LOKHNATH KHOUND Vs. GUNARAM KALITA

JUDGEMENT

(1.) A plot of land measuring 2(two) bighas covered by dag No.331 of Patta No. 55 of Barunguri Kisamat, Mouza-Jiria, in the district of Nowgong is the subject matter of the present proceeding. The land, admittedly, initially belonged to the plaintiff Gunaram Kalita. Being in dire need of money, he wanted to mortgage the land to Hatem Ali, but Hatem Ali could not advance any money on mortgages he insisted on sales which request was complied with as Gunaram must have money to take care of his dire need. Accordingly, a registered sale deed was executed on 14-11-70 and on the same day a registered ekrarnama was gone into covenanting that Hatem would reconvey the land to Gunaram if the consideration, which was fixed at Rs.1,200/- would be repaid within five years. The plaintiffs case is that he made repeated verbal demands on Hatem to comply with the terms of ekrarnarna and issued registered notice also but to no avail. Not only this, to the dismay of the plaintiff he came to know subsequently that Hatem had transferred the land to defendant 2 Loknath Khound, who is the appellant in this case. This sale was for a sum of Rs. 2000/- and was on 14-11-73. The plaintiff therefore, having no alternative filed a suit for specific performance of the agreement,which was dismissed by the learned trial Court only on the ground that sale to Loknath by Hatem was with the concurrence of the plaintiff. So, defendant 2 was regarded as bona fide purchaser without notice of the ekrarnama. On appeal being preferred, it has been held by the learned District Judge that the plaintiff had no part to play in the transaction gone into between defendant No.1 Hatem Ali and Loknath Khound, defendant No.2. The learned Court below did not accept the case of defendant 2 that he had no knowledge about the agreement of defendant 1 with the plaintiff. To the question of waiver raised by the appellant, the learned District Judge negatived the same by stating that even if the plaintiff was present at the time of transaction of sale between defendants 1 and 2, the same would not amount to waiver.

(2.) Defendant 2 has appealed to this Court and the appeal was admitted on two substantial questions of law :

(3.) Let these two questions of law the first -answered. In so far as the first question is concerned, Shri Sarma has relied on two decisions of Allahabad High Court. The first is Mahram Das v. Ajudhia, (1886) ILR 8 All 452. The Court has observed in this decision that in such a case a deed of sale and of the ekrarnama must be regarded as constituting on transaction, that is they must be read together to find out the nature of the transaction entered into between the parties. There is no dispute to this propositions. A reference to the terms of the transaction gone into between the parties in that case shows that it was provided that the purchaser would reconvey the land to the seller and never to others. This was regarded as contrary to Ss.10 and 11 of the T.P. Act as it absolutely restrained the transferee from parting with or disposing of his interest in the property. A reference to the present agreement shows that by the terms of Ext.1, Hatem Ali was not absolutely restrained from transferring the land to anybody else he chose to do so, and that the ekrarnama only states that if within the period of five years, the plaintiff offers the sum of Rs.1,200/-, the land would be reconveyed to him. The terms of the present ekrarnama are thus different from those which was dealt by the Allahabad High Court in Mahram. Similar in the position, so far as asghari Begum v.Maula Baksh, AIR 1929 All 381, where a deed of transfer at first absolutely transferred the property to another, but by subsequent clause made it subject to the condition that the transferee would not part with or dispose of his interest to any person other than the transferor. Such a condition was held to be void being hit by S.10 of the T.P.Act. In the present ekrarnama, we do not find any such condition. It permits the transferee to part with or dispose of his interest in the land to any other person but not within the period of five ears. Ext.I, therefore, cannot be said to be hit by S.10 and 11 of the T.P.Act. In so far as S.14, which has also been mentioned in question No.1 is concerned, it may be stated that the same is not pressed before me by Shri Sarma.