K S RM RAMANATHAN CHETTY Vs. TKVRAMASAMI CHETTY

JUDGEMENT

(1.) In this ease, the parties by an unregistered agreement, Exhibit B, dated 4th March 1908, agreed for mutual convenience to an exchange of certain plots of land, forming part of their adjoining house sites. Exhibit B shows that the agreement was come to in the presence of mediators, and the effect of the oral evidence is that it was these mediators who settled the amount of the cash payment to be made by the 1st defendant to the 1st plaintiff to equalize matters, but Exhibit B is in terms an agreement signed by the parties and we see no sufficient reason for treating it, as the Subordinate Judge has done, as an award or proceeding and as such, it is exempt from the provisions of the Registration Act. It is therefore, necessary to deal with the plaintiff s claim, that owing to this want of registration, he is entitled to recover back the land given by him in exchange to the defendant, even though the defendant has erected on the land one of the walls of his new house which has cost over Rs. 40,000 and the removal of the wall would bring down the house, and although nearly a year after the exchange, when the defendant was beginning to build, the plaintiff objected to the extent of the land awarded to him in exchange and obtained a further payment of Rs. 525 from the defendant. The parties have since quarrelled and it is scarcely denied that the plaintiff s object in bringing the suit is rather to injure the defendant than to benefit himself. It is, however, argued that in default of registration, the land remained the property of the plaintiff as, under the Transfer of Property Act, the transfer could only be made by registered instrument and that the defendant is not entitled to the benefit of any of the equities which English Courts raise in such a case against the application of the Statute of Frauds. As observed in Maddison v. Alderson 8 A.C. 467; 52 L.J.Q.B. 737; 49 L.T. 303; 31 W.R. 820; 47 J.P. 821, that Statute did not make the transaction itself void whereas it is contended that was the effect of the Transfer of Property Act and the Full Bench decision of this Court [Kurri Veerareddi v. Kurri Bapireddi 29 M. 336; 16 M.L.J. 395; 1 M.L.T. 153] was relied on. It was held in that case, when the price had been paid and possession delivered but the sale-deed had not been registered, that the vendor was entitled to get back the property and that the contract to sell, afforded no defence even though the defendant s right to sue for specific performance, was not barred at the institution of the suit. White, C.J., arrived at this conclusion with some hesitation having regard to the observations of their Lordships of the Judicial Committee in Immudipatam Thirugnana Kondama Naih v. Periya Dorasami 24 M. 377; 28 I.A. 46; 5 C.W.N. 217, and it may be necessary when the time comes to consider how far the decision of the Full Bench can be reconciled with the very general language used by their Lordships in the more recent case of Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930; 2 L.W. 258; 42 C. 801; 21 C.L.J. 231; 28 M.L.J. 548; 19 C.W.N. 250; 13 A.L.J. 229; 17 M.L.T. 143; (1915) M.W.N. 621; 17 Bom. L.R.420, though no doubt the transaction there in question took place before the passing of the Transfer of Property Act and the effect of its provisions is not referred to in the judgment. But assuming Kurri Veerareddi v. Kurri Bapireddi 29 M. 336; 16 M.L.J. 395; 1 M.L.T. 153, to be correctly decided, I am net prepared to hold that it involves the proposition that where there is no registered document, no amount of acquiescence on the part of the transferor will bar his right to get back the property within statutory period. Where a lessee for a limited term erects buildings on the land and the lessor stands by and says nothing, it was no doubt held in Ramsaden v. Dyson 1 H.L. 129; 12 Jur. (N.S.) 506; 14 W.R. 926 and Beni Ram v. Kundan Lal 21 A. 496; 1 Bom. L.R. 400; 3 C.W.N. 502; 25 I.A. 58; 7 Sar. P.C.J. 523, that the mere acquiescence of the lessor, will not debar him from recovering the land at the expiry of the term. In Immudipatam Thirugana Kondama Naik v. Peria Dorasami 24 M. 377; 28 I.A. 46; 5 C.W.N. 217, the plaintiff sued in the year 1895 for a declaration of his title and for redemption. The mortgage in 1882 by the plaintiff s father in favour of the mortgagees provided that on redemption, the property should be handed over to the contesting defendant; but their Lordships found, not only that there was no registered transfer as required by the Transfer of Property Act, but that it was not proved that there was any valid contract by the plaintiff s father to make the transfer to the defendants. If there had been such a contract, their Lordships were of opinion that it would have been a good defence as the defendants might call on the transferor s heir to supplement the contract and this, though the suit was brought more than twelve years after the date of the alleged transfer. The present case is undoubtedly much stronger. Not only was there a contract to exchange, but it was fully performed and long afterwards, the plaintiff stood by and acquiesced in the defendant s building and obtained a further payment from him. In these circumstances, putting aside the conveyance altogether, I think the plaintiff is estopped. Key, J., in MacManus v. Cooke 35 Ch. D. 681; 56 L.J. Ch. 662; 56 L.T. 900 36 W.K. 754; 51 J.P. 708 cited an old case Anon 2 Eq. C. Ab. 522; 22 E.R. 440, which is both brief and apposite: "Short v. Taylor, in Lord Somer s time, was cited, which was, Short built a fine house; Taylor began to build another; but laid part of his foundation upon Short s land. Short seeing this, did not forbid him but on the contrary very milch encouraged it; and when the house was built, he brought an action; and Lord Somer granted an injunction." The plaintiff s conduct in this case has been far worse than that of Short. It is clear, observes Key, J., in McManus v. Cooke 35 Ch. D. 681; 56 L.J. Ch. 662; 56 L.T. 900 36 W.K. 754; 51 J.P. 708 citing this case, that if a man builds a house partly on his neighbour s land, and the neighbour acquiesces in this being done, Courts of Equity will interfere to prevent him from disturbing it. Assuming Kurri Veerareddi v. Kurri Bapireddi 29 M. 336; 16 M.L.J. 395; 1 M.L.T. 153, to be rightly decided, I do not think it prevents us from applying this rule in India, or obliges Us to countenance a purely vexatious suit such as this. I may also refer to Plimmer v. Mayor of Wellington 9 A.C. 699; 53 L.J.P.C. 104; 51 L.T. 475; 49 J.P. 116 and Attorney -General of Southern Nigera v. Holt and Company (1915) A.C. 599; 84 L.J.P.C. 98, which were cited before us as supporting the same view. I would, therefore, uphold the decree though on different grounds and dismiss the appeal with costs. In the result, the appeal is dismissed with costs. Seshagiri Aiyar, J.

(2.) I have the misfortune to differ from the learned Chief Justice. The main facts are not in dispute. By a deed dated the 4th March 1908, there was an exchange of building sites between the 1st plaintiff and the 1st defendant. The 1st defendant erected a wall on the exchanged site and put up a substantial building. This suit was instituted in 1911 for recovery of the site after removing the building on it. The case for the plaintiff is that as the deed was not registered, no title passed to the plaintiff. The Subordinate Judge held that the document was not a deed of exchange and that the real exchange was effected by the award of arbitrators. Mr. Krishnaswami Aiyar, for the respondent, drew our attention to the evidence on this point. We feel no hesitation in holding that the document is a deed of exchange and that there is no satisfactory evidence to prove that the arbitrators gave an award as to the exchange. The evidence does not show that there was any antecedent dispute relating to the exchange. There is no reference in writing. On the evidence, it is clear that all the mediators were called upon who were to fix the price to be paid by the defendant as he was taking a larger extent than the plaintiff obtained from him. The evidence on the side of the plaintiff is clear and consistent and we accept that, as being more in accordance with the probabilities of the case. We cannot accept the finding of the Subordinate Judge on this point.

(3.) The question of law arising on these facts is whether the plaintiff is not entitled to recover possession, because of his conduct in allowing the 1st defendant to erect a substantial building at a great cost. There can be no doubt that the plaintiff has no merits and his conduct has not been above board. Still if the law is in his favour, the Court will not be justified in refusing him relief.