P.N. Mookerjee, J.
1. This appeal arises out of a suit for specific performance of a contract of resale of land. The plaintiffs who claim to be assignees from the original vendor (who was the intended vendee in the agreement for re-sale) and who succeeded before the trial Court are the appellants before me and their grievance is that their suit has been wrnngly dismissed by the lower appellee Court.
2. The relevant facts, leading up to the present litigation, are not now in dispute and they may he shortly stated as follows :
3. Pro forma defendant No, 3 Pear Ali Khan was the original owner of the suit properties. In December, 1941, he sold the said properties to defendant 1 Sabjan Mandal for Rs. 250/- by a kobala, dated the 1st of that month, and registered on the 9th. On this last-mentioned date (9th), there was a simultaneous Ekrarnama or agreement for re-sale, Ex. 7, executed and registered by the vendee, Sabjan Mandal, in favour of the original vendor Pear Ali Khan, the relevant stipulation being that if Pear Ali returned or paid back to Sabjan the said sum or consideration money of Rs. 250/- in the month of Chaitra of any year within 1354 B. S. Sabjan, (defendant 1), would be bound to re-convey the suit properties to him (Pear Ali).
On 16-2-1944, Pear Ali instituted a suit (Title Suit No. 45 of 1944) against Subjan Mandal and the prasent defendant 2 Kayam Ali Sheikh, in whose favour Sabjan had executed a kobala in respect of the present suit properties on 22-12-1943. That suit was decreed by the trial Court on 8-3-1945, but, on appeal by the defendant Sabjan, it was dismissed on the ground that there was no valid and effective tender of the consideration money in terms of the agreement for re-sale (Ex. 7).
This was on 11-12-1945, but, in the meantime, on the strength of the decree of the trial Court in his favour, Pear Ali had sold the suit properties to the present plaintiffs Saved Mistri and Mt. Momena Bibi by two Kobalas, dated 14-3-1945, for a total sum of Rs. 400/-, out of which he deposited the sum of Rs. 250/- in favour of Sabjan Mondal in the Title Suit, referred to above, for getting the re-conveyance in terms of the decree of the trial Court.
On dismissal of the suit at the appellate stage, the said deposit was withdrawn by Pear Ali and, thereafter, the plaintiffs made a fresh tender of the said amount (Rs. 250) to the defendants (1. & 2) in Chaitra 1353 B. S. and asked for a reconveyance under the Ekrarnama, Ex. 7, and this having been refused, the present suit was brought on 12-4-1947.
4. The suit was decreed by the trial Court, but, on appeal by defendant 2 Kayem Ali, it has again been dismissed by the lower appellate Court. Before the lower appellate Court only two points appear to have been urged in support of defendant 2's appeal, viz., (1) that the right to get a re-conveyance under the Ekrarnama, Ex. 7, was a mere personal right in favour of Pear Ali not assignable in law, and as such there could be no re-conveyance at the instance of the assignees, the plaintiffs of the present suit, and (2) that the appellant defendant 2 Kayem Ali was a bona fide purchaser for value without notice and so the Ekrarnama, Ex. 7, as not enforceable against him and the plaintiffs were not entitled to any relief in the suit.
5. On the second point, there is the concurrent finding of both the Courts below that defendant 2's kobala, Ex. B, is a sham transaction without consideration and with ample notice of the Ekrarnama, Ex. 7, and the materials on record do not warrant a different conclusion. I, accordingly, accept the said finding.
6. The first question, however, does not appear to have been argued before the trial Court and we do not, therefore, get any assistance on this point from the judgment of the learned Munsif.
The learned Subordinate Judge, while rejecting the broad contention of defendant 2, who was the appellant before him, that a contract cannot be enforced except by the actual parties to it, has given him relief and dismissed the plaintiffs' suit on the ground that the Ekrarnama, Ex. 7, not having mentioned 'heirs, assignees, administrators', its benefits were not assignable in law and, accordingly, the plaintiffs, as assignees from Pear Ali, were not entitled to a decree on the basis of the same. The propriety of this view is one of the matters for consideration in this appeal.
7. I am unable to accept this part of the judgment of the learned Subordinate Judge. Generally speaking, the benefits of a contract are assignable, subject, of course, to the rule of a contrary intention (Vide Section 40, Indian Contract Act and Section 23(b), Specific Relief Act). That is the rule in England. That is also the rule in this country. The onus is undoubtedly on the person who pleads against assignability and he has to discharge it by proving the contrary intention.
This contrary intention may be express, (Vide e.g., the second part of the proviso to Section 23(b), Specific Relief Act), it may also arise by necessary implication, and one recognised illustration of this latter class is to be found in what are usually known as 'personal contracts', or contracts, depending upon 'the learning, skill, solvency or any personal qualification', -- to quote the language of Section 23(b), Specific Relief Act, -- of the assignor or the party to the contract, from whom the benefits of the contract are claimed under the' particular assignment.
In the Ekrarnama, Ex. 7, I do not find any personal element whatsoever, nor do I find in it even the slightest indication of any contrary intention against assignability of its benefits by the intended vendee Pear Ali. It is a contract for re-sale of land, pure and simple. It contains no express prohibition against assignment. There is nothing in the nature or subject matter of the contract to make it a personal contract, or to raise any necessary implication as to the requisite contrary intention against the assignability of its benefits.
The mere absence of the phrase 'heirs, assignees, administrators', on which the learned Subordinate Judge relied, is insufficient to raise any such implication. The general rule of assign-ability will, therefore, apply. If the absence of the phrase, quoted above, had significance assigned to such absence by the learned Subordinate Judge, not only assignees but also heirs would be precluded from availing themselves of the benefits of the contract. This would be manifestly absurd, particularly when the time for performance is spread over a period of seven years or more.
This length of the period is also an argument in favour of assignahility of the contract (Ex. 7), I do not, therefore, agree with the learned Subordinate Judge in holding that the benefits of the Ekrarnama, Ex. 7, were not assignable in law and the plaintiffs can claim no relief on the basis of the same.
8. I am supported in my view by the Privy Council decision in the case of -- 'Sakalaguna Nayudu v. Chinna Munnuswami Nayakar', AIR 1928 PC 174 (A), which affirmed the Madras decision, reported in -- 'Chinna Munuswami Nayudu v. Sakalaguna Nayudu', AIR 1923 Mad 699 (B). In the light of that authority, the law has been explained and elaborated in the case of -- 'Vishweshwar Narsabhatta v. Durgappa Irappa', AIR 1940 Bom 339 (C), where the two earlier Bombay cases, viz., -- 'Vithoba Madhav v. Madhav Damodar', AIR 1918 Bom 158 (D) and -- 'Har-kisandas Bhagwandas v. Bai Dhanoo', AIR 1934 Born 171 (E), were fully discussed. The still earlier case in -- 'Gurunath Balaji v. Yamanava Nalarao', 35 Bom 258 (F), must share the same criticism as was made of AIR 1918 Bom 158 (D) in AIR 1940 Bom 339 (C).
The rule of general assignability appears now to be firmly established and the exception, founded on contrary intention, has to be proved by the party, asserting it, to deprive the assignees of the benefits of the contract. This is the true approach and the converse rule, apparently under-lying the decisions in 35 Bom 258 (F) and AIR 1918 Bom 158 (D), can no longer be said to be good law.
The Privy Council decision in the case of --'Situl Purshad v. Luchmi Pershad', 10 Ind App 129 (PC) (G), had special features which sufficiently disclosed the requisite contrary intention and warranted a finding that the contract in the said case was a 'personal contract'. That case is no authority against the statement of the law, made above by me, I, accordingly, reject the reasons given by the learned Subordinate Judge in support of his judgment and accept the appellants' contention on the point.
9. It is argued, however, by Mr. Bhabesh Chandra Mitter and Mr. Bejoy Bhose, who appear for the contesting respondents, defendants 1 and 2, that there was neither in fact nor in law any assignment to the plaintiffs of Pear Ali's right to get a re-conveyance under the Ekrarmana, Ex. 7. This point does not appear to have been raised in either of the two Courts below and, in the circumstances of this case, I would have been fully justified to refuse leave to the raising of this new point, particularly when the time for performance of the contract expired only during the pendency of the suit in the trial Court and about five months after the filing of the written defence. If this question had been raised in the written statement, the plaintiffs would possibly have been able to remedy this alleged defect in time. That remedy is now lost by reason of lapse of time and it would be extremely unjust to accept this late submission of the defendants at this stage, I am not impressed by the general allegation in the written statement of defendant 1. It is too vague to suggest this aspect of the matter.
It really attacked the plaintiffs' kobalas as sham transactions, which however, was given up during trial and it only specifically averred that Pear Ali had no right to get a re-conveyance under the Ekrarnama, Ex. 7. There was not the slightest suggestion either in the written statement, or, at any stage in the Courts below, that, by their kobalus, Exs. 1 and 1-A, the plaintiffs did not acquire Pear Ali's right to the re-conveyance, if any, under the Ekraranama, Ex. 7, even though it was specifically claimed in para 9 of the plaint that the said right had passed to the plaintiffs under the said Kobalas, Exs. I and 1-A. I would not, however, rule out thus argument on the technical ground, as, in my opinion, it has no substance and it fails on the merits.
10. The kobalas, Exs. 1 and l-A, purport to transfer 'inter alia', the entire 'right, title and interest' fcfr laikhrs vkej tkckrhvk lk n[kyof the vendor Pear Ali in the suit properties. At the date of the sale (14-3-1945), the vendor Pear Ali had only the right to get the re-conveyance under the trial Court's decree, then standing, on the basis of the Ekrarnama, Ex. 7. The kobalas, Exs. 1 and 1-A, were in the nature of anticipatory documents, purporting to transfer the title which would follow eventually from execution of the said decree, and, out of their consideration monies, the decretal amount (Rs. 250/-) which had to be deposited for getting the re-conveyance was actually deposited in Court by the decree-holder Pear Ali.
In this context, it is perfectly reasonable to hold that Pear Ali's right to the re-conveyance, as then recognised and merged in the said decree, was transferred by the Kobalas, Exs. 1 and 1-A, and, on the setting aside of the said decree by the appellate Court, his original right to re-conveyance under the Ekrarnama, Ex. 7, became vested in the vendees, namely, the present plaintiffs.
I am unable to accept the respondents' argument that, the kobalas, Exs. 1 and 1-A, having purported to transfer the properties which, strictly speaking, did not belong at the time to the vendor Pear Ali, nothing actually passed by or under the said documents and the plaintiffs acquired nothing.
In my opinion, in the circumstances set out above, the plaintiffs, by these kobalas, Exs. 1 and 1-A, obtained at least the vendor Pear Ali's right to get re-conveyance of the suit properties (which right, as I have already said, was validly assignable in law) under the Ekrarnama, Ex. 7, which at the time had merged in the trial Court's decree, then standing in Pear Ali's favour, and which subsequently regained its old or original form on the setting aside of the said decree by the appellate Court.
I have no doubt in my mind that this was intention of the parties and also the effect of the two kobalas, Exs. 1 and 1-A, and the fact that Pear Ali who was made a party to the present, suit as pro forma defendant 3 did not controvert this position in spite of the specific allegation on this point in para 9 of the plaint further confirms it. I do not see how any other view of the two kobalas, Exs. 1 and 1-A, is possible. It is absurd to think that the properties were transferred without the right to the re-conveyance which was the very foundation of title.
It is impossible to separate the two and, in my opinion, the transfer of the present suit properties by the two kobalas, Exs. 1 and 1-A, with the entire right, title and interest of the vendor Pear Ali therein, involved and included, -- and there can be no doubt on this point in the particular circumstances of this case, -- assignment of the said vendor's right to the re-conveyance also. I hold, therefore, that there is no substance in this new argument of the respondents and I have no hesitation in rejecting it.
11 In the above view of the matter, I allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court.
12. In the circumstances of this case, I direct the parties to bear their own costs in this Court and in the Court of appeal below. The plaintiffs, however, will get their costs of the trial Court from the contesting defendants.
13. Leave to appeal under Clause 15, Letters Patent is asked for and it is refused. January, 25, 1955.
In terms of the judgment delivered on 10-1-1955, document of re-conveyance is to be executed by respondents 1 and 2 within six weeks fromthis date. In default, the appellants will be entitled to have it executed and registered throughCourt at the cost of the said respondents by execution of the decree. Let this order be treatedas part of the judgment, delivered on 10-1-1955,and let the decree he drawn up accordingly.