Salil Kumar Datta, J.
1. This is an appeal against a decree of affirmance in a suit for specific performance of a contract of reconveyance of the suit property. The defendant No. 2 sold the suit property to the defendant No. 1 by a registered kobala dated Dec. 7, 1959 (Agrahayan 20, 1366 B. S) for a consideration of Rs. 250/- only. On the same date the defendant No. 1 executed an agreement agreeing to reconvey the same property to the vendor, his heirs or nominees if the said amount of Rs. 250/- was paid to him at a time within Kartick, 1370 B. S. The plaintiff purchased the said property with the benefit of the agreement for reconveyance from the defendant No. 2 by a registered kobala dated May 5, 1960 for consideration. The plaintiff thereafter by notice dated Sept. 14, 1963 requested the defendant No. 1 to execute the reconveyance on receipt of the sum of Rs. 250/- but the defendant No. 1 failed to execute the deed as required. Thereupon the plaintiff on deposit of the sum of Rs. 250/- in Court instituted the connected suit on Nov. 19, 1963 praying a decree in usual terms for specific performance of the contract against the defendant No. 1 in respect of the suit property.
2. The suit was contested by the defendant No. 1 who filed a written statement denying inter alia the locus standi of the plaintiff to purchase the property, as the defendant No. 2 as vendor had no subsisting interest in the property. It was further stated that the right to the reconvey was confined only to the vendor or his heirs and legal representatives and to no one else. It was further stated that the plaintiff in collusion with the defendant No. 2 interpolated the agreement by causing some words to be written in the agreement in 'tolapat'. It may be stated here that in the agreement of reconveyance, the words (vernacular omitted) ('or your nominated person') had been written after and squeezed in and above the words (vernacular omitted) ('to you or to your heirs') followed by an explanation at the bottom by the deed-writer. It was accordingly submitted that the suit should be dismissed.
3. The learned Munsif in a trial on evidence decreed the suit which was affirmed on appeal except in regard to cost which was disallowed. This appeal is against this decision.
4. Mr. Samanta learned Advocate appearing for the appellant defendant No. 1 submitted that the first appellate Court had found that the interpolations were suspicious but error in law was committed in not dismissing the suit on the ground that suspicion was not proof. He further submitted that in view of the admission of the deed-writer in evidence that the said additions were written by him without any instruction from either party, the Courts erred in law in decreeing the suit on that basis.
5. Mr. Ghosh, learned Advocate for the defendant respondent No. 1 submitted that the decision is based on findings of fact which should not be interfered with in a second appeal. Further the relief which was a discretionary remedy was rightly allowed in the attending circumstances.
6. Section 15 Clauses (a) and (b) of the Specific Relief Act, 1963 indicates that the specific performance of contract may be obtained by a party to the contract or his representative in interest or his principal. This right will not be available where the personal quality of such party is a material ingredient of the contract. The right will not be available also where the contract provides that the interest of the party shall not be assigned except where such party has already performed his part of the contract or the performance of the representative or the principal has been accepted by the other party.
7. In the case before us, the deed-writer stated in evidence that the disputed words which were written as there were omissions though on his own without instructions from either of the parties. He further stated that the deed was read over and explained by him to the parties and that the explanation at the bottom was written at the same time when the deed was written. The defendant No. 1 in evidence did not dispute these assertions. It is accordingly difficult to hold that these were interpolations subsequently made as alleged.
8. Even if the writings are held as interpolations, there is no provision in the agreement restricting assignment of the interest in the agreement. In absence of such restrictive clause, it is not possible to hold that the plaintiff as the representative in interest by assignment is not entitled to the specific performance of the contract. The Courts below rightly decreed the suit in the circumstances.
9. The appeal accordingly fails and is dismissed without any order as to costs in the circumstances.