sue for specific performance-This was not a case of any right of statutory pre-emption-It reflected a scheme of priorities for getting property reconveyed.
       Held : 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 terms 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. (Para 11)
       Further held, 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 anyone 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. (Para 11)
       Consequently held that this is not a case of any right of statutory pre-emption but it 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 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. (Para 10)
       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 of 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 aforesaid period of three years. She had, therefore, no occasion to enforce her right flowing from the document in her 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. (Para 9)
       Specific Performance-Residential property-Sale of house -Agreement of reconveyance of suit property-Cost of repair of house-Independent obligation-Whoever is purchaser of property on basis of enforcement of right of repurchase will have to bear that burden.
       Held : 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 an 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 facts 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. (Para 12)

JUDGMENT

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.

2. 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 a 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. Under the Agreement of reconveyance her son Irfan Hasan Khan became entitled to enforce the right to repurchase. Said Irfan Hasan Khan assigned 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 pendente lite damages from defendant Nos. 1 and 2 for use and occupation at the rate of Rs. 50/- per month.

3. 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

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1997 Supreme(SC) 1068

Cases Referred (5)