IMPORTANT POINT
Agreement to Sell – Condition of right to repurchase in sale deed will not be personal to vendor unless terms in documents specifically state so – Such a right can always be assigned and contract containing such condition shall be enforceable.

JUDGMENT :

Rajesh Bindal, J.

1. The appellant herein has challenged the order dated September 26, 2013 passed by the High Court of Judicature at Patna in Second Appeal No. 123 of 2000.

2. The facts of the case available on record are being noticed here. Kaleshwar Prasad Singh was inducted as a tenant in the property in question by late Kishori Lal Sahu who was the exclusive owner thereof. He along with his son executed a conditional sale deed dated 5.8.1977 in favour of Indira Devi d/o Kaleshwar Prasad Singh. It was mentioned in the sale deed that vendors were in dire need of money, hence, with the consent of family members, conditional sale deed was being executed in favour of the vendee for a total sale consideration of Rs.5000/-. The condition in sale deed was that in case the vendors return the full consideration amount to the vendee by July, 1984, the vendee would return the property by means of a registered sale deed at the cost of the vendors. In case, the vendors fail to pay the consideration money within the stipulated time, the vendee will become exclusive owner of the property. Till then the vendee would not deal with the property in any manner whatsoever.

3. Late Kishori Lal Sahu executed a registered gift deed dated 14.02.1983 in favour of his daughter-in-law, Veena Gupta w/o Gopal Prasad. The description of the property was detailed out in the Gift Deed, wherein it was stated that the executant was old and the beneficiary was taking care of him, hence the properties are being gifted to her. Number of properties were gifted. It was mentioned therein that the property as mentioned at column no. 5 therein was transferred to Indira Devi by way of registered sale deed dated 5.8.1977, which can be purchased back by Veena Gupta from Indira Devi.

4. The vendors were ready and willing to return Rs.5000/- to the vendee to get the sale deed registered back in their name but the vendee was not agreeing to the same. The civil suit was filed by the respondent no.1 along with Kishori Lal Sahu (now deceased) in 1983. The prayer in the suit was for a direction to the appellant to accept Rs.5000/- as consideration money and execute sale deed in favour of respondent no.1 in respect of the house as mentioned in the suit. On failure, decree be passed directing appellant to register the sale deed in favour of the respondent no.1, the first plaintiff and as a consequence, the plaintiffs be put in possession of the property in question. In the alternative, the prayer was that there is a relationship of landlord and tenant between Kishori Lal Sahu (non deceased), the second plaintiff and Kaleshwar Prasad Singh, the first defendant. A decree of eviction be passed in favour of the plaintiffs on the ground of personal necessity and non payment of rent and the possession be got delivered. The Trial Court vide judgment dated 27.9.1986 dismissed the suit. The judgment and decree of the Trial Court was upheld by the lower appellate court vide judgment and order dated 27.1.2000. In second appeal filed by the respondents, the judgments of the courts below were reversed by the High Court vide judgment dated 26.09.2013. The High Court framed the following substantial questions of law:

“(i) Whether the courts below committed error in dismissing the suit of the plaintiff on wrong approach and on consideration of an issue which was not material for the purpose of adjudication of the suit?

(ii) Whether the courts below committed error in not considering the main issues involved in the suit regarding character and construction in respect of the deed impugned?

(iii) Whether the courts below committed error in not considering the issue of merger of tenancy to the ownership as is relevant in the deed of sale?”

ARGUMENTS OF THE APPELLANTS

5. The argument raised by the learned counsel for the appellant was that late Kishori Lal Sahu executed the conditional sale deed along with his son in favour Indira Devi on 5.8.1977. He had no right to assign his right to repur