VISHWESHWAR NARSABHATTA GADDADA Vs. DURGAPPA IRAPPA BHATKAR

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from a decision of Mr. Justice Lokur, as he then was, in second appeal. The plaintiff is suing to recover the suit property from defendant No.1, and the material facts are these.

(2.) THE suit property at one time belonged to the father of the plaintiff, and he sold it in 1901 to the father of defendant No.2. THE father of defendant No.2 died prior to 1926, leaving three sons, the eldest of whom was named Mahableshwar. On August 8, 1926, Mahableshwar, as the manager of the family, sold the suit property to defendant No.1 for a sum of Rs. 600. On August 10, that is two days later, defendant No.1 granted a permanent lease of the property to Mahableshwar, which lease, the learned Subordinate Judge says, came to an end for non-payment of rent, and nothing turns upon that. On the same day defendant No.1 granted to Mahableshwar an option to repurchase the property at the price of Rs. 600, the option being contained in exhibit 48, to which I will refer more particularly in a moment. Mahablesh-war and the third brother died in or prior to 1930, leaving defendant No.2 as the sole surviving coparcener. In 1933 defendant No.2 assigned his right to repurchase under exhibit 48 to the plaintiff for Rs. 400. On September 2, 1933, the plaintiff filed this suit, claiming redemption on the basis that the transaction was really a mortgage, but subsequently the plaint was amended by adding a claim for reconveyance under exhibit 48, and thereafter the plaintiff abandoned the claim that the transaction was a mortgage. On December 4, 1933, the plaintiff deposited Rs. 600 in Court, being the purchase money payable under exhibit48. THE learned Subordinate Judge of Sirsi dismissed the plaintiff's suit on; the ground that the option of repurchase in exhibit 48 was not assignable. THE learned District Judge of Kanara in appeal reversed that decision and decreed the plaintiff's suit. In appeal to this Court Mr. Justice Lokur reversed the decision of the lower appellate Court and restored the decree of the trial Court, holding that the option of repurchase was not assignable, and the question is whether that decision is right.

(3.) MR. Justice Lokur decided that the option was not assignable on the strength of a decision of this Court in Vithoba Madhav v. Madhav Damodar (1918) I.L.R. 42 Bom. 344: s.c. 20 Bom. L.R. 654 and a later decision of this Court, following that case, in Harkismdas v. Bai Dhcmoo (1933) 36 Bom. L.R. 290 In Vithoba Madhav v. Madhav Damodar the contract of resale was worded differently to the contract in the present case, and therefore the case is not an authority binding upon us; but it is argued that we should follow and apply the reasoning upon which the decision was based. The reasons are stated by MR. Justice Beaman in the following terms (p. 349): The sentiment of the agricultural classes in this country towards their land is well-known to every Judge of experience; and we can well understand that the creditor may have so far relented as to have given his debtor this locus penitentix after the lapse of ten years and so enable him to get back his family land. Founding the motive of the whole contract in this sentiment, it would be apparent that the vendee would have had no like inducement to allow any stranger to buy this land from him after the lapse of ten years at the price he had paid for it. There may have been a very good and sufficient reason why he should have made this concession to the original owner of the land and his descendants, meaning by that term his family, but we can see no reason whatever why the vendee should have bound himself in like manner to sell to anyone who had no previous connection with or interest in the land. That being my view of the true nature of the sale-deed of 1903 and the intention of the parties when the reservation clause was made, it follows that assignees outside the family could not enforce the contract specifically. This would then be a case of personal quality mentioned in Section 23 of the Specific Relief Act. MR. Justice Heaton also recognized that the decision turned on the terms of the particular contract with which the Court had to deal. But he says in the course of his judgment (p. 351):- In England a right of this kind would be assignable unless it were shown not to be so. But in India I think the sentiment of the people as regards ownership of land is altogether antagpnistic to the English idea of assignability. In the first instance, one would assume that where there was an agreement to sell back family land to a member of the family, that agreement was intended to subsist only for the benefit of the members of that family. The actual decision may have been justified by the terms of the particular contract in question; but I must confess that I have great difficulty in following the reasoning on which it was based. The principle enunciated by the learned Judges seems to come to this, that the agricultural classes in India have a sentimental regard for their land, that the Court will take judicial notice of such sentiment and will assume it to exist without any evidence and notwithstanding the fact that the particular agriculturist concerned has shown a desire to sell his land to a stranger, that this sentimental regard is a persona] quality of an agriculturist within Section 23 of the Specific Relief Act, and accordingly a contract to resell land to an agriculturist must be construed differently to a contract to resell land to anyone else, in the former case the presumption being that the contract is intended to be personal, whereas in the latter case the presumption is that it is assignable. If any such rule as that is to be enacted, it should be by the Legislature and not by the Courts. It is obvious that without definitions there would be difficulty in working such a rule; who is to be an agriculturist within the meaning of the rule ? and what land is to be affected by it: is it to be only ancestral land, or is it to include self-acquired property ? Moreover, the learned Judges do not seem to have appreciated that the benefit which they sought to confer on the grantor of the option by restricting its exercise to the original grantee and his family is largely illusory, because, if the grantee desired to sell the land to a stranger, he need only exercise the option himself, and the next day sell the land to the stranger. In the particular case, with which we have to deal, the period of the option has not yet expired. If MR. Justice Lokur's view that the option could not be assigned to the plaintiff is right, there is nothing to prevent defendant No.2 from exercising the option himself, paying Rs. 600 under it to defendant No.1, and then selling the land to the plaintiff for Rs. 1,000, in which case precisely the same result would be arrived at as if the option were assignable.