PARIYAYI Vs. PARVATHY AMMA

JUDGEMENT

(1.) DEFENDANT appeals. Plaintiffs filed the suit for specific performance of a covenant in a sale deed. The sale deed is Ext. Al. It is dated 15-8-1962. By Ext. Al sale deed, defendant purchased the suit property from the first plaintiff. The covenant is in these terms: The defendant refused to retransfer the property when the plaintiffs made the demand as per the above clause. So the plaintiffs wanted specific performance of the above clause through court Hence the suit.

(2.) THE defendant contended that the clause in the sale deed is not enforceable. He submitted that the clause would create only a personal right to the first plaintiff and that since the first plaintiff has transferred whatever right he had under the said clause to the second plaintiff the clause cannot be enforced by the first plaintiff or by the second plaintiff. THE defendant also contended that the suit is premature.

(3.) COUNSEL on both sides argued their case very ably. The learned counsel for the appellant submitted that the clause provided for re-purchase in the document will give rise only to a personal right and that that right is not a transferable or alienable right. In short, his submission is that a right given under a document of conveyance for re-purchase to a vendor is always a personal right which is an inalienable right, and an assignee of such a right cannot enforce that right specifically. He elaborates the point and submits that the clause in Ext. Al is not enforceable specifically because the right under the clause has been transferred by the first plaintiff to the second plaintiff. According to him, no decree can be given to the second plaintiff or to the first plaintiff. He says that the second plaintiff has purchased only a right, the vendor of it is incapable of transferring it. He points out the prayer in the plaint and submits that the decree that is sought for is a decree for specific performance of the clause in favour of the second plaintiff.