G SRINIVASALU NAIDU Vs. RAJU NAICKER

JUDGEMENT

(1.) To decide the only question which has been placed before us in this Letters Patent Appeal against the judgment of Viswanatha Sastri J., in A. S. No. 287 of 1947, it is sufficient to state the following facts: The defendants are the appellants. The suit was for specific performance of an agreement to reconvey the suit properties. Plaintiffs 1 to 3 are brothers, and plaintiffs 4 to 6 are their sons. Defendants 1 and 2 are brothers and defendants 3 and 4 their sons. By a deed of sale dated 9-5-1937 (Ex. D-18) executed by the plaintiffs, the suit properties were conveyed to the second defendant. On 14-5-1937, the first defendant executed in favour of plaintiffs 1 to 3 an agreement of reconveyance (Ex. P-1), which is the basis of the present suit for specific performance. The material part of this agreement runs as follows:

(2.) Learned counsel for appellants again pressed before us the contention that the sale and the agreement to reconvey were two different transactions to be judged separately. In support of this contention, be relied strongly on the decision of the Privy Council in -- 'Veeraswami v. Narayya', AIR 1949 PC 32 (B), which had also been relied upon by Govinda Menon J. It is necessary, therefore, to deal with that case at some length. In that case, the appellant and his father sold certain properties to the respondents for Rs. 6,000 and a sale deed was executed on 30-11-1932. iN 1940 the appellant, alleging that, when the properties were sold it was verbally agreed that they should be reconveyed if the purchase price was repaid within a period of five years, which was later extended for a further three years, instituted a suit against the respondents for specific performance of the alleged oral agreement to reconvey. The evidence established that there was such an oral agreement. It was, however, contended that the appellant was precluded by Section 92, Evidence Act, from adduc-ing evidence of such an agreement. Their Lordships of the Judicial Committee overruled that contention on the ground that Section 92, Evidence Act, did not preclude evidence of such an agreement because the agreement did not contradict, vary or subtract from the terms of the sale deed within the meaning of that section; nor did the agreement add to the terms of the sale deed. The decision was, therefore, on the applicability of Section 92, Evidence Act, to the facts before them. In dealing with the objection based on that section, there Lordships observed that the sale and agreement to reconvey should be treated as separate and independent transactions, that is to say, that the terms of each should be taken separately. The following observations of their Lordships only lead on to the discussion of the only question which fell for decision:

(3.) We shall now refer to the judgment of Govinda Menon J., in S. A. No. 851 of 1946 (Mad) (A). The decision itself does not assist the appellants. The first defendant in the case before him, who was the manager of a joint family, purchased with funds belonging to the joint family certain property, by a sale deed dated 17-5-1939. On the same day, he executed in favour of the vendor an agreement to reconvey the property for the same consideration, in case demand was made within four years from the date. The vendor brought a suit for specific performance of this agreement of reconveyance. The suit was resisted inter alia on the ground that it would not be binding on the other members of the family as it could not be supported by necessity or benefit to the family. The Courts below found that both the sale and the agreement to re cenvey were parts of the same transaction, and therefore, the agreement to reconvey was binding on the other members of the family. The learned Judge relied on the decision of the Privy Council in AIR 1949 PC 32 (B) above mentioned, and held that the two should be treated as different transactions and each had to be considered in its own setting. He then proceeded to say: