LAWS(ALL)-1983-11-1

MUNAWWAR HUSEN Vs. ZAKIR HUSEN

Decided On November 09, 1983
MUNAWWAR HUSEN Appellant
V/S
ZAKIR HUSEN Respondents

JUDGEMENT

(1.) FINDING a conflict between the two Division Bench decisions of this Court reported in Sayed Abdullah v. Ahmad, AIR 1929 Allahabad 817 and Goverdhan v. Raghubir Singh, AIR 1930 Allahabad 101, a learned Single Judge has made the present reference.

(2.) THE necessary facts divorced from the details for deciding the reference are these; One Smt. Bismillah Begum was the owner of the house in dispute to the extent of one-fifth share. She transferred her share in the house to Mohammad Yasin under a registered sale deed. On that very date, Mohammad Yasin executed an agreement to reconvey under a registered instrument. Smt. Bismillah Begam assigned the right of repurchase to Zakir Husain on July 8, 1969, by means of registered deed. THEreafter, a dispute arose between Smt. Bismillah Begam, the heirs and legal representatives of Mohammad Yasin, who had purchased one-fifth share from her, and Zakir Husain, the purchaser of the right of reconveyance. THEse details are not necessary to be stated. It would suffice to mention that on attachment of the right to repurchase being made, Zakir Husain filed an objection under Order XXI Rule 58 of the Code of Civil Procedure and thereafter, on its dismissal, Suit No. 254 of 1970, purporting to be under Order XXI Rule 63 CPC was filed. Through this suit, he claimed declaration that he was entitled to repurchase one-fifth share in the house, which had been sold by Smt. Bismillah Begam in favour of Mohammad Yasin who had executed an agreement agreeing to reconvey the same. He asserted that by virtue of the purchase made by him from Smt. Bismillah Begam of the right of reconveyance, he had entered into her shoes. THE suit was contested on the ground that the right to repurchase was personal and this could not be assigned by Smt. Bismillah Begam.

(3.) THE question, which was argued before the learned Single Judge and was also pressed before us, was that the right to repurchase in favour of Smt. Bismillah Begam executed by the agreement dated July 18, 1966, being personal could not be assigned by her to Zakir Husain, the plaintiff-respondent.