1916 (2) TMI 3 - HC - Indian Laws

Summary

Issues Involved:
1. Consideration for the karar.
2. Assignability of the option under the karar.
3. Enforceability of the contract against the original covenantor.
4. Transmission of interest under Hindu Law.
5. Nature of the plaintiff's right in Second Appeal No. 843.

Detailed Analysis:

Consideration for the Karar
The appellants contended that there was no consideration for the karar giving the option of repurchase to Thekkedath Nair. They argued that any objections to the court sale were procedural irregularities and that Ananthanarayana Iyer could have obtained another sale without such irregularities. The court found this contention unarguable, stating that Ananthanarayana Iyer bona fide believed the objections were serious enough to warrant a compromise. The withdrawal of Thekkedath Nair's objections constituted ample consideration for the karar, making it binding on the family.

Assignability of the Option under the Karar
The appellant argued that the option under the karar was not capable of being assigned in law, as it did not create any interest in the property and was not an actionable claim. The court disagreed, stating that an executory contract for the conveyance of land is not a mere right to sue. The court held that all contracts capable of specific performance could be assigned except those explicitly prohibited. Therefore, the plaintiff, as an assignee, could enforce the rights given by the karar.

Enforceability of the Contract Against the Original Covenanter
The second contention was that the contract could only be enforced against the original covenantor. The court found this untenable, referencing the Specific Relief Act, which allows specific performance of a contract against any person claiming under a party by a title arising subsequently to the contract. The court held that the first defendant fulfilled this character and could be held liable under the contract.

Transmission of Interest Under Hindu Law
The appellant contended that under Hindu Law, an executory contract entered into by one co-parcener could not be enforced against the survivors. The court found no authority to support this proposition and saw no reason to draw such a distinction. The court held that if the contract was beneficial or necessary, it could be enforced against the surviving co-parceners.

Nature of the Plaintiff's Right in Second Appeal No. 843
The plaintiff in Second Appeal No. 843 had a different position. Thekkedath Nair assigned his interest to his sister Ithukutty, who then hypothecated it to the plaintiff. The court found that a mere right to specific performance could not be the subject of a mortgage. The court concluded that the karar did not convey any present right in the property to Thekkedath Nair, and therefore, Ithukutty did not acquire anything she could validly hypothecate. Consequently, the plaintiff in this appeal acquired nothing on which he could sue, leading to the dismissal of the second appeal with costs.

Separate Judgment by T.V. Seshagiri Iyer, J.
T.V. Seshagiri Iyer, J., agreed with the primary judgment and added that there was no justification in Hindu Law to differentiate between the liability of a Hindu co-parcener regarding executory and executed contracts. The enforceability of a contract must be traced back to the date of the agreement. The learned judge also dismissed the contention that specific performance could not be enforced against surviving co-parceners if the promisor was dead, stating that such contracts are binding if they are for purposes binding on the family.

In conclusion, the court upheld the enforceability of the karar and dismissed the second appeals, except for Second Appeal No. 843, which was dismissed due to the lack of a valid hypothecation.