BEEVI Vs. PAREED

JUDGEMENT

(1.) THE first appellant is the wife of the second appellant; and they were plaintiffs 1 and 2 before the trial court. THE deceased first respondent, who was the first defendant, purchased a property in 1951 for Rs. 5,950/- from the second plaintiff. Several liabilities of the vendor were directed to be discharged by the vendee; and a sum of Rs. 1000/-was directed to be paid to the first plaintiff one year after the document with interest. A sum of Rs. 260/- alone was received in cash by the second plaintiff. For the Rs. 1000/-reserved to be paid to the first plaintiff, a charge was also created in her favour. THE plaintiffs brought the suit, which has given rise to the second appeal, for recovery of the said sum by the first plaintiff; and the second plaintiff was made a formal party to the suit. THE first defendant claimed that he was an agriculturist and was entitled to relief under Act XXXI of 1958. THE trial court held that he was not an agriculturist and that the debt came within the exemption of S. 2 (c) (vii) of the Act. THE lower appellate court reversed both these findings; and the question in; second appeal is whether this reversal is correct.

(2.) ON the first question, whether the first defendant is an agriculturist or not, the matter is simple. The trial court held that the land purchased by the first defendant under Ex. D-5 was not agricultural or horticultural land but only house-property. The lower appellate court reversed this, and rightly did so, because the trial court was in error when it thought that the property was house-property. There was no house in the land purchased; and there is evidence that there were fruit bearing trees thereon. It is therefore evident that the land is at least horticultural land and that the first defendant is an agriculturist.

(3.) IN the case before us the position is different: the charge was created in favour of the first plaintiff, a third party to the contract. IN such a case the principle that applies is laid down by another division Bench ruling of the Madras High Court in Swaminatha Odayar v. Subbarama Aiyar (AIR. 1927 Mad. 219 ). The Division Bench held that if by agreement between the vendor and the vendee, the vendee put himself under an enforceable liability to a third party by executing, for example, a promissory note in favour of such third party for the whole or part of the purchase money, then in respect of such whole or part, there was a "contract to the contrary" coming within the meaning of S. 55 of the Transfer of Property act and the vendor's statutory charge on the property was to that extent defeated. IN the case before us, again, the creation of a charge in favour of the third party was "a contract to the contrary" to the continuance of the statutory charge in favour of the vendor himself. It is therefore clear that the amount left to be paid to the first plaintiff did no more retain the character of unpaid purchase money.