MADHAVA KAMMATHI Vs. GOPALA PAI

JUDGEMENT

(1.) I think (in respectful agreement with the view expressed in Hari Bapuji v. Bhagu Sadhu, AIR 1937 Bombay 142, Abdul Hamid Khan v. Mohamed Ali, AIR 1952 Bombay 67 and Ayyakutty Chettiar v. Imbichiamina Bi, 1962 KLT 728 - see also Mulla's Transfer of Property Act, 4th Edition, page 294 where it is stated that the omission of the words "with notice of the payment" from S.55(6)(b) off that Act by Act 20 of 1929 "makes the charge of the buyer for price prepaid effective not only against the seller but against all persons claiming under him irrespective of notice") that the lower appellate court was right in holding that the charge provided by S.55(6)(b) of the Transfer of Property Act is available even as against a bona fide transferee for value from the seller. True, S.55(6)(b) must be read along with S.100, for, the former only creates a charge and you must: go to the latter for the incidence of that charge. With great respect to what is said in Ayyakutty Chettiar v. Imbichiamina Bi (1962 KLT 728), I do not think that there can be any question of S.55(6)(b) excluding the operation of the saving; in the second paragraph of S.100 on the ground that the former is a special provision and the latter only a general provision. It seems to me that the true reason why the saving does not apply is this: The saving is in the following words, "Save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration & without notice of the charge." It will be noticed that the protection afforded is to a bona fide transferee for consideration from a person against whom a charge is given either by act of parties or operation of law, not to the very person against whom the charge is thus given even if it be that he is himself a bona fide transferee for consideration. If we turn next to S.55(6)(b) what we find is that it gives the charge "as against the seller and all persons claiming under him" without any exception made in favour of a bona fide transferee for value. Therefore, such a person is also a person against whom the law itself provides a charge and it follows that he is not entitled to the protection in the second paragraph of S.100. Before the amendment introduced by Act 20 of 1929, there appeared the words, "with notice of the payment" in S.55(6)(b) so that the charge provided in the section was available, so far as persons claiming under the seller were concerned, only against those with notice of the payment and not against a bona fide transferee for value. Those words were omitted by Act 20, of 1929, and it is to be remarked that by that very statute, the seller's charge embodied in S.55(4)(b) was extended to a transferee from the buyer but with the important qualification added that he must be a transferee without consideration or with notice of the non payment. That the extension of the charge provided by S.55(6)(b) to all persons claiming under the seller irrespective of whether they were bona fide transferees for value or not was deliberate and not a slip is clear from the following observation by the Special Committee to which the bill which later became Act 20 of .1929 was referred in its notes on the clause providing for the deletion of the words, "with notice of the payment" from S.55(6)(b):

(2.) The statute seems to me clear that the charge is available even as against a bona fide transferee for value, and, when that is so, the argument of injustice, and of the door being open for fraud, must be addressed to the legislature and not to the courts. But I might mention that the members of the Committee who thought that a buyer's lien stood on a different footing from a seller's lien and ought to be enforceable even against a bona fide transferee for value, were Messrs. S. R. Das, B .L. Mitter, D. F. Mulla and S. N. Sen.

(3.) It is said that the sale in this case by the 1st defendant to the appellant 2nd defendant after he (the 1st defendant) had entered into an agreement to sell in favour of the plaintiff, took place in the Travancore area before the Transfer of Property Act was extended to that area on 1-5-1952 and that therefore the case is to be decided in accordance with the pre existing Travancore law and not in accordance with the provisions of the Transfer of Property Act. I have not been referred to any Travancore case wherein the buyer's lien was declined as against a bona fide transferee for value, and, so far as I am aware, the courts in Travancore, as a rule, followed the provisions of the Transfer of Property Act as embodying the principles of justice, equity and good conscience. That apart, I am loth to entertain this contention at this very late stage in the courts below, at any rate in the lower appellate court, the parties proceeded on the footing that the case was governed by the Transfer of Property Act and even the memorandum of the second appeal proceeds on that footing.