AYYAKUTTY CHETTIAR Vs. IMBICHIAMINA BI

JUDGEMENT

(1.) In this appeal arising out of a suit for specific performance of an agreement to sell entered into by the first defendant, the only question which arises for decision, is whether the plaintiff is entitled to a charge for the sum of Rs. 3,504-15-0 which he had paid from time to time towards the sale consideration. Ext. A1 the agreement, recited the total sale consideration to be Rs. 6,000/- of which Rs. 500/- was a cash receipt. The plaintiff made payments subsequently, but the sale was not completed. The suit comprised other reliefs with which the appeal is not concerned. The second defendant is the transferee of the properties from the first defendant, and his contention that he had no notice of Ext. Al, has been accepted by the Subordinate Judge. The plaintiff was given a decree for the sum of Rs. 3,504-15-0 charged on the properties, and for a further sum of Rs. 1000 by way of damages against the first defendant personally. The second defendant has preferred this appeal and the plaintiff has filed a memorandum of cross objections against the findings and the decree, in so far as they are against him.

(2.) The contention of the learned-counsel for the second defendant was, that S.55(6) clause (b) of the Transfer of Property Act, under which the Judge gave a charge, has to be read subject to S.100 of the Transfer of Property Act, and that in any event, Ext. A1 being unregistered, the plaintiff is not entitled to any relief as against the properties transferred to the second defendant. S.55(6)(b) provides, that on the fulfilment of certain conditions, which it is not necessary to set forth, where the sale has not been completed, the buyer is entitled to a charge on the property, as against the seller and all persons claiming under him, to the extent of the sellers interest in the property, for the amount of any purchase money properly paid by him. Prior to the Amending Act of 1929, the words with notice of the payment occurred after the words all persons claiming under him and therefore the buyers charge was not available against a transferee without notice. It is plain that under the section in its present form, the charge is enforceable also against all persons claiming under the seller, whether they have notice of the charge or not. S.55(6) is, in my opinion, a special provision while S.100 is a general provision which must therefore yield to the former. This was held by the Bombay High Court in Hari Bapuji v. Bhagu Sadhu (AIR 1937 Bom. 142) and in Abdul Hamid Khan v. Mohamed Ali (AIR 1952 Bom. 67).

(3.) The contention based on S.17 (2) of Indian Registration Act is wholly unsustainable. Differing from a series of decisions of the Indian High Courts, the Privy Council held in Dayal Singh v. Indar Singh ( AIR 1926 PC 94 ), that where an agreement for sale acknowledged the receipt of the sale consideration, a charge arises under S.55 (6) (b) of the Transfer of Property Act, in the event of the sale not being completed, and that therefore such an agreement must be registered. Soon after this decision was rendered, an explanation was inserted in S.17 of the Indian Registration Act, which reads: