JAMAHIR SAO Vs. SATRUGHNA SONAR

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that on the 3rd October, 1953, there was an agreement executed by the defendants In favour of the plaintiffs for sale of the disputed lands to the plaintiffs for a sum of Rs. 2999/-. It was alleged that a sum of Rs. 500/- wag Paid oh the date of the agreement and the deed! of sale was to be executed by the defendants within six months from the date of the agreement. It was also agreed between the parties that the plaintiff would pay a sum of Rs. 648/- in cash on the date the sale was registered, and! the rest of the consideration was to be paid by the plaintiffs towards the liquidation of a previous usufructuary mortgage with regard to the disputed lands. The plaintiffs brought the suit for specific performance of the contract. The suit was contested by the defendants on the ground that there was a clause for reconveyance in the contract of sale and the defendants had also agreed to repay the sum of Rs. 500/- to the plaintiffs. The defendants also asserted that the plaintiffs had not redeem the usufructuary mortgage and in view of the clause for reconveyance the plaintiffs were not entitled to a decree for specific performance of the contract of sale. Upon these rival contentions of the parties the learned Munsif held that the laintiffs were not entitled to a decree for specific performance, but they were entitled to a refund of the amount of Rs. 500/- given to the defendants. The learned Munsif accordingly granted a decree to the plaintiffs for recovery of a sum of Rs. 500/- with proportionate costs. The plaintiffs took the matter in appeal to the Subordinate Judge of Dhanbad, who reversed the decree of the learned Munsif and granted the plaintiffs a decree for specific performance of the contract of sale of the disputed properties. The view taken by the learned Subordinate Judge was that the clause for reconveyance in the contract of sale was not really an agreement to re-sell but it was in the nature of "a contract to make a contract" and, therefore, not enforceable in law.

(2.) In support of this appeal learned Counsel for the defendant appellants made the submission that the view taken by the lower appellate court is erroneous and on a proper construction of the contract for sale dated the 3rd October, 1953, it ought to be held that there was a completed contract for re-sale of the property within a period of three years from the 3rd October, 1953, and the learned Subordinate Judge was erroneous in holding that there was "a contract to make a contract". In our opinion the argument put forward by learned counsel for the appellants is well founded and must be accepted as correct. The agreement dated the 3rd October, 1953, which is exhibit 2, has been officially translated, and the relevant portion of this document is to the following effect:--

(3.) If this view is correct, it follows that the learned Subordinate Judge was erroneous in granting the plaintiffs a decree for specific performance. In our view the present case comes within the ambit of Section 21, Clause (d) of the Specific Relief Act, which states as follows:-- "21. The following contracts cannot be specifically enforced:-- ***** (d) a contract which is in its nature revocable" , The illustration to this clause of the section is as follows:--