TMI Blog1916 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to have the whole or such part of the lands as he paid for reconveyed to him. During the currency of the ten years fixed by the karar, Thekkedath Nair assigned his interest under the karar to the various plaintiffs in Second Appeals Nos. 1509, 1510, 1511 of 1914; and still within ten years the plaintiffs filed these three suits asking for specific performance of the karar of the 4th July 1901 as assignees of Thekkedath Nair's rights under that instrument. The position of the plaintiff in Second Appeal No 843 is rather more complicated, and will be dealt with separately in relation to that suit. But most of the issues are common to all the four suits. The defendants are (1) Venkateawara Iyer, who is the undivided brother of Ananthanarayana Iyer, who died before the institution of the suit, and (2) Thekkedath Nair, who is merely a formal defendant. The learned Subordinate Judge has given decrees to the plaintiffs in Second Appeals Nos. 1509, 1510 and 1511, from which the 1st defendant appeals to this Court. 2. Two points taken by the appellants may be disposed of at once. In the first place, it was contended that there was no consideration for the karar giving the opt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case, it would have been necessary to decide this question and to consider whether we are prepared to act upon the observations of Jenkins, C.J., in that case. In my opinion the question does not arise in this case as the suits are brought not by Thekkedath Nair but by his assignees, who undoubtedly took the assignments for valuable consideration and in good faith. 3. There remain three further contentions of the appellant which raise more serious difficulties. In the first place, it is contended that the plaintiff's suit will not lie inasmuch as the option under the karar was not capable of being assigned in law; secondly, it is contended that even if the assignee has a right to sue, that right is only exercisable against the original covenantor; thirdly, that by Hindu Law there was no transmission of interest from Ananthanarayana Iyer to the 1st defendant. 4. The first contention is put in this way. The Transfer of Property Act provides, of course, for the transfer of immoveable property and Chapter VIII of the Act (section 130) provides for the transfer of actionable claims. An executory contract for the future sale of immoveable property does not by Section 54 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they come within the terms of the Transfer of Property Act. I think that this is taking too narrow a view of the assign-ability of contracts in this country. By Section 23(b) of the Specific Relief Act specific performance of a contract may be obtained by the representative-in-interest or the principal of any party thereto, provided that where the learning, skill, solvency or any personal quality o 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. This seems to me to contemplate clearly that all contracts capable of specific performance may be assigned except the prohibited class. Although the words used are representative-in-interest, the subsequent use of the verb assign in the section points conclusively to an assignee being covered by the words representative-in-interest. I, therefore, hold that there is nothing in the position of the plaintiff as assignee to prevent his enforcing the rights given by the karar of 1901. 5. The second contention that the contract can only be enforced agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to take back all the properties; that Thekkedath Nair covenanted to provide funds for any litigation necessary for the preservation of the property though such litigation was to be conducted by Ananthanarayana Iyer; and lastly that it was provided that though Ananthanarayana Iyer should have the power to grant leases they should not exceed that ten years within which Takkedath Nair's rights were kept alive. These are doubtless provisions which point very strongly to the construction of the karar as a mortgage. But, in my opinion, they cannot outweigh the fact that the primary object of the deed and the object effected by its very first operative clause was to confirm the sale to and ownership of Ananthanarayana Aiyar. The cadnial feature of an Indian mortgage is that the mortgagor and no one else is the owner of the property, and a document which by its express terms validates and confirms the ownership of a person other than the suggested mortgagor cannot, in my opinion, be treated as a mortgage. I am, therefore, of opinion that the karar did not convey any present right in the property to Thekkadath Nair, and accordingly that Ithukutty did not acquire by her assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in this country. 9. Another contention was that the promisee is not entitled to enforce specific performance against the surviving members of a coparcenary, if the promisor is dead. All that Mr. Subramania Sastriar was able to say in support of this position is that there are no reported cases on this point. The fact that he co-parceners take by survivorship is not a ground for holding that the agreement died with the promisor's death. If an executed contract of a father or the managing member is binding on the son or the other members under certain circumstances, an executory contract is also binding. The difference between the position of an heir and the of a surviving co-parcener would be that, in the latter case, the contract would have to be shown to be for purposes binding on the family. 10. The objection that the defendant was sued as if he were the owner and not as manager, cannot prevail. At best it may necessitate an amendment of the description of the party. But in this case, the Courts below proceeded on the footing that the suit was against the manager, and there is no ground for directing, an amendment even. 11. As regards Second Appeal No. 843 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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