Chandra Kanta Mistri V. Sailendra Nath Sikdar 49 DLR (HCD) 1997 514

Facts in Short

The opposite parties Sailendra Nath Sikder and Parimal Sikder as plaintiff instituted title suit against the petitioner as defendant stating that the plaintiff’s father Sarat Chandra Sikder by registered sale deed dated 13-5-1959 transferred the suit land to the defendant. Subsequently the vendee Chandra Kanta Mistry executed the registered deed of reconveyance 1-6-1969 undertaking to reconvey to the suit land to the vendor if the consideration money to be paid within 30 Chaitra of every year. After the death of the vendor two of his son filed a suit of the specific performance of the contract for reconveyance of the suit land. The learned trial court decreed the suit on 30-7-1980.

The defendant thereafter filed an appeal before the learned district judge Barisal. It dismissed the said appeal on 26-4-1984.

Being aggrieved by the judgment, the defendant petitioner moved this application in revision and obtained the present rule.

Issues 

Whether the right of repurchase is assignable to the legal heirs or not.

Whether the covenant is hit by the rule against perpetuity.

Rule of Law

        Section-14 of the Transfer of Property Act, 1882 deals with the rule against perpetuity.

Cases referred

Shaukatali v. Shamsun Bibi and ors 27 DLR (AD) 59

Sakalagura Nayudu v. Chinna Monuswami Nayaker

 

Application to the fact

The defendant Chandra Kanta Mistri refused to reconvey the suit land to the plaintiffs. It was contended that the deed of reconveyance is a personal contract between the plaintiffs’ farther and the appellant. Successor in interest of vendor cannot enforce the contract of reconveyance of the suit land.

It has been stated in the deed of reconveyance between the vendor and the vendee that if the consideration money is returned within 30 Chatra of any year the suit land would be reconveyed. There is nothing to show in the deed that the deed of agreement be enforced by the vendor only and not by his heirs.

In the case of Sakalagura Nayudu v. Chinna Monuswami Nayaker where it was held that both under the common law and s-23(b) of the SR Act, an option to repurchase property prima facie assignable though it may be so worded as to show that it was to be personal to the grantee and not assignable.

It was further contended that the covenant was not personal and it could be enforced by the heirs of the vendors. It cannot be denied that the covenant is hit by the rule against perpetuity as much as known specific year has been mentioned in which repayment of the consideration is not to be made to the transferee. 

Therefore the contract of reconveyance cannot be held to be valid in view of s-14 of the Act of 1882.

Decision

It was held that the contract of reconveyance is not valid. The trail courts have committed an error of law occasioning failure of justice.

Conclusion

The plaintiffs are entitled to the right of recconveyance but it goes against the rule of perpetuity. On this ground, the petitioner was awarded remedy on his revision to the High Court Division.