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Allahbad High Court
M.P.MEHROTRA
Sheomurat Ram - Appellant
Versus
Savitri - Respondent
Decided On : 12/22/1976
SPECIFIC PERFORMANCE - AGREEMENT TO RECONVEY - LEGAL REPRESENTATIVES - FRAME OF SUIT - TRANSFER OF PROPERTY ACT, S. 54 - SPECIFIC RELIEF ACT, S. 15 (B) - CONTRACT ACT, SS. 37, 40, 50, 62 - REGISTRATION ACT, S. 17 - INDIAN LIMITATION ACT, ART. 106 - Where a vendor executes a sale deed in favour of the vendee and on the same day the vendee executes a deed of agreement in favour of the vendor promising to reconvey the said property to the latter if the sum of Rs. 4,000/- is paid within five years, the right which the vendor is entitled to on the basis of the agreement to reconvey the property is not merely a personal right but is heritable and transferable. The legal representatives of the deceased vendor can sue for the specific performance of the agreement by the vendee. One or more of the several legal representatives of the deceased vendor can sue the vendee for the specific performance of the agreement to reconvey by making the remaining legal representatives as parties defendants to the suit. The suit cannot be held to be bad on the ground that all the legal representatives of the deceased vendor did not join as co-plaintiffs. It is not necessary that all the legal representatives must sue as plaintiffs. The alleged agreement set up by the plaintiff entitling her to file the suit in her sole name, impleading the other legal representatives as defendants to the action, does not amount to a relinquishment of right in immoveable property valued at more than Rs. 100/- and, therefore, does not require a registered document. The agreement to reconvey the property does not create any interest in the immoveable property itself and, therefore, S. 17 of the Indian Registration Act or the second para of S. 54 of the Transfer of Property Act will have no application to the agreement.
Fact of the Case:
One Madho Halwai executed a sale deed in favour of Sheomurat Ram, the defendant-appellant, on 26th August, 1958 for Rs. 4,000/-. On the same day Sheomurat Ram executed a deed of agreement in favour of Madho Halwai promising to reconvey the said property to the latter if the sum of Rs. 4,000/- was paid within five years. The vendor, Madho Halwai, died on 27th November, 1958. His son, Purshottam, had predeceased him leaving sons and one daughter, Smt. Savitri Devi, Smt. Savitri Devi instituted the suit from which the instant appeal has arisen against Sheomurat Ram who was impleaded as defendant no. 1. She impleaded her brothers and nephews and nieces as pro forma defendants alleging that they were not in a position to deposit the sum of Rs. 4,000/- and, therefore, they had agreed that she might deposit the amount and get back the property from the vendee in accordance with the aforesaid deed of agreement which was executed on the same day as the sale deed. She offered to deposit the sum and prayed that the defendant no. 1, Sheomurat Ram, be asked to execute a sale deed in her favour alone or in her favour and in favour of any pro forma defendants who might desire the sale deed to be executed in their favour. Sheomurat Ram, defendant no. 1 alone contested the suit. The other defendants did not contest the same.
Finding of the Court:
The trial court decreed the suit with costs against the contesting defendant no. 1 who was directed to execute a deed of reconveyance on payment of Rs. 4,000/- by the plaintiff. One months time was given for this purpose failing which it was ordered that the plaintiff could get the sale deed executed through the court. Sheomurat Ram appealed to the lower appellate court and the appeal was partly allowed. The decree of the trial court was modified to the extent that the costs throughout were made easy. Sheomurat Ram has now come in the instant second appeal and in support thereof I have heard his learned counsel, Shri Shambhu Prasad. In opposition, Shri Siddheswari Prasad had made his submissions.
Issues: 1. Whether the right which the vendor is entitled to on the basis of the agreement to reconvey the property is merely a personal right or is heritable and transferable? 2. Whether one or more of the several legal representatives of the deceased vendor can sue the vendee for the specific performance of the agreement to reconvey by making the remaining legal representatives as parties defendants to the suit? 3. Whether the alleged agreement set up by the plaintiff entitling her to file the suit in her sole name, impleading the other legal representatives as defendants to the action, amounts to a relinquishment of right in immoveable property valued at more than Rs. 100/- and, therefore, requires a registered document? 4. Whether the agreement to reconvey the property creates any interest in the immoveable property itself and, therefore, S. 17 of the Indian Registration Act or the second para of S. 54 of the Transfer of Property Act will have application to the agreement?
Ratio Decidendi: 1. The right which the vendor is entitled to on the basis of the agreement to reconvey the property is not merely a personal right but is heritable and transferable. The legal representatives of the deceased vendor can sue for the specific performance of the agreement by the vendee. 2. One or more of the several legal representatives of the deceased vendor can sue the vendee for the specific performance of the agreement to reconvey by making the remaining legal representatives as parties defendants to the suit. The suit cannot be held to be bad on the ground that all the legal representatives of the deceased vendor did not join as co-plaintiffs. It is not necessary that all the legal representatives must sue as plaintiffs. 3. The alleged agreement set up by the plaintiff entitling her to file the suit in her sole name, impleading the other legal representatives as defendants to the action, does not amount to a relinquishment of right in immoveable property valued at more than Rs. 100/- and, therefore, does not require a registered document. 4. The agreement to reconvey the property does not create any interest in the immoveable property itself and, therefore, S. 17 of the Indian Registration Act or the second para of S. 54 of the Transfer of Property Act will have no application to the agreement.
Final Decision: The appeal fails and is dismissed with costs.
One Madho Halwai executed a sale deed in favour of Sheomurat Ram, the defendant-appellant, on 26th August, 1958 for Rs. 4,000/-. On the same day Sheomurat Ram executed a deed of agreement in favour of Madho Halwai promising to reconvey the said property to the latter if the sum of Rs. 4,000/- was paid within five years. The vendor, Madho Halwai, died on 27th November, 1958. His son, Purshottam, had predeceased him leaving sons and one daughter, Smt. Savitri Devi, Smt. Savitri Devi instituted the suit from which the instant appeal has arisen against Sheomurat Ram who was impleaded as defendant no. 1. She impleaded her brothers and nephews and nieces as pro forma defendants alleging that they were not in a position to deposit the sum of Rs. 4,000/- and, therefore, they had agreed that she might deposit the amount and get back the property from the vendee in accordance with the aforesaid deed of agreement which was executed on the same day as the sale deed. She offered to deposit the sum and prayed that the defendant no. 1, Sheomurat Ram, be asked to execute a sale deed in her favour alone or in her favour and in favour of any pro forma defendants who might desire the sale deed to be executed in their favour. Sheomurat Ram, defendant no. 1 alone contested the suit. The other defendants did not contest the same. The contesting defendants pleas were that on the death of Madho Halwai the cause of action based on the agreement to reconvey the property came to an end as it was in the nature of a personal right in his favour. In other words, it was contended that the legal representatives of Madho Halwai could not claim any right on the basis of the aforesaid agreement to reconvey the property in his favour. It was next pleaded that the promise to reconvey the property was without consideration and, therefore, could not be enforced. The further plea was that the plaintiff alone could not get back the property which belonged to her and the defendants 2 to 10. It was also claimed that the contesting defendant had spent a sum of Rs. 2,000/- on the repairs of the property and that he had been paying house tax in respect of the same. The contesting defendant claimed to be entitled to the said amounts also. Certain other pleas were also taken but it is not necessary to notice the same as they were not canvassed in the instant appeal.
2. The trial court framed the necessary issues and decreed the suit with costs against the contesting defendant no. 1 who was directed to execute a deed of reconveyance on payment of Rs. 4,000/- by the plaintiff. One months time was given for this purpose failing which it was ordered that the plaintiff could get the sale deed executed through the court. Sheomurat Ram appealed to the lower appellate court and the appeal was partly allowed. The decree of the trial court was modified to the extent that the costs throughout were made easy. Sheomurat Ram has now come in the instant second appeal and in support thereof I have heard his learned counsel, Shri Shambhu Prasad. In opposition, Shri Siddheswari Prasad had made his submissions. Counsel for the appellant relied on S.23 (b) of the old Specific Relief Act of which the counter-part is S.15 (b) of the new Specific Relief Act. He also placed reliance on (1) Smt. Katip Bibi v. Fakir Chandra, (AIR 1960 Cal 187), (2) Mohd. Yamin v. Abdul Majid (AIR 1962 All 476) and (3) Amina Bibi v. Abdul Kader Saheb ( (1902) ILR 25 Mad 26). It was next contended that the courts below were wrong in holding that on the basis of the alleged agreement amongst the legal representatives of the deceased, Madho Halwai, the plaintiff alone was entitled to sue for the reconveyance of the property. It was contended that the alleged agreement amounted to a relinquishment of rights in immoveable property valued at more than Rs. 100/- and that could be brought about only by a
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