1. In 1903 Gidd Hegde being indebted to Vaikuntha, and Vaikuntha having obtained a decree which Gidd Hegde was unable to satisfy, Gidd Hegde sold the land in dispute to the decree-holder on condition that after the lapse of ten years Gidd Hegde or his descendants should have the right to re-purchase it within two years for the same price for which the land was sold. After the death of Gidd Hegde his son appears to have been his only descendant and on his death his mother took as heir. She then proceeded to sell the right, reserved to Gidd Hegde and his descendants in the sale-deed of 1903, to one Manj Isra, who in turn seems to have sold half to the plaintiff' No. 1 and the other half to the plaintiff No. 2.
2. The question for our determination is whether on the terms of the sale-deed of 1903 and in the light of the facts and circumstances then existing, the intention of the parties was that the right reserved was to be a personal right to Gidd Hegde and his descendants or a right which he might assign to any other person. The assignability of interests in land arising ,out of contracts has been so long recognised in England that no difficulty ever appears to be felt now in reconciling it with the fundamental doctrine of all contracts, namely, privity between the contracting parties. This difficulty becomes more apparent and often has been felt in England where contracts affecting moveable property, such as the supply of chalk in Tolhurst v. Associated Portland Cement Manufacturers (1903) A.C. 414 or the supply of eggs in Kemp v. Baerselman (1906) 2 K.B. 604, have been assigned. But running through the whole of this law, whether it relates to immoveable or to moveable property, where the rights originate in contract, we think it safe to say that the principle is that Courts must decide whether it was the intention of the promisor to make the contract personal to the promisee. In India even the general principle now so well settled in England is much complicated by the provisions of the Transfer of Property Act. That is the Statute which governs Courts in this country and it becomes extremely difficult under its provisions to say that a right, if it be a right, of the kind in suit here can be transferred at all. It falls outside the definition of choses in action, for these are. confined exclusively to moveables. Nor can it very easily be brought within the terms of Section 6, for correctly analysed it amounts to no more than a contract on the part of Vaikuntha to sell the land to Gidd Hegde and his descendants after the lapse of a certain time at a certain price, and such mere contract or agreement for the sale of land creates no interest in the land as expressly declared in Section 54. It is difficult, therefore, to say what form of property could be transferred in a case of this sort within the meaning and language of the Transfer of Property Act. Waiving such difficulties, however, and confining ourselves to what we conceive the true ground of all cases of this kind, we are very clear, although in this we differ from the lower Courts, that the intention of the parties was that Gidd Hegde and his descendants and they alone should be given the privilege of repurchasing this land after the lapse of ten years and within the limited period of twelve years at the same price at which it was originally sold.
3. We need not pause upon the construction of the term 'descendants' favoured by the Courts below. It may be that for the purposes of enforcing the intended rights under this sale-deed of 1903 a mother within the family might by stretch of language have been included in the term 'descendants.' That is, however, a point of minor importance.
4. What we find is that Gidd Hegde under the severe pressure of adverse circumstances was compelled to part with his family land. At that time he had no means of saving it from the decree-holder and the terms of the document indicate that he had very little hopes of being in a position to buy it back even after the lapse of ten years. The sentiment of the agricultural classes in this country towards their land is well-known to every Judge of experience; and we can well understand that the creditor may have so far relented as to have given his debtor this locus panitentive after the lapse of ten years and so enable him to get back his family land. Founding the motive of the whole contract in this sentiment, it would be apparent that the vendee would have had no like inducement to allow any stranger to buy this land from him after the lapse of ten years at the price he had paid for it. There may have been a very good and sufficient reason why he should have made this concession to the original owner of the land and his descendants, meaning by that term his family, but we can see no reason whatever why the vendee should have bound himself in like manner to sell to any one who had no previous connection with or interest in the land. That being my view of the true nature of the sale-deed of 1903 and the intention of the parties when the reservation clause was made, it follows that assignees outside the family could not enforce the contract specifically.
5. This would then be a case of personal quality mentioned in Section 23 of the Specific Relief Act. Personal quality need not necessarily be restricted to particular skill or learning but may include anything peculiar to a man or his descendants which would entitle them to especial favour at the hands of other contracting parties. Such I believe to have been the case here.
6. It has been urged that the intention of the parties was found upon by the lower appellate Court, and what was or was not the intention of the parties to a document of this kind is a question of fact, the answer to which is binding upon us. I do not, however, think that this is so in a case of this very peculiar kind. In the first place there is the distinct question of construction, upon which the Courts have to pronounce- and this is a case of real construction-before the plaintiffs could have any show or colour of right at all. I am not prepared myself to say that the lower Court's construction was correct, but even if it were, in the result we have to deal with a question which is quite as much dependent upon the construction of the deed as upon any other materials; and where that is so, it seems to me that we in second appeal have as good a right as the lower appellate Court to put our own construction upon the document as a whole in order to arrive at the intention of the parties thereto.
7. I would, therefore, allow this appeal, reverse the decree of the Courts below and dismiss the plaintiff's' suit with all costs.
1. I need not restate the facts which my learned brother has set out. I only wish to comment on three points. The first is this : Seeing that the conclusion arrived at by the lower Courts is to so considerable an extent based on what is undeniably the legal construction of a document, it is open to us in second appeal to arrive at our own conclusion.
2. The second point is this : that the point before us is to determine the intention of the parties and that must be by us determined, mainly on our interpretation of the document. Taking the document I feel in my own mind absolutely no doubt that the intention of the parties did not extend to a possibility of assigning the right of purchasing the property to any one outside the family of the original vendor. In England a right of this kind would be assignable unless it were shown not to be so. But in India I think the sentiment of the people as regards ownership of land is altogether antagonistic to the English idea of assignability. In the first instance one would assume that where there was an agreement to sell back family land to a member of the family, that agreement was intended to subsist only for the benefit of members of that family. In this particular document I think the recitals and terms used suggest that the parties were dominated by the common sentiment and that there was no intention that the right to buy back should pass to any one outside the family.
3. The third point is this : Assuming that the right to buy back this land had become vested in the lady, who was the mother of the original seller, she parted with her right to a third person. This third person divided or purported to divide the right into two portions, and he sold each of these portions to a different person. It seems to me very difficult to conclude that by assigning or selling a portion of this right he was in fact assigning or selling anything whatever. The purchaser of half the right seems to me to have bought nothing. In this particular suit we have the two purchasers of the halves of the right joining together as plaintiffs. Whether by so doing they could overcome the difficulty which I have suggested is a point which arises in the case, but it is a point which we need not determine, because the case is decided against the plaintiffs on other grounds.
4. I agree that the suit should be dismissed as suggested by my learned brother.