VITHOBA MADHAV SHANBHOG Vs. MADHAV DAMODAR SHANBHOG

JUDGEMENT

(1.) In 1903 Gidd Hegde being indebted to Vaikuntha, and Vaikuntha having obtained a decree which Gidd Hegde was unable to satisfy, Gidd Hegde sold the land in dispute to the decree- holder on condition that after the lapse of ten years Gidd Hegde or his descendants should have the right to re-purchase it within two years for the same price for which the land was sold. After the death of Gidd Hegde his son appears to have been his only descendant and on his death his mother took as heir. She then proceeded to sell the right, reserved to Gidd Hegde and his descendants in the sale-deed of 1903, to one Manj Isra, who in turn seems to have sold half to the plaintiff No. 1 and the other half to the plaintiff No. 2.

(2.) The question for our determination is whether on the terms of the sale-deed of 1903 and in the light of the facts and circumstances then existing, the intention of the parties was that the right reserved was to be a personal right to Gidd Hegde and his descendants or a right which he might assign to any other person. The assignability of interests in land arising ,out of contracts has been so long recognised in England that no difficulty ever appears to be felt now in reconciling it with the fundamental doctrine of all contracts, namely, privity between the contracting parties. This difficulty becomes more apparent and often has been felt in England where contracts affecting moveable property, such as the supply of chalk in Tolhurst v. Associated Portland Cement Manufacturers (1900) (1903) A.C. 414 or the supply of eggs in Kemp v. Baerselman (1906) 2 K.B. 604, have been assigned. But running through the whole of this law, whether it relates to immoveable or to moveable property, where the rights originate in contract, we think it safe to say that the principle is that Courts must decide whether it was the intention of the promisor to make the contract personal to the promisee. In India even the general principle now so well settled in England is much complicated by the provisions of the Transfer of Property Act. That is the Statute which governs Courts in this country and it becomes extremely difficult under its provisions to say that a right, if it be a right, of the kind in suit here can be transferred at all. It falls outside the definition of choses in action, for these are. confined exclusively to moveables. Nor can it very easily be brought within the terms of Section 6, for correctly analysed it amounts to no more than a contract on the part of Vaikuntha to sell the land to Gidd Hegde and his descendants after the lapse of a certain time at a certain price, and such mere contract or agreement for the sale of land creates no interest in the land as expressly declared in Section 54. It is difficult, therefore, to say what form of property could be transferred in a case of this sort within the meaning and language of the Transfer of Property Act. Waiving such difficulties, however, and confining ourselves to what we conceive the true ground of all cases of this kind, we are very clear, although in this we differ from the lower Courts, that the intention of the parties was that Gidd Hegde and his descendants and they alone should be given the privilege of repurchasing this land after the lapse of ten years and within the limited period of twelve years at the same price at which it was originally sold.

(3.) We need not pause upon the construction of the term "descendants" favoured by the Courts below. It may be that for the purposes of enforcing the intended rights under this sale- deed of 1903 a mother within the family might by stretch of language have been included in the term "descendants." That is, however, a point of minor importance.