AZIZ AHMAD Vs. RAFIQAN

JUDGEMENT

(1.) N. L. Ganguly, J. This second appeal by the plaintiff is against the concurrent judgment of the two courts below refusing to decree the plaintiff's suit for specific performance of the contract in respect to the property in question. Admittedly, the property in question was sold by the plaintiff by registered sale-deed for a consideration of Rs. 1500 on 18-1-65 in favour of the defendants. The same day, Banne Ali also execution agreement to resale the property in question in favour of the plaintiff on the terms and conditions as written thereunder. One of the conditions in the agreement for resale was that the property will be purchased by the plaintiff within a period of four years from the date of execution of the said agreement failing which the agreement shall stand cancelled. Banne Ali died before expiry of four years period, leaving his heirs and wife as legal representatives. The defendants- respondents voluntarily extended the period of four years further by two years and executed the agreement of resale on 12-1-69 in continuation of the original agreement.

(2.) THE plaintiff in the plaint stated that he was willing and ready to purchase the said property and comply his own part in fulfilment of the agreement. It has also been said that on 10-1-71 the plaintiff- appellant had contacted the defendants and tendered the entire sale consideration to them. THE defendant No. 1 could not accept the request of the plaintiff since his brother was not present there. On the request, the plaintiff left the defendants' house and again on 8-2-71, the plaintiff contacted the defendants and asked them to execute the sale-deed. THE defendants declined to execute the sale-deed in favour of the plaintiff.

(3.) THE submission of the learned counsel for the appellant cannot be accepted as correct. THE decision of the Division Bench further observed that there is a fundamental difference between an agreement to sell and agreement to reconvey the property already sold. It is true that these are both agreements but it has been declared by the Supreme Corut in K. Simrathmull v. Manglinguachgauder, AIR 1963 SC 1182. It is the law that a contract to recovery is in reality a concession made by the vendee to the vendor and also in a nature of a privilege. THE lower appellate court also quoted a passage from 1972 ALJ 865 which also quotes passage from Halsbury's Laws of England as under: "where under a contract, conveyance or Will a beneficial right is to arise upon the performance by the beneficiary of some act, in a stated manner or at stated time, the act must be performed accordingly. . . . . . . . . . . . . . . . . . . . . . . "