DHARANIDHAR MUKHERJI Vs. RAKHAL DAS BHATTACHARJEE

JUDGEMENT

(1.) THIS is an appeal by the defendant No. 1 against the judgment of the Subordinate Judge of Birbhum, dated the 2nd March 1914, reversing the decision of the Munsif of Bolpur. The suit was brought for specific performance of an option to re-sell certain property, which had been sold to the father of the defendant No. 1. The option, apparently, so far as one can gather, was unlimited as to time and no question has been raised in either of the Courts below nor in the grounds of appeal to this Court as to the option being a perpetuity. We must take the case as presented in the Courts below and in the grounds of appeal to this Court. An option by a purchaser to re-sell the land to the vendor on certain terms and conditions is a perfectly valid contract and there can be specific performance of such contract, as has been directed in many actions brought to enforce such options. Nobody has ever doubted that an option to re-sell the land to the vendor is a perfectly good contract which, if the conditions are complied with strictly, the purchaser is bound to fulfil. In this case, there is a finding that there was an option; but the Judge then applied himself wrongly to the law because he said that, taking into consideration the fact that there was a promise of re-conveyance on payment of the consideration money, the transaction really amounted to a mortgage and he decreed redemption accordingly. Strictly speaking, that is not the correct form of the decree. There ought to have been a decree for specific performance on exactly the same terms as the Judge has decreed redemption. Of course, the point is a technical one and the proper order ought to be to direct specific performance of the contract. The decree for redemption passed in this case leaves the parties in exactly the same position as if there had been a decree for specific performance. That being so, it would be useless to interfere with the decree of the lower Appellate Court and convert it into one for specific performance.

(2.) THE appeal fails and must be dismissed with costs.