INDIRA DEVIversusVEENA GUPTA & ORS.

372               [2023] 10
               SUPREME      S.C.R.REPORTS
                         COURT     372 : 2023 INSC 593
                                                   [2023] 10 S.C.R.


A                                 INDIRA DEVI
                                         v.
                            VEENA GUPTA & ORS.
                         (Civil Appeal No. 9833 of 2014)
B                                 JULY 04, 2023
               [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
             Deeds and Documents – Sale deed – Whether the vendor can
      assign the right contained in a sale deed to get the property registered
      back or the right being personal cannot be assigned – Held: No
C
      implied prohibition of transfer or assignment can be inferred in a
      document – Condition of right to repurchase in sale deed will not
      be personal to the vendor unless the terms in the documents
      specifically state so – Such a right can always be assigned and the
      contract containing such condition shall be enforceable – The only
D     exception being that such a right should not be personal in nature
      – In the present case, there was no term in the conditional Sale
      Deed which debarred its assignment to any other person – The
      clause only mentioned regarding right of repurchase – The option
      was given to the vendors with the obligations on the vendee – No
      error in the judgment of the High Court – Contract.
E
            Dismissing the appeal, the Court
            HELD: The condition of right to repurchase in sale deed
      will not be personal to the vendor unless the terms in the
      documents specifically state so. Such a right can always be
F     assigned and the contract containing such condition shall be
      enforceable. The only exception being that such a right should
      not be personal in nature. The assignment of obligations in a
      document is not possible without the consent of the other party.
      No implied prohibition of transfer or assignment can be inferred
      in a document. The benefit of contract is assignable in cases where
G     it does not make any difference to the person on whom the
      obligations lies, to which of two persons he is to discharge. If the
      facts of the case in hand are considered, there is no term in the
      conditional Sale Deed which debars its assignment to any other
      person. The clause only mentions regarding right of repurchase.
H     The option is given to the vendors with the obligations on the
                                        372
            INDIRA DEVI v. VEENA GUPTA & ORS.                             373


vendee. The right to repurchase in the present case has been              A
assigned by KLS (now deceased) in favour of respondent no.1
who is none else than his daughter-in-law to whom other
properties have also been gifted. Even the argument raised by
counsel for the appellant that such an assignment of a right cannot
be treated as a gift as consideration money is involved, is also
                                                                          B
noticed and rejected for the reason that the executor of the Gift
Deed i.e KLS (now deceased) had transferred his right to
repurchase the property in favour of respondent no.1. That right
could always be assigned by him with whatever conditions
attached to it. Further in the suit filed, he was also a plaintiff, who
died later. No error in the judgment of the High Court. [Paras            C
21-24][385-G-H; 386-A-E]
      Bhoju Mandal and Ors. vs. Debnath Bhagat and Ors.
      1963 Supp (2) SCR 82 – held inapplicable.
      T.M. Balakrishna Mudaliar vs. M. Satyanarayana Rao
      and Ors. (1993) 2 SCC 740 : [1993] 2 SCR 888; Shyam                 D
      Singh vs. Daryao Singh (dead) by LRs and Ors (2003)
      12 SCC 160 : [2003] 5 Suppl. SCR 784 – relied on.
      Kapilaben and Ors. vs. Ashok Kumar Jayantilal Sheth,
      through POA Gopal Bhai Madhusudan Patel and Ors
      (2020) 20 SCC 648 – referred to.                                    E

      Sakalaguna Nayudu v. Chinna Munuswami Naykar
      AIR 1928 PC 174 – referred to.
                       Case Law Reference
[1963] Supp (2) SCR 82          held inapplicable        Para 6           F
(2020) 20 SCC 648               referred to              Para 6
[1993] 2 SCR 888                relied on                Para 8
[2003] 5 Suppl. SCR 784         relied on                Para 8
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9833                G
of 2014.
      From the Judgment and Order dated 26.09.2013 of the High Court
of Patna in SA No.123 of 2000.
                                                                          H
374            SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A          Sanjay R. Hegde, Sr. Adv., Farrukh Rasheed, Ashish Sharma,
      Abu Bakr Sabbaq, Mahesh Kumar, Advs. for the Appellant.
            Yadav Narender Singh, Rahul Shukla, Ms. Eshita Baruah, Ms.
      Sayantani Basak, Ms. Kanchan Dahiya, Ms. Bachita B. Shukla, Rahul
      Pratap, Advs. for the Respondents.
B
            The Judgment of the Court was delivered by
            RAJESH BINDAL, J.
            1.The appellant herein has challenged the order dated September
      26, 2013 passed by the High Court of Judicature at Patna in Second
C     Appeal No. 123 of 2000.
             2.The facts of the case available on record are being noticed
      here. Kaleshwar Prasad Singh was inducted as a tenant in the property
      in question by late Kishori Lal Sahu who was the exclusive owner thereof.
      He along with his son executed a conditional sale deed dated 5.8.1977 in
D     favour of Indira Devi d/o Kaleshwar Prasad Singh. It was mentioned in
      the sale deed that vendors were in dire need of money, hence, with the
      consent of family members, conditional sale deed was being executed in
      favour of the vendee for a total sale consideration of 5000/-. The
      condition in sale deed was that in case the vendors return the full
      consideration amount to the vendee by July, 1984, the vendee would
E
      return the property by means of a registered sale deed at the cost of the
      vendors. In case, the vendors fail to pay the consideration money within
      the stipulated time, the vendee will become exclusive owner of the
      property. Till then the vendee would not deal with the property in any
      manner whatsoever.
F           3.Late Kishori Lal Sahu executed a registered gift deed dated
      14.02.1983 in favour of his daughter-in-law, Veena Gupta w/o Gopal
      Prasad. The description of the property was detailed out in the Gift
      Deed, wherein it was stated that the executant was old and the beneficiary
      was taking care of him, hence the properties are being gifted to her.
G     Number of properties were gifted. It was mentioned therein that the
      property as mentioned at column no. 5 therein was transferred to Indira
      Devi by way of registered sale deed dated 5.8.1977, which can be
      purchased back by Veena Gupta from Indira Devi.
           4.The vendors were ready and willing to return 5000/- to the
      vendee to get the sale deed registered back in their name but the vendee
H
             INDIRA DEVI v. VEENA GUPTA & ORS.                                  375
                     [RAJESH BINDAL, J.]

was not agreeing to the same. The civil suit was filed by the respondent        A
no.1 along with Kishori Lal Sahu (now deceased) in 1983. The prayer in
the suit was for a direction to the appellant to accept            5000/- as
consideration money and execute sale deed in favour of respondent no.1
in respect of the house as mentioned in the suit. On failure, decree be
passed directing appellant to register the sale deed in favour of the
                                                                                B
respondent no.1, the first plaintiff and as a consequence, the plaintiffs be
put in possession of the property in question. In the alternative, the prayer
was that there is a relationship of landlord and tenant between Kishori
Lal Sahu (non deceased), the second plaintiff and Kaleshwar Prasad
Singh, the first defendant. A decree of eviction be passed in favour of
the plaintiffs on the ground of personal necessity and non payment of           C
rent and the possession be got delivered. The Trial Court vide judgment
dated 27.9.1986 dismissed the suit. The judgment and decree of the
Trial Court was upheld by the lower appellate court vide judgment and
order dated 27.1.2000. In second appeal filed by the respondents, the
judgments of the courts below were reversed by the High Court vide
                                                                                D
judgment dated 26.09.2013. The High Court framed the following
substantial questions of law:
      “(i) Whether the courts below committed error in dismissing the
      suit of the plaintiff on wrong approach and on consideration of an
      issue which was not material for the purpose of adjudication of
      the suit?                                                                 E

      (ii) Whether the courts below committed error in not considering
      the main issues involved in the suit regarding character and
      construction in respect of the deed impugned?
      (iii) Whether the courts below committed error in not considering         F
      the issue of merger of tenancy to the ownership as is relevant in
      the deed of sale?”
      ARGUMENTS OF THE APPELLANTS
       5.The argument raised by the learned counsel for the appellant
was that late Kishori Lal Sahu executed the conditional sale deed along         G
with his son in favour Indira Devi on 5.8.1977. He had no right to assign
his right to repurchase the property, to any third party, the right being
personal to him. Even otherwise there was no clause in the sale deed in
terms of which such right could be assigned to anyone else. It was
further submitted that the Gift Deed by which the property was given to
                                                                                H
376                SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A     Veena Gupta cannot be termed as Gift Deed as there was consideration
      for transfer of the property in question as she could get the property in
      question only on payment of the consideration money mentioned in the
      sale deed. It was further submitted that from a perusal of the plaint, it is
      not evident that the plaintiffs were always ready and willing to fulfil the
      condition as mentioned in the conditional sale deed as they had no money
B
      available with them. Further, the stand taken by the appellant in the
      written statement was that late Kishori Lal Sahu was not keeping good
      health, hence the Gift Deed executed in favour of Veena Gupta was not
      a valid document.
             6.In support of the plea that the right as conferred in the sale deed
C     being personal, could not be assigned, reliance was placed upon the
      judgments of this Court in Bhoju Mandal and Ors. vs. Debnath Bhagat
      and Ors.1 and Kapilaben and Ors. vs. Ashok Kumar Jayantilal Sheth,
      through POA Gopal Bhai Madhusudan Patel and Ors2. It was further
      argued that multiple reliefs having been claimed in the suit, the same
D     was not maintainable as on the one hand, the claim was for specific
      performance whereas on the other hand, the plea of tenancy was also
      raised.
                ARGUMENTS OF THE RESPONDENTS
             7.On the other hand, learned counsel for the respondents submitted
E     that the only relief pressed by him is at serial no. 1 in the suit i.e. with
      reference to the specific performance with possession. It is a case in
      which late Kishori Lal Sahu, father-in-law of Veena Gupta, had executed
      the Gift Deed in her favour pertaining to his properties including the
      property in question. It is specifically mentioned in the Gift Deed that
F     Veena Gupta can take possession of the property sold to Indira Devi by
      purchasing the same from her. She will have all rights available to her
      which late Kishori Lal Sahu had. As per the condition in the sale deed,
      the property could be repurchased in case 5000/- were paid to Indira
      Devi up to July, 1984. The amount was offered to Indira Devi, however,
      when she refused to accept the same, civil suit was filed. As the appellants
G     were not accepting the consideration, during the pendency of the civil
      suit an application was filed in March, 1984 seeking permission to deposit
        5000/- in the Court. On permission being granted by the Court, the
      amount was deposited in Court on April 29, 1984. Hence, there was
      1
          1963 Supp (2) SCR 82
      2
H         (2020) 20 SCC 648
                INDIRA DEVI v. VEENA GUPTA & ORS.                              377
                        [RAJESH BINDAL, J.]

compliance of the condition laid down in the sale deed for getting the         A
property back. The right to get the aforesaid property back was assigned
by late Kishori Lal Sahu to the respondent no.1 vide registered gift deed.
The error committed by both the courts below in dismissing the suit was
corrected by the High Court.
       8.To counter the argument raised by the learned counsel for the         B
appellant that the right being personal to the deceased late Kishori Lal
Sahu, could not be assigned, reliance was placed upon judgment of this
Court in T.M. Balakrishna Mudaliar vs. M. Satyanarayana Rao and
Ors.3 and Shyam Singh vs. Daryao Singh (dead) by LRs and Ors4. It
was submitted that such a right is not personal and the same can always
be assigned. In any case, it was not assigned in favour of any third party     C
rather it was by the father-in-law of Veena Gupta in her favour, as he
was getting old. It was in the family only. He further submitted that
Special Leave Petition bearing SLP(C) No. 5910 of 2014 filed by Rajmani
Devi & Ors. against Veena Gupta, respondent no.1 herein challenging
the same judgment on the issue of default in payment of rent on the part       D
of original defendants was dismissed by this Court on 21.02.2014.
         9.Heard learned counsel for the parties and perused the record.
         DISCUSSION
       10.The primary issue which requires consideration in the present        E
appeal is as to whether the vendor can assign the right contained in a
sale deed to get the property registered back or the right being personal
cannot be assigned.
       11.The contents of the documents placed on record would be
relevant to appreciate the issue. The relevant clauses in the conditional      F
sale deed are extracted hereinbelow: -
         “That the vendors after taking confident of the vendee about the
         right title of the vendors and possession executed the conditional
         sale deed on valid consideration of Rs.5,000/ {Rupees five
         thousands} only and handed over the full right title and possession
                                                                               G
         to the vendee St. Indira Devi having left no concern with the
         property. The vendors were out of the purview of Land Calling
         Act.
3
    (1993) 2 SCC 740
4
    (2003) 12 SCC 160
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378           SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A          That the conditional sale deed is being executed on condition that
           if the vendors would return the full consideration money to the
           vendee by July 1984 then the vendee would return the same by
           means of registered sale deed at the cost of the vendors and the
           vendors fail to return the consideration money within the stipulated
           time the vendee would be full owner of the property till then the
B
           vendee would neither execute any deed of conveyance to others
           with respect to the land would mortgage the land nor would became
           the guarantor over the land nor would take loan over the land, if it
           would have been done it would be illegal. The vendee would also
           neither change the physical feature of the house nor the vendee
C          would be entitle to pay the rent to the state of Bihar.
           If the vendors intend to return the consideration money to the
           vendee within the stipulated period the vendee would execute a
           sale deed in favour of the vendors (failing which/the vendors would
           deposit the full consideration money in the court and the right title
D          of the vendee would be seized and in that case the vendee would
           bear the cost of the damages. If the vendee would be dispossessed
           from the afore said land or part thereof on account of some legal
           complication the vendors and their legal heirs would be liable to
           pay the full consideration money -A with damages to the vendee.
           The vendee would acquired full right title over the afore said land
E          after the expiry of stipulated period and the vendors would have
           no option or right there after to interfere with respect to the right
           title and possession of the vendee and the vendee would have
           been on liberty to mutate his name in place of vendors and utilize
           the land as per her choice if any interference is made by the
F          vendors or their heirs would be illegal by the court and the vendors
           would be entitle to bear the cost and damages”.
                                                          (emphasis supplied)
            12.The relevant clauses in the Gift Deed are extracted
      hereinbelow:-
G
           “I, the executant, am in possession of the above-mentioned
           property. I am in old age now and God knows when this life will
           come to an end. That beneficiary of this document is the Potehu
           (daughter-in-law) of the executant. She takes care of me, the
           executant and I am happy with her care. Therefore, I have decided
H
            INDIRA DEVI v. VEENA GUPTA & ORS.                                  379
                    [RAJESH BINDAL, J.]

      to gift my entire property to her and make her owner of my all the       A
      properties like me.
      ……..
      Only some property, as mentioned at column No. 5, has been
      given to Smt. Indira Devi through sale deed dated 5.8.1977. No
      other document regarding these properties has been executed.             B

      ……
      She can also take the possession of property sold to Indra Devi
      and Malti Devi by purchasing the same from her. Now she will
      get all the rights which I was enjoying till date in respect of above-   C
      mentioned property.”
      13.The civil suit was filed by late Kishori Lal Sahu and Veena
Gupta against Kaleshwar Prasad and Indira Devi. The primary relief
which has been pressed by the plaintiff is extracted below:-
      “(a)      A decree for specific performance of contract be               D
      passed in favour of the plaintiff first party and the defendant
      first be directed to take 5000/- from the plaintiff first party
      and the defendant second party be directed to execute and
      register a sale deed with respect to the suit house detailed in
      Schedule-I below in favour of the plaintiff first party and put
                                                                               E
      the plaintiff first party in possession and on failure of the
      defendants to do so, the court may be pleased to execute and
      register a sale deed in favour of the plaintiff first party on
      behalf of defendant second party and a decree for recovery
      of possession be passed and the plaintiff first party be put in
      possession by delivery of possession through court by                    F
      dispossessing the defendants or anybody else whosoever be
      found in possession on behalf of the defendant second party.”
       14. As has already been noticed, the Trial Court as well as the
first Appellate Court had dismissed the suit whereas the High Court had
reversed the findings and decreed the same.                                    G
      LEGAL POSITION
      15.The issue was considered by this Court in T.M. Balakrishna
Mudaliar (supra) wherein reference was made to earlier judgment of
Privy Council in Sakalaguna Nayudu v. Chinna Munuswami
                                                                               H
380             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     Naykar5. This Court opined that the benefit of a contract of repurchase
      which did not show that it was intended only for the benefit of the parties
      contracting, could be assigned. The option given to repurchase the
      property sold would prima facie be assignable. Para 9 of the judgment is
      extracted below:-
B           “9. The Privy Council in Sakalaguna Nayudu v. Chinna
            Munuswami Naykar has held that the benefit of a contract
            of repurchase which did not show that it was intended only
            for the benefit of the parties contracting, could be assigned
            and such contract is enforceable. Beaumont, C.J. in
            Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa
C           Bhatkar6held that both under the common law as well as under
            Section 23(b) of the Specific Relief Act, 1877, an option given
            to repurchase the property sold would prima facie be
            assignable, though it might also be so worded as to show that
            it was to be personal to the grantee and not assignable. On
D           the particular facts of that case, it was held that the contract
            was assignable. In Sinnakaruppa Gounder v. Karuppuswami
            Gounder7, it was held:
            “In our view, generally speaking, the benefits of a contract
            of repurchase must be assignable, unless the terms of the
E           contract are such as to show that the right of repurchase is
            personal to the vendor. In the latter case it will be for the
            person who pleads that the contract is not enforceable, to
            show that the intention of the parties thereto was that it was
            to be enforced only by the persons named therein and not by
            the assignee.”
F
             16.Again, the issue came up for consideration before this Court in
      Shyam Singh case (supra), wherein judgments of the Privy Council in
      Sakalaguna Nayudu and this Court in T.M. Balakrishna Mudaliar
      (supra) were referred to. It was a case in which a conditional sale deed
      was registered with a right of repurchase. The conditions as mentioned
G     in the sale deed in the aforesaid case, which were similar to the case in
      hand, are extracted below:-

      5
        AIR 1928 PC 174
      6
        AIR 1940 Bom 339 : 42 BLR 653 : ILR 1940 Bom 674
      7
        AIR 1965 Mad 506 : ILR (1965) 2 Mad 20
H
             INDIRA DEVI v. VEENA GUPTA & ORS.                                381
                     [RAJESH BINDAL, J.]

      “Whereas we, Daryao Singh, son of Hardeva, the first party and          A
      Surajmal, Peetam and Babu, sons of Rati Ram, the second party,
      Jat, residents of Village Nala, Pargana Kandhala, Tehsil Budhana,
      District Muzaffarnagar. Party 2 has executed a sale deed today
      in favour of Party 1 for a sum of Rs 4900 in respect of 2 bighas 7
      biswas of the land of Khasra No. 95, bearing a rent of Rs 6.25
                                                                              B
      annually situate in Khata No. 331 of Village Nala, Pargana
      Kandhala, Tehsil Budhana, District Muzaffarnagar, about which
      it was agreed between the parties that if the second party paid
      the entire consideration of the sale deed of Rs 4900 to the first
      party or to the heirs of thefirst party within ten years from today
      then in that situation the first party will reconvey the aforesaid      C
      land by sale deed in favour of the second party without any
      objection. If for any reason the first party does not execute a
      sale deed in favour of the second party, after five years but
      within ten years from the date of sale deed dated 4-2-1971,
      then the second party will have a right to deposit the entire
                                                                              D
      consideration of Rs 4900 in the civil court and get the sale
      deed executed by the court, the first party will have no
      objection. The present agreement will be binding upon the
      parties and the heirs of the parties. Therefore, these few
      comments by way of agreement of reconveyance of sale within
      ten years are being written so that this document may be used           E
      when necessary. After the limitation of ten years the second party
      will have no right at all to get released the aforesaid from Party
      1.”
                                                      (emphasis supplied)
       17. In Shyam Singh’s case (supra) the party having right to            F
repurchase the land sold the rights to a third party for a consideration of
   19,000/- by way of a registered document. The right to repurchase
was available to him on payment of 4900/-. All the courts below had
opined that if there is no clause in the sale deed permitting assignment of
right to repurchase, the same could not be transferred. When the matter       G
came up before this Court, the question under consideration was whether
such a prohibition against assignment or transfer can be read into the
document by implication. The opinion expressed was that a long period
of ten years was fixed for obtaining re-conveyance, no implied prohibition
of transfer or assignment can be inferred in the document keeping in
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382               SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A     view the provisions of Section 15(b) of the Specific Relief Act. The
      relevant paras of the judgment are extracted below:-
               “13.In our considered opinion, in the absence of any words
               or expressions in the documents indicating prohibition on
               assignment or transfer of right of repurchase and in the face
B              of clear provisions of Section 15(b) of the Specific Relief Act,
               1963, an implied prohibition cannot be read into the terms of
               the documents. Merely because in the documents, there is
               mention of “heirs” of the contracting parties but not their
               “assignees” or “transferees”, the legal right of assignment
               available to the benefit of original contracting party under
C              Section 15(b) of the Act cannot be denied to it.
               14.We are fortified in our view by two direct decisions of this
               Court rendered in somewhat similar circumstances with
               documents contemporaneously executed for sale and
               repurchase with comparable stipulations. See T.M.
D              Balakrishna Mudaliar v. M. Satyanarayana Rao (supra) and
               Habiba Khatoon v. Ubaidul Huq8".
               15. In the case of Habiba Khatoon [(1997) 7 SCC 452] taking
               stock of earlier decisions of this Court, the Privy Council and the
               High Court of Bombay, the law on the present-contested issue
E              was explained to uphold the right of repurchase of the original
               contracting party thus:
                  “We may in this connection also usefully refer to a decision of
                  this Court in the case of T.M. Balakrishna Mudaliar v. M.
                  Satyanarayana Rao [(1993) 2 SCC 740]. Considering the
F                 provisions of Section 15(b) of the Specific Relief Act, 1963 a
                  Bench of two learned Judges of this Court speaking through
                  Kasliwal, J., endorsed (in para 10 of the SCC) the statement
                  of law flowing from the decision of Sakalaguna
                  Nayudu [Sakalaguna Nayudu v. Chinna Munuswami
G                 Nayakar, AIR 1928 PC 174 : 55 IA 243 : 32 CWN 850] as
                  well as the decision of Beaumont, C.J., speaking for the Bombay
                  High Court in the case of Vishweshwar Narsabhatta
                  Gaddada v. Durgappa Irappa Bhatkar [AIR 1940 Bom 339
                  : 42 Bom LR 653 : ILR 1940 Bom 674] . The statement of law
      8
          (1997) 7 SCC 452
H
      INDIRA DEVI v. VEENA GUPTA & ORS.                                 383
              [RAJESH BINDAL, J.]

   which got imprimatur of this Court in para 9 of the Report runs      A
   as follows:
      ‘The Privy Council in Sakalaguna Nayudu v. Chinna
      Munuswami Nayakar [Sakalaguna Nayudu v. Chinna
      Munuswami Nayakar, AIR 1928 PC 174 : 55 IA 243 : 32
      CWN 850] has held that the benefit of a contract of               B
      repurchase which did not show that it was intended only
      for the benefit of the parties contracting, could be assigned
      and such contract is enforceable. Beaumont, C.J.
      in Vishweshwar Narsabhatta Gaddada v. Durgappa
      Irappa Bhatkar [AIR 1940 Bom 339 : 42 Bom LR 653 :
      ILR 1940 Bom 674] held that both under the common law             C
      as well as under Section 23(b) of the Specific Relief Act,
      1877, an option given to repurchase the property sold would
      prima facie be assignable, though it might also be so worded
      as to show that it was to be personal to the grantee and not
      assignable. On the particular facts of that case, it was held     D
      that the contract was assignable. In Sinnakaruppa
      Gounder v. M. Karuppuswami Gounder [AIR 1965 Mad
      506 : ILR (1965) 2 Mad 20 :
          In our view, generally speaking, the benefits of a contract
          of repurchase must be assignable, unless the terms of         E
          the contract are such as to show that the right of
          repurchase is personal to the vendor. In the latter case
          it will be for the person who pleads that the contract is
          not enforceable, to show that the intention of the parties
          thereto was that it was to be enforced only by the persons
          named therein and not by the assignee.                        F

16.From the statement of law as has been approved and followed
by this Court in two decisions in Habiba Khatoon [(1997) 7 SCC
452] and T.M. Balakrishna Mudaliar [(1993) 2 SCC 740] , unless
the contents of the document in question and evidence in relation
thereto are so clear to infer a prohibition against assignment or       G
transfer, the right of repurchase has to be held to be assignable or
transferable and cannot be treated as personal to the contracting
parties.
17. On a very unsubstantial ground that the document in question
makes a mention only of “parties” and their “heirs” and not             H
384               SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A              “assignees” or “transferees”, it cannot be held that the right of
               repurchase was not assignable. In our considered opinion,
               therefore, the courts below were in error in construing the
               document in question in a manner to infer an implied prohibition
               against assignment and transfer.”
B                                                           (emphasis supplied)
             18.It may be noticed that the earlier two judgments of this Court
      in T.M. Balakrishna (supra) and Habiba Khatoon (supra) were cited
      with approval. Right of repurchase was held to be assignable or
      transferable and cannot be treated as personal to the contracting parties.
C            19.To be fair to the appellant, we refer to the judgments cited by
      learned counsel for the appellant, which do not support his case. In Bhoju
      Mandal and Ors’s case (supra), the issue under consideration was as
      to whether the document in question there was a mortgage or a sale
      with condition of repurchase. The same was decided on construction of
D     the clauses in the document. It was in that reference this Court observed
      that there is a distinction between the said two concepts. The issue can
      be resolved only by ascertaining the intention of the parties on a
      consideration of the contents of the documents. The specific issue under
      consideration therein was not as to whether the right to repurchase was
      personal to the vendor or the same could be assigned or not. The judgment
E     of the High Court opining that the document therein was not a mortgage
      but a sale with a condition of repurchase was upheld.
             20.In Kapilaben and Ors.’s case (supra) this Court had considered
      that assignment of a contract might result in transfer of either rights or
      obligations thereunder. The transfer of obligations is not possible without
F     the consent of the other party. The transfer of right is permissible except
      in cases where the contract is of personal nature. Relevant paras thereof
      are extracted below:-
               “24.It is well-settled that the term “representative-in-interest”
               includes the assignee of a contractual interest. Though the
G              provisions of the Contract Act do not particularly deal with the
               assignability of contracts, this Court has opined time and again
               that a party to a contract cannot assign their obligations/liabilities
               without the consent of the other party. A Constitution Bench of
      9
          AIR 1962 SC 1810
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             INDIRA DEVI v. VEENA GUPTA & ORS.                                    385
                     [RAJESH BINDAL, J.]

      this Court in Khardah Co. Ltd. v. Raymon & Co. (India) (P)                  A
      Ltd.9, has laid out this principle as follows :
          “19. … An assignment of a contract might result by transfer
          either of the rights or of the obligations thereunder. But there
          is a well-recognised distinction between these two classes of
          assignments. As a rule obligations under a contract cannot              B
          be assigned except with the consent of the promisee, and
          when such consent is given, it is really a novation resulting
          in substitution of liabilities. On the other hand, rights under
          a contract are assignable unless the contract is personal in
          its nature or the rights are incapable of assignment either
          under the law or under an agreement between the parties.”               C

                            x        x        x        x
      27. Even in a case of assignment of rights simpliciter, such
      assignment would necessarily require the consent of the other
      party to the contract if it is of a “personal nature”. This is elucidated   D
      by the learned authors Pollock and Mulla in their commentary
      on The Indian Contract and Specific Relief Acts (R. Yashod
      Vardhan, and Chitra Narayan, Eds., 15th Edn., Vol. I) at p. 730:
          “A contract which is such that the promisor must perform it in
          person viz. involving personal considerations or personal skill         E
          or qualifications (such as his credit), are by their nature not
          assignable. The benefit of contract is assignable in ‘cases where
          it can make no difference to the person on whom the
          obligation lies to which of two persons he is to discharge
          it’. The contractual rights for the payment of money or to
          building work, for e.g. do not involve personal considerations.”        F
                                                     (emphasis supplied)
       21.It can be summed up from the aforesaid judgments that the
condition of right to repurchase in sale deed will not be personal to the
vendor unless the terms in the documents specifically state so. Such a
                                                                                  G
right can always be assigned and the contract containing such condition
shall be enforceable. The only exception being that such a right should
not be personal in nature. The assignment of obligations in a document is
not possible without the consent of the other party. No implied prohibition
of transfer or assignment can be inferred in a document. The benefit of
                                                                                  H
386              SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     contract is assignable in cases where it does not make any difference to
      the person on whom the obligations lies, to which of two persons he is to
      discharge.
             22.If the facts of the case in hand are considered, we do not find
      that there is any term in the conditional Sale Deed which debars its
B     assignment to any other person. The clause only mentions regarding
      right of repurchase. The option is given to the vendors with the obligations
      on the vendee. The right to repurchase in the present case has been
      assigned by Kishori Lal Sahu (now deceased) in favour of respondent
      no.1 who is none else than his daughter-in-law to whom other properties
      have also been gifted.
C
             23.Even the argument raised by learned counsel for the appellant
      that such an assignment of a right cannot be treated as a gift as
      consideration money is involved, is also noticed and rejected for the
      reason that the executor of the Gift Deed i.e Kishori Lal Sahu (now
      deceased) had transferred his right to repurchase the property in favour
D     of respondent no.1. That right could always be assigned by him with
      whatever conditions attached to it. Further in the suit filed, he was also
      a plaintiff, who died later.
            24.For the reasons mentioned above, we do not find any error in
      the judgment of the High Court. The present appeal is accordingly
E     dismissed. There is no order as to costs.

      Divya Pandey                                                 Appeal dismissed.
      (Assisted by : Shevali Monga, LCRA)


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