SONPAL Vs. BITTO DEVI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for specific performance of a contract for sale of the property in the suit. By a deed dated 28th August, 1964, the plaintiff has purported to sell the land in suit to the defendant for the sum of Rs. 1000/-on condition that the buyer, the defendant, would be bound to retransfer the land to the plain tiff at any time within five years on payment of the amount for which the property had been sold, the condition being incorporated in the sale-deed itself. Under clause (c) of Section 58 of the Transfer of Property Act, the transaction amounted to mortgage or conditional sale. The possession had been delivered to the defendant under the transaction in question. The plaintiff was a bhumidhar if the land in suit and the U. P. Zamindari Aboli tion and Land Reforms Act applied thereto. Section 164 of that Act lays down : "164. Any transfer of any holding or part thereof made by a bhumi dhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of any engagement which may give rise to a pecuniary liability, shall, notwithstanding any thing contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.'' The trial Court dismissed the suit holding that transfer of bhumidhari rights in land could not be made subject to any condition and that, therefore, it could not be said that the condition of re-conveyance incorporated in the sale deed itself was in fact, an agreement subsequent to the sale. How ever, according to the trial Court, such agreement could not be enforced and in as much as the sale-deed does not bear the signatures of the defendant, it cannot be said that the sale of the land in the suit by the deed in question was subject to any agreement to re-conveyance. According to the trial Court, it was a sale for all times and for all purposes. The lower appellate Court dismissed the appeal and confirmed the finding of the trial Court. It is not the law that an agreement to sell immovable property must be in writing and that such writing must be signed by both the parties to the transaction. An agreement to sell immovable property can be made orally. The fact that the transfer was accepted by the defendant, subject to the con dition expressly stated in the sale-deed, the condition was binding on her. It cannot be said that as she was not a signatory thereto she was not bound by the condition requiring her to reconvey the land on payment of the sale-consideration at any time within five years of the sale. It is therefore, not right to say that there was no agreement to resell the land in suit. The condition in the sale-deed incorporated the agreement between the parties which must have been arrived at before the sale-deed was executed and subject to which the transfer was taken by the defendant. Transfer of Property Act made the transaction a mortgage notwithstand ing that it purported to be a sale. Section 164 of the U. P. Zamindari Aboli tion and Land Reforms Act deemed the transaction to be a sale at all times and for all purposes notwithstanding the provisions of the Transfer of proper ty Act, which deemed it to be a mortgage. None of these provisions without the condition agreed to between the parties and subject to which the sale was made. It was only the legal effect of the transaction, which is altered by the Zamindari Abolition and Land Reforms Act. If the provision of Section 164 of the U. P. Zamindari Abolition and Land Reforms Act had not been applicable to the transaction in suit, the plaintiff would have been entitled to sue for redemption. The transaction is deemed to be a sale by reason of Section 164 of the U. P. Zamindari Abolition and Land Reforms Act. It does not take away the plaintiff's right to sue for the specific performance of the contract of sale, represented by the condition incorporated in the sale-deed. In the result, the appeal succeeds and is allowed with costs. The suit is decreed with costs throughout. It has been stated that the sale considera tion had already been deposited in the trial Court when the suit was filed, as per paragraph 5 of the plaint. The defendant shall reconvey the land in question by executing a sale deed and putting the plaintiff into possession within a month of this judgment failing which the plaintiff may have the same done through the process of the Court. The amount sale- consideration shall be payable to the defendant after adjusting ?he costs payable to the plaintiff.