VAZHAKULANGARAYIL SAFIYA BI Vs. ARIYUR ABDUL SHUKOOR SAHIB

JUDGEMENT

(1.) THIS appeal, which involves a very interesting question of what is claimed to be a conflict in the case law needing elucidation, arises upon the following facts. We might state, at the outset itself, that the facts are not in controversy.

(2.) ON 7-10-1954 one A. Abdul Shukoor Sahib (plaintiff) conveyed the suit property 2/74 Sydenhams Road, Periamet. Madras to the first defendant for Rs. 8000 by a registered sale-deed. The second defendant is the husband of the first defendant, claimed to be acting throughout on her behalf. The Parties entered into an agreement in writing (Ex. A 1) on the same date. Under this agreement, the first defendant undertook to reconvey the same property to the plaintiff on payment of the sum of Rs. 8000 within a period of five years from 7-10-1954, it being equally agreed that the plaintiff should exercise the right of repurchase, if he desired to do so, after 7-10-1958 and on or before 7-10-1959. Admittedly, the first defendant entered into possession of the suit property.

(3.) THE first defendant, along with the second defendant, sold the suit property to the third defendant for Rs. 8000 0n 25-3-1957. It has to be carefully noted that the date of this sale, 25-2-1957, was even prior to the commencement of the period within which the plaintiff could exercise his option to repurchase, namely, 7-10-1958 to 7-10-1959. On the same date the third and the fourth defendants executed an agreement in favour of their vendor. The first defendant, by means of which not only was it made clear that the vendees were fixed with knowledge of the prior agreement to reconvey in favour of the plaintiff. but if further appears, unequivocally, that the vendees undertook to implement this obligation. in specific terms. The relevant part of the document. Ex. A2, may be extracted and set forth here, as this undertaking is of some importance: "the purchaser and third party, added by way of abundant caution, hereby agree to conform to such agreement by and between the seller and the said A. Abdul Shukoor Sahib and execute the conveyance in his favour at the expense of the said A. Abdul Shukoor Sahib (the third party also joining in the sale-deed by way of abundant caution if so desired) on receipt of Rs. 8000 from the said A. Abdul Shukoor Sahib within the period fixed in that behalf if the said A. Abdul Shukoor Sahib requires the seller to comply with the said agreement in time, on the strict understanding that time is the essence of the contract".