Judgement

Appeal (No. 53 of 1926) from a decree of the High Court (March 5, 1925) reversing a decree of the Subordinate Judge of Chingleput.

The respondent sued the appellants in 1920 for specific performance of an agreement entered into by their father in 1891 to recover certain purchased property in the thirtieth year from the date of purchase the respondent claimed as assignee of the benefit of the agreement.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge was of opinion that the transaction of 1891 was an absolute sale, not a conditional sale. He held that the counterpart document did not constitute a complete contract, but only a standing offer to the vendor, incapable of assignment until accepted by a tender of the price. He therefore dismissed the suit.

On appeal the decision was reversed and a decree for specific performance made. The learned judges (Spencer and Ramesam JJ.) held that even if the transaction was not a mortgage by conditional sale, which it was not necessary to decide, a right to a conveyance arose, as there was a complete and assignable contract to reconvey.

1928. March 15, 16. Dunne K.C., Narasimham and Subba Row for the appellants.

De Gruyther K.C. and Abdul Majid for the respondent.

April 24. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal by the defendants in the suit against a decree dated March 5, 1925, of the High Court of Judicature at Madras, which reversed a decree dated June 26, 1922, of the Subordinate Judge of Chingleput.

The suit was brought by the plaintiff in order to obtain a direction by the Court that the defendants should execute a conveyance of the property in suit in favour of the plaintiff and other consequent relief’s.

The learned Subordinate Judge dismissed the suit with costs ; the High Court allowed the plaintiffs appeal with costs and ordered the defendants to execute the conveyance in favour of the plaintiff as prayed, and gave other necessary directions in respect thereof.

The material facts of this case are as follows The defendants are the sons of one Venkatapathi Naidu. By a deed dated January 27, 1891, Venkata Subrahmanya Ayyar, on behalf of himself and as guardian of his minor son Krishnasami Ayyar, sold the village of Siyatti to the above mentioned Venkatapathi for the consideration of Rs. 10,000.

On the same day the parties executed what was called a " counterpart document," by which it was provided that Venkatapathi should reconvey the said village to Venkata Subrahmanya after a period of thirty years from that date, i.e., in the Ani cultivation season of the thirtieth year, in case Venkata Subrahmanya wished to have the village again, and upon his paying to Venkatapathi the sum of Rs. 10,000.

The learned judges of the High Court treated the " counterpart document" as having been executed by Venkatapathi in favour of Venkata Subrahmanya and his son Krishnasami, though the latters name is not mentioned in the " counterpart document." Their Lordships are of opinion that this was a right conclusion, because Venkata Subrahmanya and Krishnasami were members of a joint Hindu family, and the deed of sale was executed by Venkata Subrahmanya on behalf of his minor son as well as on his own behalf, and the "counterpart document" was obviously intended to give the right to call for a reconveyance of the property to the persons who were parties to the deed of sale.

In 1897 Venkata Subrahmanya was adjudicated insolvent and in 1899 he died, leaving Krishnasami, his only son, surviving him.

By a deed dated May 12, 1910, Krishnasami sold the village of Siyatti to the plaintiff for the consideration of Rs. 19,200. It was agreed on behalf of the appellant that this deed contained not only a conveyance of the village but also an assignment of Krishnasamis right to the benefit of the “counterpart document."

By a deed dated February 22, 1916, the official assignee of Madras, and " as such the assignee of the