CHRISTINE PAIS Vs. K UGAPPA SHETTY

JUDGEMENT

(1.) Defendant 2 is the appellant in this second appeal which he has preferred against the decision of the II Additional Subordinate Judge of Mangalore South Kanara Respondent 1 was the plaintiff and respondent 2 was the tenant (Deft 1) respectively in that suit. The plaintiff's case was that he is a Receiver appointed by the Subordinate Judge's Court of South Kangaroo in O.S. No.275 of 1953 in respect of the estate of one Joseph P Fernandes. Defendant 1 was a tenant under the said J.P. Fernandes in respect of a portion of his estate comprising of survey No. 47 of Bolur village on payment of rental amount. Accordingly to the plaintiff, defendant 1 has obtained a registered sale deed on 23-11-1957 in execution of the decree passed in suit. O.S. 278 of 1953 filed by him against the heirs of the deceased Joseph P Fernandes for specific performance of contract for sale of the suit schedule properties. It was alleged that defendant 2 became entitled to collect the rent and profits of the property from the tenant defendant 1 from the date of the of the sale deed, namely, 23.11.1957. The plaintiff pleaded that he, as a receiver is entitled to collect the proportionate rent and the profits of the suit survey number, under the law from the period commencing from 1-4-1957 up to 23-11-1957, namely, the date of the execution of the sale deed amounting to Rs. 721-47 nP. The plaintiff's case was that in spite of lawyer's notice, defendant 1 failed to pay the said amount. It was further stated by him that as the suit involved apportionment of rent and profit between the plaintiff and defendant 2, defendant 2 is also made a party to the suit. On the basis of these allegations he filed a suit against both the defendants claiming interest at the rate of 51/2 per cent on the suit amount from 1-4-1958, till final payment. The sum and substance of the written statement of defendant No.1 was: that she is a lessee under the plaintiff in respect of the estate of J.P. Fernandes. She contended that defendant 2 took a lease deed from her in his favour by force in respect of the suit property. Though other contentions were also raised on behalf of defendant 1 in her statement, they are not necessary for the disposal of this appeal. In her defence, defendant 2 inter alia, denied knowledge of appointment of receiver by the court in O.S. No. 275 of 1953 in respect of the estate of J.P. Fernandes. she admitted that defendant 1 was a tenant of survey No. 47 of Belur village, and that the latter executed a lease deed in her favour on 15-12-1957. She also admitted that she has taken a sale deed on 23-11-1957 in execution of the decree passed in O.S. 278 of 1953 filed by her against the heirs of J.P. Fernandes for specific performance on the basis of agreement for sale deed 30-8-1958. She contended that as per terms of the decree she deposited an amount of Rs. 16,758 in court on 22-3-1957, and that the ownership of the suit property passed to her on that date, namely the date of deposit of the amount on 22-3-1957, and therefore, she is entitled to recover the rent and profit of the suit property from defendant 1 from the date on which she deposited the amount, and that the plaintiff is not entitled to recover the same. She further pleaded that in case the plaintiff's suit is decreed she is entitled to the deduction of the taxed paid. On the evidence abduced in the case, the trial Judge decreed the plaintiff's suit, after allowing deduction in respect of the taxes as follows:

(2.) Arguments on behalf of the appellant both in the lower appellate court and before me has been that title to the suit property passed to the appellant immediately after he deposited the balance of the purchase money on 22-3-1957, and therefore, he is entitled to the rent and profit of the suit schedule property from that date.

(3.) The learned Advocate for the appellant submitted that the Courts below were not right in holding that the provisions of Section 55(4)(a) are applicable to the case. He urged that the provisions of Section 55(4)(a) prima facie the Transfer of Property Act would not apply to a case where a person entering into an agreement for sale commits a default and thereby drags on the purchaser to a suit for specific performance in which a decree is passed, like in the instant case. He submitted that in this case, the right of the purchaser and the liability of seller depends more or less on an agreement for sale, the validity of which has been subsequently upheld by the decree for specific performance. He stressed that though the registered sale deed has been executed on 23-11-1957, the title to the property and the right to possess the property really accrued to defendant 2 from the date of the deposit of the purchase money Rs. 16,750 i.e., on 22-3-1957. In support of his proposition he relied mainly on two decisions of the Calcutta High Court reported in Subodh Kumar v. Hiramoni Dasi, AIR1955 Cal 267 and in Jahar Lal v. Bhupendra Nath, AIR 1922 Cal 412(2). He also relied on a decision of Lahore High Court in Tomlinson v. Kottaya Goundan, 34 Ind Cas 737, (AIR 1917 Mad 1009). On the other hand, it has been contended by Mr. Holla, the learned Advocate for the respondent that the provisions of the Transfer of Property Act contained in Section 55(4)(a) are not applicable to the case and that the title to an immovable property would pass only when a proper and registered sale deed is executed. He depended upon the principle laid down by the Andhra Pradesh High Court in a decision reported in Ramalingam v. Jagadammal, AIR 1957 Andh Pra 960, Enayat Ullah v. Khalilullah. AIR 1938 All 432.Ramakrishnayya v. Vira Raghavayya, 1954-2 Mad LJ (Andh) 11. Janardan Kishore Lal v. Girdhari Lal. AIR1957 Pat 701 , 1957 (5 )BLJR368 Reliance also was placed by him on section 54 of the Transfer of Property Act. He stoutly maintained that title and ownership in an immovable property is transferred by a proper conveyance namely registered sale deed, and urged that title and possession both flow only form the date of the deposit of the purchase amount by the vendee as alleged on behalf of the appellant. In the light of the arguments advanced before me, the only point for determination is whether the title to the suit property passed on 25-2-1957, the date of the decree or on 22-3-1957 the date of the deposit of the balance of the purchase money in the court. The argument of Mr. Vittal Rao, learned Advocate for the appellant was that the ownership in an immovable property is affected by passing of the decree itself. Relying on the decision of the Calcutta High Court in AIR 1922 Cal. 412(2), he urged when once a decree is passed, the title of the vendee would relate back to the date of the agreement for sale on which the suit was bases. He also argued, in this connection that the suit in which the appellant has obtained the decree was for specific performance. In a suit of this nature the right to possession springs from the date of the agreement for sale itself. That being so, the vendee is entitled to rents and mesne profits not only from the date of the decree, but even from the date f the agreement for sale. In support of this proposition, he relies on a decision in AIR1955 Cal 267 .