JUDGMENT
1. In the suit out of which this appeal arises the plaintiffs alleged that on the 3rd October, 1953, there was an agreement executed by the defendants In favour of the plaintiffs for sale of the disputed lands to the plaintiffs for a sum of Rs. 2999/-. It was alleged that a sum of Rs. 500/- wag Paid oh the date of the agreement and the deed! of sale was to be executed by the defendants within six months from the date of the agreement. It was also agreed between the parties that the plaintiff would pay a sum of Rs. 648/- in cash on the date the sale was registered, and! the rest of the consideration was to be paid by the plaintiffs towards the liquidation of a previous usufructuary mortgage with regard to the disputed lands.
The plaintiffs brought the suit for specific performance of the contract. The suit was contested by the defendants on the ground that there was a clause for reconveyance in the contract of sale and the defendants had also agreed to repay the sum of Rs. 500/- to the plaintiffs. The defendants also asserted that the plaintiffs had not redeem
the usufructuary mortgage and in view of the clause for reconveyance the plaintiffs were not entitled to a decree for specific performance of the contract of sale. Upon these rival contentions of the parties the learned Munsif held that the laintiffs were not entitled to a decree for specific performance, but they were entitled to a refund of the amount of Rs. 500/- given to the defendants.
The learned Munsif accordingly granted a decree to the plaintiffs for recovery of a sum of Rs. 500/- with proportionate costs. The plaintiffs took the matter in appeal to the Subordinate Judge of Dhanbad, who reversed the decree of the learned Munsif and granted the plaintiffs a decree for specific performance of the contract of sale of the disputed properties. The view taken by the learned Subordinate Judge was that the clause for reconveyance in the contract of sale was not really an agreement to re-sell but it was in the nature of “a contract to make a contract” and, therefore, not enforceable in law.
2. In support of this appeal learned Counsel for the defendant appellants made the submission that the view taken by the lower appellate court is erroneous and on a proper construction of the contract for sale dated the 3rd October, 1953, it ought to be held that there was a completed contract for re-sale of the property within a period of three years from the 3rd October, 1953, and the learned Subordinate Judge was erroneous in holding that there was “a contract to make a contract”. In our opinion the argument put forward by learned counsel for the appellants is well founded and must be accepted as correct. The agreement dated the 3rd October, 1953, which is exhibit 2, has been officially translated, and the relevant portion of this document is to the following effect:–
“Thig deed of agreement is executed to the following effect that we, having purchased the lands etc. recorded under Khata No. 10 situate in mauza Bastakola from Kali Charan Das under a registered Khas Kobala deed No. 1765 of 1933 A.D. of the Dhanbad Sub-Registry Office have been possessing and occupying the same and out of the same we proposed to sell the lands etc. specified in the schedule below for procuring money as we stood in the need of money for carrying on our business whereupon you agreed to purchase the said entire lands for Rs. 2999/- (Rupees two thousand nine hundred and ninetynine) and we made this agreement to sell you (the said lands) for the said consideration and out of the entire consideration as per agreement we have received from you an advance of Rs. 500/- (Rupees five hundred) and we having executed this agreement In your favour agree and stipulate that for the purpose of selling the lands etc. specified in the schedule to you, we shall execute and get registered a KoBala in your favour within six months from this day and at that time we shall take the remaining amount of consideration money. Within six months from this day we shall not be competent to make any kind of transfer such as gift, sale etc. of the said lands- etc. to anybody else except yourselves or to encumber the same in any way e.g. mortgage etc. Should we do so, the same
shall be unacceptable and inoperative. Should we fail to execute a Kobala deed in your favour in respect of sale of the lands specified in the schedule within six months from this day, you shall be competent to get it done by taking recourse to law and we shall not be competent to raise any objection thereto. Whenever, i.e. when ever within six months from this day we shall execute such deed, you shall pay us the remaining amount of consideration in the undermentioned manner and we shall take the same. Be it stated that we mortgaged the lands etc. specified in the schedule under a Sudbandnak (usutructtuary mortgage) to the mother of Bira Goswami for Rs. 1851/- (Rupees one thousand eight hundred and fiftyone) and we have not yet Seen able to redeem the same. When we shall execute such Kobala in your favour in respect of the sale of the lands etc. specified in the schedule to you, you shall deduct Rs. 1851/- out of the said consideration for redeeming the said Sudbandhak (usufructuary mortgage) and you shall pay us the remaining amount of Rs. 648/- out of the consideration and we shall receive the same. Be it further stated that we have agreed to receive in the aforesaid manner the consideration money as per this agreement executed by us in respect of selling the lands etc. specified in the schedule to you and we shall not be competent to make any hitch regarding the same. Should we refund you the said consideration i.e. Rs. 2999/- in respect of the said lands etc. within three years from this day, you shall accept the same. We have settled the said term with you and you have agree ed to it and you have said that you would execute and Set registered one separate agreement in our favour to that effect.
To this effect, we, of our own accord in sound state of health and in clear conscience execute this agreement. Dated the 16th (Sixteentk) Assin 1360. (Thirteen hundred and sixty) B. S. corresponding to 3-10-53 (the third October, Nineteen hundred and fifty-three A.D.).”
Learned counsel for the appellants submitted that the official translation was somewhat inacurate with regard to the last paragraph and the correct translation of the document would be that the plaintiffs agreed to execute a sale-deed and there is nothing in the document with regard to registration. This portion of the document in original in Bengali is transliterated as follows :–
“Ar ejmalir ukta mulyer taka arthat 2999/-taka jadi amra apnadioke adya hoite 3 (tin) batsarer madhye ferat di taha hoile apnara ferat loiben. Airup kathabatra apnader sahit sthir koriachhi abong apnara tahate raji hoiachhen, abong tat-mule apnara amadigoke ek khana prithak agreement lekha pora wo sampadan mate bikrof koria diben boliachhen”.
In our opinion the submission on behalf of the appellants appears to be correct and there is a clear clause in this agreement by which the plaintiffs agreed to reconvey the properties if the defendants, repaid the consideration money within three years from the 3rd October, 1953. In our opinion there was a completed contract for reconveyance between the parties on the date of
the agreement, that is, on the 3rd October, 1953, and the learned Subordinate Judge was erroneous in holding that the clause must be construed as merely a contract to make a further contract of reconveyance.
3. If this view is correct, it follows that the learned Subordinate Judge was erroneous in granting the plaintiffs a decree for specific performance. In our view the present case comes within the ambit of Section 21, Clause (d) of the Specific Relief Act, which states as follows:–
“21. The following contracts cannot be specifically enforced:–
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(d) a contract which is in its nature revocable” ,
The illustration to this clause of the section is as follows:–
“A and B contract to become partners in a certain business, the contract not specifying the duration of the proposed partnership. This contract cannot be specifically performed, for, i£ it were so performed, either A or B might at once dissolve the partnership”.
On a perusal of the agreement in this case we
are of opinion that there was only a revocable
contract of sale between the parties and an option was given to the defendants to get reconveyance of the properties at any time within the
period of three years from the 3rd October,
1953, on repayment of consideration. It should
also be noticed that in this case the defendants
were given six months time from the date of the
agreement to execute the sale-deed, and the option given to the defendants to get reconveyance
of the properties was for a period of three years
from the very date of the agreement, that is,
from the 3rd October, 1953. As we have already
stated, the agreement between the parties dated
the 3rd October, 1953, for sale of the properties
was a revocable agreement, and in view of the
provisions of Section 21(d) of the Specific Relief
Act the plaintiffs are not entitled to a decree for
specific performance. For these reasons we set
aside the judgment and decree of the learned
Subordinate Judge of Dhanbad, dated the 11th
Decembler, 1956, and restore the judgment and
decree of the learned Munsif of Dhanbad, dated
the 13th May, 1955. We accordingly allow this
appeal but there will be no order as to costs.
