Chidambara Chettiar by his Authorized Agent, Ramasami Iyer vs Vaidilinga Padayachi and Others

Sadasiva Aiyar, J.—The plaintiff is the appellant before us. He sued for a declaration that the judgment-debtor, the sixth defendant, was the

owner of the plaint property and that the plaint property was therefore, liable to be attached and sold in execution of the decree which the plaintiff

has obtained against the sixth defendant. The defendants Nos. 1 to 5 plead that the sixth defendant had lost his title to the plaint property by reason

of the sixth defendant having orally transferred the plaint land, worth.much more than Rs. 100, to one Arumuga Padayachi in 1900, the sixth

defendant having obtained from the said Arumuga Padayachi''s Arumuga Padaynchi''s own land by way of exchange. The land which the sixth

defendant so obtained in exchange had been conveyed by him to strangers in 1901 (see Exhibits I and III). The present suit was brought about ten

years after the exchange transaction of 1900. The plaintiff contended that the oral exchange, by which the sixth defendant is alleged to have lost

title to the plaint lands in favour of Arumuga Padayachi, did not validly transfer the sixth defendant''s title to Arumuga Padayachi (whose brother''s

nephew and sons are the defendants Nos. 1 to 5). The plaintiff relied upon Section 118 of the Transfer of Property Act, winch provides that a

transfer of a property by way of exchange can be made only in the manner provided for the transfer of such property by sale in Section 54, which

section requires a registered instrument for sale of Immovable property of the value of Rs. 100 and upwards. The defendants Nos. 1 to 5 tried to

meet this objection of the plaintiff by contending that as the sixth defendant is unable now to give back the lands which be himself got by oral

exchange from Arumuga Padayaohi owing to the sixth defendant having conveyed them away to strangers under Exhibits I and III, the sixth

defendant is estopped from pleading that the oral exchange is invalid; as the sixth defendant is so estopped, his decree-holder (the plaintiff) is, it is

contended, similarly estopped. The Munsif decreed the plaintiff''s suit, relying upon the Full Bench decision in Kurri Veerareddi v. Kurri Bapireddi

29 M.p 336 (F.B) : 16 M.L.J. 395 : 1 M.L.T. 153. That case decided that the provisions of Section 54 of the Transfer of Property Act are

imperative and cannot be disregarded on grounds based upon mere equitable considerations. The Appellate Court (the Subordinate Judge of

Mayavaram), relying upon Ram Bakhsh v. Mughlani Khanam 26 A.k 266 : A.W.N. (1903) 8; Karalia Nanubhai v. Mansukhram 24 B. 400 : 2

Bom. L.R. 220 on Section 40 of the Transfer of Property Act, Section 91 of the Trusts Act Section 120 of the Transfer of Property Act, and

Section 55, Clause (6), of the Transfer of Property Act, held that the sixth defendant had no attachable interest in the property and dismissed the

plaintiff''s suit with costs.

The contention in second appeal is that the Subordinate Judge was wrong in his view of the law. I think that Ram Bakhsh v. Mughlani Khanam

26 A.p 266 : A.W.N. (1903) 8 and Karalia Nanubhai v. Mansukhram 24 BP. 400 : 2 Bom. L.R. 220 cannot be treated as good law in the

Madras Presidency, having regard to the decision of the Pull Bench case in Kurri Veerareddi v. Kurri Bapireddi 29 M.K 336 : 16 M.L.J. 395 : 1

M.L.T. 153. Karalia Nanubhai v. Manusukhram 24 B.K 400 : 2 Bom. L.R. 220 might also be distinguished on the ground that in that case the

vendee, the person who had entered into a contract of purchase with the judgment-debtor, had not lost his right to enforce specific performance on

the date of the attachment. The contract was then an existing contract in the words of Section 91 of the Trusts Act.

As regards estoppel, no estoppel can be pleaded against the directions and prohibitions enacted by the Statute haw and against the rights

accruing to any party by reason of such directions and prohibitions. As regards Section 55, Clause 6(b) of the Transfer of Property Act, it, no

doubt, gives a charge for the purchase-money paid in favour of the purchaser under a contract of sale on the property contracted to be sold, if the

sale goes off without default on the part of the purchaser. It is argued that as Section 120 of the Transfer of Property Act gives to a party to an

exchange transaction similar rights as if he was a seller or buyer in a sale transaction, the defendants Nos. 1 to 5 have a charge upon the plaint

property to the extent of the price of that property at the time of the exchange transaction, and that if this suit is decreed in the plaintiff''s favour,

that is, if the plaintiff is declared to have the right to attach and bring the plaint property to sale in execution of the decree against the sixth

defendant, it should be further declared in favour of defendants Nos. 1 to 5 that they have got a charge upon the plaint property to the extent of the

price of such property on the date of the exchange transaction in 1900.

In the first place, it seems to me that having regard to the definition of exchange in Section 118 of the Transfer of Property Act, no question of

money or purchase-money is involved in a transaction of exchange and hence the charge created for purchase-money u/s 55, Clause 6(b), of the

Transfer of Property Act cannot arise in the case of an exchange transaction.

In the next place, defendants Nos. 1 to 5 did not make any claim in their written statement to this alternative relief of a charge being declared in

their favour if the exchange transaction be held invalid by the Courts, nor have they raised this point in the memorandum of appeal to the

Subordinate Court.

In the third place, it is very doubtful whether they could be allowed now to amend their pleadings so as to raise that question of charge as their

right to enforce the said charge is probably now barred by limitation, because if any legal charge which could be relied on was ever created it must

have been created in 1900 and we are now in 1913.

Lastly, I am not sure that to a suit for ejectment the defendant could plead a mere charge, and whether the defendant who has got a mere charge

ought not to be relegated to his own suit to enforce the charge after paying proper Court-fees on his plaint instead of being allowed as defendant to

impose conditions on the plaintiff as a preliminary to the plaintiff''s being given a decree in ejectment. As regards the last-point, however, I must

admit that there are observations in the case of Mutta Venkatachalapathy v. Pyinda Venkatachalapathy 17 Ind. Cas. 987 : 23 M.L.J. 652 : 12

M.L.T. 579 which are in the defendant''s favour. However, on the grounds Nos. 1 to 3 which I have enunciated above, the defendants Nos. 1 to 5

cannot obtain a declaration in their favour of a charge for any money, that is, for the probable price (unsatisfactorily and roughly ascertained by

evidence after ten years) on the date of the exchange in 1900. In the result the lower Appellate Court''s decree will be get aside and the Munsif''s

decree restored. As this is a hard case for the defendants Nos. 1 to 5, I would make no order as to costs in the lower Appellate Count and in this

Court.

Spencer, J.

I agree with the conclusions of my learned brother. I have only to add that the decisions on which the lower Appellate Court relied can be

distinguished from the present case. Ram Bakhsh v. Mughlani Khanam 26 A.K 266 : A.W.N. (1903) 8 was a case in which certain Immovable

property was delivered in satisfaction of a Muhammadan widow''s decree for dower. The Allahabad High Court has in several cases shown a

reluctance to apply the provision of Section 54 of the Transfer of Property Act strictly to sales between Muhammadans, knowing that under Sunni

Law payment of price accompanied by delivery of possession constituted a complete transfer without the execution of any document, vide Section

820 of Gour''s Law of Transfer in British India.

In Karalia Nanubhai v. Mansukhram 24 B.P 400 : 2 Bom. L.R. 220 the Court treated the judgment-debtor as holding the property in trust for

the person who had purchased from him. A conveyance was executed and registered under a decree for specific performance, thereby perfecting

the purchaser''s title before the suit for declaration of the judgment-creditor''s right to attach was decided in the Court of first instance,

Section 55 of the Indian Transfer of Property Act being founded mainly on the provisions of the English Conveyancing Act of 1881, I doubt if

Clause 6(b), which deals with the buyer''s lien, can properly be applied to an exchange of Immovable property notwithstanding Sections 119 and

In Volkart Brothers v. Vettivelu Nadan 11 M.P 459 a claim based on an agreement to exchange goods in the shape of cotton was allowed

on the ground of trade usage, but usages and custom of trade are specially excepted by Section 1 of the Indian Contract Act, and the property in

dispute in that case being moveable was governed by Chapter VII of the Indian Contract Act, which deals with the sale of goods and corresponds

with the provisions of the Sale of Goods Act in England.