S. J. Hyder, J. - (1.) PLAINTIFF respondents executed a sale deed of their house in favour of the defendant appellant for a sale consideration of Rs. 500/- on February 20, 1965. Simultaneously an agreement was executed whereby the vendee of the sale deed agreed to reconvey the property to the vendors in lieu of a like amount. There was a controversy between the parties whether the period during which the plaintiff" respondents were entitled to get reconveyance was five years or five months. I will briefly refer to this controversy later in the judgment. The plaintiff respondents instituted a suit giving rise to this second appeal for specific performance in view of the agreement of reconveyance dated 20th February, 1965 executed by the defendant appellants in their favour. The suit was decreed by the primary court and the decree has been affirmed by the first court of appeal, hereinafter referred to as the court of appeal. The defendant feels aggrieved by the decree of the court of appeal and has now approached this Court.
(2.) THE defendant appellants admitted that the house originally belonged to the plaintiff respondents and that they conveyed the same to the defendant appellants by means of sale deed dated February 20, 1965. It was also conceded in the written statement filed before the primary court that on the same date the defendant appellants agreed to transfer the house to the plaintiff respondents for a sum of Rs. 500/-. According to the defendants reconveyance was to be executed within a period of five months from the date of execution of the agreement and not within five years from the said date as alleged by the plaintiff. THE defendant contended that since the plaintiff respondents failed to obtain the conveyance of the house within the stipulated period of five months they have lost their right to claim specific performance. Before the primary court plaintiff respondents did not file the original agreement dated February 20, 1965. They alleged that the said agreement has been lost and the loss has been reported to the police. They relied on a photograph of the agreement which they stated they had obtained as a matter of precaution. The court of appeal did not accept the plaintiffs case that the agreement dated February 20, 1965 had been lost and as such it was of the opinion that the secondary evidence of the agreement produced by the plaintiff respondents was not legally admissible. In agreement with the trial court it found as a fact that the plaintiff respondents were bound to obtain conveyance of the house in dispute within the period of five months and not five years. The court of appeal was further of the view that since the agreement to sell was admitted between the parties plaintiff respondents were entitled to maintain the suit for specific performance. In its view the agreement related to the conveyance of immovable property and as such time was not. the essence of the contract since the suit for specific performance had been filed by the plaintiff respondents within the period of limitation prescribed for such suits. The court of appeal had no difficulty in recording a decree in favour of plaintiff respondents, True it is that ordinarily time is not the essence of contract in case of agreement to reconvey immovable property. However as the sale deed was executed in favour of the vendee and in consideration of the same transaction he agreed to reconvey the property to the vendors on payment of stipulated amount and within the specific period different considerations arise.
(3.) WHEN a person obtains conveyance of immovable property he acquires permanent title for the same which is not limited in duration ; but if he is made to execute an agreement to reconvey the property within a specified time in favour of his vendors his title becomes precarious. He can be compelled by the original vendors for a specific performance of the agreement executed in their favour. It will be inequitable to hold that the precarious nature of the title of the vendee continues even after the period prescribed under the agreement to reconvey the property executed by him has expired. The matter may be considered from another stand point. When an owner of a property conveys it he loses all right, title and interest therein. When agreement to sell is executed in his favour by the vendees of the property a privilege is conferred upon him. In case the agreement stipulates that the quondam owner can re-purchase the property within a certain time there is no equitable ground on the basis of which it can be held that the privilege will continue to subsist in his favour even if he has not exercised the option given to him within the period stipulated in the agreement. Equity operates to do justice and by justice is meant justice to both parties and not to one of them. The view which I am taking on this point is supported by the decisions in Shan Mugan Pillay v. Analaxmi, AIR 1951 Federal Court 38 ; K. Sunrathmull v. Nanjalingah Gouder, 1963 SC 1182 and Dewan Man Mohanlal v. Lalla Pyrelal, 1972 ALJ 865.;