(1) The appeal is by the plaintiff in a suit for specific performance, in which it is fairly clear that the trial court came to the correct conclusion in decreeing the suit as prayed for. The matter went up in appeal to the learned Subordinate Judge who allowed the appeal and reversed the decree, but whose ground therefor are extremely difficult to follow. Briefly stated, the facts are these. This suit property originally belonged to one Venkataswami Naidu, who is not a party to this suit, who sold it for Rs. 500 on 14-5-1951 to the defendant (respondent) on the same day the defendant executed a registered resale agreement Ex. A. 1, agreeing to reconvey the property for the same price of Rs. 500 within a period of six years therefrom to Venkataswami Naidu or his heirs. Venkataswami Naidu assigned this agreement to the plaintiff (appellant) on 25-1-1956 for a consideration of Rs. 500. As the learned Subordinate Judge himself points out, upon the authority of Narasinggerji Gyangerji v. Papuganti Parthasarthi, 1921 MWN 519.
'a right to reconveyance of land is a property, and not a mere right to sue; and can be attached and sold;.'
Actually, we have the authority of the Judicial Committee itself in Sakalaguna Naidu v. Chinna Munusami Naiyakar, ILR 51 Mad 533: AIR 1928 PC 174 for the view that such a document executed on the date of sale itself by the purchaser undertaking to reconvey the property to the vendor after a period, constitutes a con tract enforceable by any assignee of the vendor. The plaintiff, by virtue of the assignment in her favour, demanded a reconveyance from the defendant, and the defendant received a notice on 1-3-1956, but did not comply with the demand. As I stated earlier, the learned District Munsif decreed the suit, and it is the learned Subordinate Judge in appeal, who has held that the agreement, to reconvey could not be validly assigned to plaintiff, and that plaintiff could no enforce her rights.
(2) The learned Subordinate Judge seems to proceed, as far as I can gather from his judgment, which is not particularly clear, that (1) the agreement could not be enforced by plain tiff because of the language used in the document of reconveyance restricting the right to Venkataswami Naidu and his heirs and (2) because there was a lease back of the property to Venkataswami Naidu by the vendee, and Venkataswami Naidu fell into arrears of rent, for which she defendant had to file a small cause suit later, and to obtain a decree. The argument here appears to be two fold first of all, this is claimed to be a fraud prepetrated by Venkataswami Naidu, because he knew that he was due to pay these debts when he assigned the contract of reconveyance. The learned Judge observes 'So the plaintiff who claims under a fraudulent document which is void, cannot get any assistance from a court.' Secondly, the learned Subordinate Judge refers to S. 7(1) of the Madras Act 1 of 1955, and considers that the transfer of the right of reconveyance falls within the mischief of this section.
(3) It appears to me to be very clear that the first appellate court was totally erroneous in its conclusions in this matter. The only ground which seems to merit any serious consideration, in favour of the view taken by the first appellate court, is the ground that the language of the agreement of resale itself restricts the right to Venkataswami Naidu and his heirs (varsugal). I have carefully considered the language, and, the construction of the relevant Tamil clause. I am unable to fired that an such interpretation is warranted; all that, the clause Seems to imply is that all rights under document could be field by Venkataswami Naidu and his heirs (Varsugal). There is absolutely nothing to show that the rights were to be held exclusively by the vendor in whose favour the defendant executed this document, and were not assignable. Under the law, such a right could be definitely assigned, and It could even be argued that, under the very clause aforesaid, the right to assign was included as a right held by Venkataswami Naidu and his heirs. The assignment in favour of the plaintiff (appellant) cannot be resisted by the defendant upon any such ground.
(4) The other grounds are hardly intellegib1e, and do not need any discussion,. There is Absolutely no question of any fraud in this case, and the learned Subordinate Judge seems to have misdirected himself with regard to the legal principles applicable to file facts. There is nothing prevent a vendor of property, who has a right obtain a reconveyance from assigning that right, notwithstanding the fact that he is a lessee n respect of the same property, and that some cuts are due. A contract of lease is totally a different matter, and the law adequately provides for the enforcement of those obligations. Again I am quite unable to see how S. 7(1) of Madras Act I of 1955 can prevent the plaintiff-appellant (assignee) from enforcing the right obtained by the assignment. First of all, S. 7(1) refers to a transfer of 'immoveable property' and the section might have to he strictly construed. More importantly, it is limited to a presumption which applies to the transferor alone. I know of no principle of law, including any part of Madras Act I of 1955, which can inhibit or prevent a third party from obtaining an assignment, merely because the vendor who assigned the right to obtain a reconveyance, was also a lessee who owed some arrears. It is true that Venkataswami Naidu is not a party to the present action. But, obviously, upon the facts as stated by me, he would be estopped from claiming that his assignee could not enforce the right to reconveyance of which he took the assignment.
(5) In this view, the second appeal succeeds, and the decision of the first appellate court is set aside, the decision of the first court (District Munsif) being restored. The costs as originally awarded by the first Court will stand, but, otherwise the parties will bear their own costs throughout. No leave.
(6) Appeal allowed.