MUTHUSAMI IYER Vs. DHARMA RAJA

JUDGEMENT

(1.) The adoptive father of plaintiff-appellant in this case sold certain property to the defendant in 1912. One item of property was apparently in the possession of one Veerappa Naidu and, as a matter of fact, the defendant did not get possession of that item until after filing a suit against him and the plaintiff, possession being obtained shortly after the present suit was filed. One item of consideration for the sale deed was a sum of Rs. 400 payable to plaintiff's creditor, Muthayya Chetti and this amount was admittedly not paid by the defendant. Muthayya Chetty eventually filed a suit against the plaintiff and obtained a decree for Rs. 340 in 1917. The plaintiff now seeks to recover from the defendant damages which he has suffered owing to the defendant's non-payment of this portion of the sale price. The District Munsiff gave, a decree for the amount, but the Subordinate Judge in appeal held that inasmuch as the father of the plaintiff had contracted to give possession to the defendant of all the items sold and had failed to give possession of one item, plaintiff was only entitled to a refund of the purchase money with interest from the date on which the defendant actually got into possession. From that amount he allowed the defendant to deduct Rs. 150 said to have been incurred by him for the expenses of his suit against Veerappa Nayudu.

(2.) In coming to his conclusion he has relied partly on an oral agreement pleaded by the defendant namely, that Eupees 400, due under the sale deed, was not to be payable until the defendant got possession of the whole land. This oral agreement is inconsistent with the terms of the registered sale deed and consequently under Section 92 of the Evidence Act cannot be proved in this case. On this ground alone it might be held that the Subordinate Judge's finding is not justiliable, but he has also relied on the provisions of Section 55, Clause 2 of the Transfer of Property Act. That runs as follows: The seller shall be. deemed to contract with the buyer that the interest which the seller professed to transfer to the buyer subsists.

(3.) The Subordinate Judge has held that under this clause the sale deed executed by the father of the plaintiff must be deemed to contain a contract to put the defendant in possession of the property. There is no such contract in terms in the document and the provision that the vendee shall be put into possession cannot be said to come under Section 55, Clause2, which refers to the interest professed to be transferred. In this case the interest which, the plaintiff's father professed to transfer was the absolute right to the property. It has been found that that right was subsisting on the date of sale and that the plaintiff's father had power to transfer it. The discussion, therefore, in the Subordinate Judge's , judgment, with reference to this contract to put the defendant in possession is hardly relevant to the present suit.