Asim Ali V. Badaruddin @ Suruj Mia and Ors 44 DLR (HCD) 1994 96

 Fact in Brief

The opposite parties 1-5 as plaintiff instated a title suit for specific performance of a contract alleging that the suit land with an area of .27 acre belonging to Musim Ali Proforma Defendant no.3 who sold the same to the petitioner no.1. The petitioners executed and registered a kabala of reconveyance in favor of the said vendor Musim Ali.

The case of the Plaintiff was that they purchased by a registered deed dated 28.3.1975 the right of repurchase from the said Musim Ali and accordingly asked the defendant no. 1 and 2 to execute and register the necessary deed of reconveyance of land in their favor . The defendant no. 2 did the same for half of the lands for a consideration of tk. 450 but the defendant no. 1 refused to do so.

Hence the suit for specific performance of contract was filed by the plaintiff against Asim Ali defendant no.1 and ors.

Issues

Whether the right of repurchase can be transferred can be transferred or not.

Whether the right can be assigned to any 3rd party.

Whether the plaintiffs have any right, title, and interest in the suit land.

Are the plaintiffs entitled to get a decree as prayed for?

Rule of Laws

Section 6, 10, 11, and 40 of the Transfer of Property Act, 1882.

Cases Citation

Ratesh Chandra Mridhra v. Hara Krishana GOldar and ors 15DLR 634

Devi Dayal v. Ghasita and ors AIR 1929 ALL 668

H and Febric Ltd. V. Mallick Textile and ors 1985 BLD 271 

Ram Chandra Das v. Md. Khalilur Rahman 37 DLR 21  

Application to the fact

The plaintiff claimed the right of repurchase which was under the authority of only Musim Ali, the pro-defendant no.3. But the pro-defendant no.1 refused and alleged that the ekrar right is only assigned to the vendor not to any 3rd party.

According to section-6 of the Transfer of property Act, 1882 –

“An interest in property restrained in its enjoyment to the owner personally cannot be transferred by him.”

As the plaintiff claimed the right of reconveyance assigned to only defendant no.3, it was upheld in supporting the case of Ratesh Chandra Mridhra v. Hara Krishana GOldar and ors that benefit under a contract could be assigned unless performance depends upon something personal.

In the case of Ughandi Mudali v. Regavachari where it has been observed that the right conferred by agreement was personal and not transferrable.

However the outsiders are not privilege to the agreement and they cannot enforce any right of repurchase through the ekrarnama.

In application of s-10 and 11 of the TP Act, 1882 it appears that the condition and limitation restraining alienation by the transferee or any person claiming under him must be absolute one.

In the instant case, the transfer of the suit property by a registered deed by the vendor the defendant no.3 in favor of no.1 and 2 was with an obligation which has been created by the defendant no. 1 and 2 in favor of the pro-defendant no.3. It cannot be said that the transferees had acquired absolute interest in the suit property by the purchaser.

In the said case, an obligation was created by the ekrarnama and annexed to the ownership of property under s-40 of this Act and that is why the interest created by the transaction cannot be said to be absolute one under s-11 of the Act of 1882.

Decision

The HCD held that the deeds of purchase by the plaintiffs are illegal and void as the pro-defendant no.3 as well as no.2 acted contrary to the provision of the ekrarnama which is binding upon them.

Conclusion

When one person or vendor or transferor is entitled to the right of reconveyance this right is only reserved for him and cannot be transferred by any 3rd person who is entitled that right.