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Second Appeal No. 440 of 1953 decided on 22nd August 1957.

Benefit of contract‑Assignable subject to implied or express contrary intention‑Personal contract cannot be assigned. As a general rule, the benefits of a contract are assignable subject to any contrary intention exhibited in the contract or the document itself.

A contrary intention may either be express or arise by necessary implication. One illustration of the cases in which such a contrary intention is implied 'is to be found in what are commonly known as. personal contracts " or contracts depending upon the learning, skill, solvency or any personal qualification of the assignor' or the party to the contract or from whom the benefit of the contract are claimed under the particular agreement.

The mere absence of the phrase" heirs, assignees, adminis trators " in a contract is not sufficient to raise a. presumption of an implication as to the contrary intention against its assignability.

Sakalaguna Nayudu and another v. Chinna Munuswami Nayakar L R 55 I A 243 and Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa Bhatkar and another I L R 1940 Bom. 674 followed.

Vithoba Madhav v. Madhav Damodar I L R 42 Bom. 344 and Gobardhan v. Raghubir Singh A I R 1930 All. 101 not followed.

This appeal is against the judgment and decree of the District Judge of Khulna in Title Appeal No. 130 of 1944 affirming those of the Munsif, 3rd Court, Satkhira, in Title Suit No. 82 of 1943.

The plaintiffs, who are, the appellants before me, instituted this suit for redemption of certain lands or in the alternative, for specific performance of a contract for reconveyance of the land. Their case was that plaintiffs Nos. 1 and 2 along with pro forma defendants Nos. 2 and 3, who were the original landlords of the said land holding the same in equal shares, had on the 18th of Jaistha, 1344 B. S., corresponding to the 1st of June 1937, granted a lease of the same to defendant No. 1 by a registered patta and on the same date defendant No. 1 had also executed a registered ekrarnamah to reconvey the lands leased out to the lessor if the salami money amounting to Rs.499 was repaid before the expiry of the year 1352 B. S., corresponding to 1945 46 A. D.

Thereafter it appears that in Sravan, 1345 B. S., corresponding to July‑August, 1938, defendants Nos. 2 and 3 sold their eight anna share in the leased‑out properties together with the right of re‑purchase, acquired under the ekrarnamah above mentioned to plaintiff No. 4 herein and in Jaistha, 1348 B. S., corresponding to June‑July 1948, plaintiffs Nos. 1 and 2 also sold their eight‑anna share to plaintiff No. 3 herein.

It may also be mentioned here that at the time of the execution of the lease and the ekrarnamah mentioned above pro forma defendants Nos. 2 and 3 were Minors.

The plaintiffs allege that the salami money fixed by the ekrarnamah, Ext. A, was duly tendered during the stipulated time to defendant No. 1, who has since died and whose heirs and legal representatives have since been substituted in his place and stead. The said defendant, however, refused to reconvey the land. Hence the suit.

The said defendant No. 1 duly contested the suit and disputed the right of the plaintiffs to claim the re‑conveyance on various grounds ; firstly, it was denied that the transaction amounted to a mortgage ; secondly, it was contended that even other wise the ekrarnamah could not be enforced since it was never acted upon and, thirdly, that, in any event, the assignee of the parties to the ekrarnamah had no right to enforce a specific performance thereof, as the right was personal to the parties to the said document.

It appears that the suit was originally dismissed by the learned Munsif on the 3rd of May 1948,but, on appeal, the then learned District Judge of Khulna allowed the appeal and decreed the plaintiffs suit by granting specific performance of the contract for reconveyance. As against the said decision of the District Judge, an appeal was preferred to this Court, being S. A., 1364 of 1945 and, in this appeal, this Court on the 16th of April 1951, held that the learned District Judge had not considered all the relevant questions arising in this case and, therefore, the case must go back on remand for rehearing. It has since been re‑heard by the learned District Judge of Khulna who has by his judgment of the 18th of April 1952, affirmed the decision of the Munsif and dismissed the suit in toto.

This decision of the learned District Judge is based mainly on the following grounds: (1) that since defendants Nos. 2 and 3 were minors at the date of the execution of the lease and the ekrarnamah, the ekrarnamah was void to the extent of the shares of the said minors ; (2) that since there was no evidence as to what these specific shares of the said. minors were it could not be said as to what extent the transaction was void and, therefore, the plaintiffs could not cover any portion or any share in the said properties ; and (3) that, in any event, the plaintiffs could not enforce the specific performance of an agreement to reconvey, as such a right was not assignable, being a personal right and not a covenant running with the land.

On all other points, however, the learned District Judge held in favour of the plaintiffs and found that the ekrarnamah, Ext. A, was a genuine document and had been acted upon.

It is against this decision that the plaintiffs have now come up on appeal to this Court and it is on their behalf contended that the learned District Judge was wrong on both of the last two points upon which he had refused to grant specific performance of the contract for re‑conveyance.

With regard to the first contention that there was no. evidence as to what the specific shares of the parties were, my attention has been drawn to the kabalas. Exts. 1 and 1 (A) executed by defendants Nos. 2 and 3, and plaintiffs Nos. 1 and 2 in favour of plaintiffs Nos. 3 and 4 respectively, wherein it has been clearly specified that the grantors of the kabala have an eight‑anna share respectively in the properties in question. It is; therefore, clear that the specific shares were ascertainable and that there was sufficiently reliable documentary evidence to indicate what that share was. Indeed, there was no dispute with‑regard to these facts and the kabalas were admitted into evidence without any objection. The first point upon which the learned District Judge has refused the prayer of the plaintiffs is not, therefore, sustainable.

With regard to the second ground it is contended on behalf of the appellants that here also the learned District Judge has taken an erroneous view of the law in total disregard of the provisions of section 23, clause (b), of the Specific Relief Act, the material portion of which is as follows:‑ " Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by‑

(a) any party thereto ;

(b) the representative in interest, or the principal, of any party thereto : provided that, where the learning, skill .solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed."

Emphasis is laid upon the words " where the contract provides that his interest shall not be assigned ", and it is pointed out that the learned District Judge has erred in taking the view that such contracts are assignable only if they provide that the interest may be assigned. In support of this contention, strong reliance has been placed by the learned Advocate for the appellants, on the decision of their Lordships of the Judicial Committee in the case of Sakalaguna Nayudu and another v. Chinna Munuswami Nayakar (L R 55 I A 243), where their Lordships held that a contract for re‑conveyance was enforceable by the assignee of the vendor against the heirs of the purchaser and that it was not merely an offer incapable of assignment, until accepted by tender of price, but a completed contract. In that case also the contract for re‑conveyance was contained in a counter‑part document executed on the same date. In that case, however, it was not disputed that if the transaction amounted to a com pleted contract, then the benefit of that contract could be assigned. Hence, it is argued on behalf of the respondents that their Lordships did not directly have before them the question of the assignability of the contract.

The next case relied upon on behalf of the appellants is a decision of Sir John Beaumont, Chief Justice, and Sen, J., of the Bombay High Court in the case of Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa Bhatkar and another (I L R 1940 Bom. 674), where the learned Chief Justice, after reviewing all the earlier decisions of that Court, came to the view that both under the common law under section 23, clause (b), of the Specific Relief Act, an option to re‑purchase property is prima facie assignable, though it may be so worded as to show that it was to be personal to the grantee and not assignable. In coming to this view, their Lordships of the Bombay High Court considered that the earlier decisions in which a contrary view had been taken, were inconsistent with the decision of the Privy Council referred to above, for, in that decision of their Lordships of the Privy Council, the option to repurchase had, in fact, been assigned to the plaintiff and their Lordships confirmed the decision of the Madras High Court which held that the option was assignable. Chief Justice Beaumont, in these circumstances, took the view that that decision of their Lordships of the Privy Council "is inconsistent with the principle that there is some special rule applicable to options for re‑purchase given to members of the agricultural classes in India," which appears to have been the basis of decision in the earlier Bombay cases. It is significant that the learned Chief Justice concluded by saying that‑

"If parties desire that the exercise of an option to re purchase land is to be confined to the original grantee, or to him and his family, they must so provide in the document creating the option."

As against this, the learned advocate for the respondents has firstly relied upon the decisions referred to by the learned District Judge in his judgment namely, the cases of Vithoba Madhav v. Madhav Damodar (ILR Bom. 344=45 I A 734) and Gobardhan v. Raghubir Singh (AIR 1930 All. 101).

The reasoning s of the Bombay decision in the case of Vithoba Madhav v. Madhav Damodar were exhaustively considered by Chief Justice Beaumont in the case referred to earlier and found to be inconsistent with the decision of their Lordships of the Judicial Committee in the case of Sakalaguna Nayudu and another v. Chinna Munuswami Nayakar. I am respectfully in entire agree ment with the views expressed by Chief Justice Beaumont and, in my opinion, t4e decision in the case reported in I L R 42 Born. 344 can no longer be considered to be good law. As for the Allahabad case, although this case was decided after the decision of the Privy Council in 55 1 A 243, it does not appear that the attention of their Lordships of the Allahabad High Court was drawn to the said decision of the Privy Council, nor does this judgment contain any reason for the view taken by their Lordships that such a right is not a right which can run with the land, nor a right which can ensure to the benefit of the legal representatives of the vendor.

In my opinion, this view appears to be directly opposed also to the provisions of section 40 the Contract Act which reads as follows :‑

" Section 40 : If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it."

In my view, the above quoted provisions when read with the provisions of clause (b) of section 23 of the Specific Relief Act indicate that as a general rule the benefits of a contract are assignable subject to, any contrary intention exhibited in the contract or the document itself. This is the rule in England and it also appears to me to be the rule under the Contract Act and the Specific Relief Act. Such a contrary intention may, of course, either be express or arise by necessary implication. One illustration of the cases in which such a contrary intention is implied is to be found in what are commonly known as personal contracts' or contracts depending upon the learning, skill, solvency or any personal qualification of the assignor or the party to the contract or from whom the benefits of the contract are claimed under the particular agreement.

The learned Advocate for the respondents has drawn my attention to the language of the ekrarnamah wherein, he has pointed out, it has not been said that the heirs or successors in interest or assignees of the persons entitled to claim recon veyance, namely, the lessors, will also be entitled to that. Furthermore, my attention has also been drawn to a provision in the document to the effect that it is only upon the repayment of the salami money out of the nijtahbil of the lessors that they would be entitled to claim the reconveyance. It is sought from these words in the ekrarnamah, Exh. A, to spell out an intention that the right was not to be assignable. I regret I am unable to accept that contention, for, I can read nothing in the ekrarnamah, Exh. A, which has any personal element about it whatsoever, nor can I read into it any indication of any intention to make the benefits granted thereby unassignable. It contains no express prohibition against assignment. There is also nothing in the nature of the subject‑matter of the contract to make it a personal contract or to give rise to any necessary implication as to the contrary intention against its assignability. The mere absence of the phrase "heirs, assignees, administrators" is not, in my view, sufficient to raise a presumption of such an implication The general rule of assignability, therefore, which has been laid down in section 40 of the Contract Act and section 23 (b) of the Specific Relief Act has not been excluded in the present case. In‑ these circumstances, I am in agreement with the learned Advocate for the appellants that the learned District Judge of Khulna has erred on both the points. Firstly, he has failed to take into consideration the documentary evidence on the record which clearly provided the evidence which he sought of the quantum of the shares of the lessors in the case and, secondly, he has misinterpreted the law applicable to the case.

I, therefore, allow this appeal, set aside the judgment and decree of the learned District Judge and decree the suit to the extent of the 8‑anna share of plaintiffs Nos. 1 and 2. I do so because, in the appeal before me, it is not challenged that the decision of the Court below with regard to the voidability of the contract for reconveyance in respect of the minors is incorrect. There will, however, be no order as to costs in this appeal.

Z.A.S.

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