BALUSU VEERARAGHAVALU Vs. BOPPNA MANIKYAM

JUDGEMENT

(1.) The facts of the case are practically undisputed. The father-in-law of the 1st defendant purchased from a Hindu widow certain properties. He gave them in exchange for some other properties to the brother of the 1st plaintiff. A reversioner of the Hindu widow sued to set aside the original alienation. After some contest, the plaintiffs entered into a compromise with him by which they retained a portion of the properties exchanged on payment of a further consideration to the reversioner. There is no question of want of honesty or of diligence on the part of the plaintiffs in entering into this compromise. The Subordinate Judge has found that point in favour of the plaintiffs.

(2.) The suit is brought in the alternative either for the restoration of the lands which the 1st plaintiff s brother gave in exchange or for compensation for breach of warranty of title. In this second appeal we are only concerned with the second relief. The exchange is evidenced by an unregistered document of the 25th September 1880, two years before the Transfer of Property Act was passed. No question of its admissibility in evidence has been argued. The only point for consideration is whether there was an implied warranty of title at the time of the exchange.

(3.) It is clear that after the Transfer of Property Act, there would be a warranty of title. It is also clear that up to the passing of the Real Property Act of 1845 (8 & 9 Vic. Ch. 106), there was an implied warranty of title in England in regard to exchanges. As pointed out in Stephen s Commentaries on the Laws of England, Vol. 1, page 410, before the Statute of Frauds, no writing was necessary to evidence an exchange. By the common law of England, all that was necessary to effect an exchange was that there should be mutual taking of possession. In Coke on Littleton, Vol. 1, Sections 64 and 65, the common law of England as to Exchange is thus stated:--"So alwaies it behoveth that in exchange, the estates of both parties be equall viz., if the one has a fee simple in the one land, that the other shall have like estate in the other land ; and if the one hath fee taile in the one land, the other ought to have the like estate in the other land, &c. and so of other estates." And this statement as to equality is thus commented upon. Equality in lands is threefold, viz., first, equality in value; secondly, equality in quantity of estate given and taken ; thirdly equality in quality or manner of the estate given and taken. As a corrollary from this statement of law it was held in a very early case known as Bustard s case (1602) 4 Co. 121(a) that title was warranted by the parties to the exchange. The report says, " and after many arguments at the bar and bench in divers several terras, it was adjudged for the plaintiff; and in this case four points were resolved per totam curiam : 1. That in every exchange lawfully made, this word excambium implies itself tacite a condition and also a warranty, the one to give reentry and the other voucher and recompence and all in respect of reciprocal consideration, the one land being given in exchange for the other: but it is special warranty, for upon the voucher, by force of it, he shall not recover other land in value, but that only which was by him given in exchange ; for inasmuch as the mutual consideration is the cause of the warranty, it shall therefore extend only to land reciprocally given and not to other land ; and this warranty runs only in privity, for none shall vouch by force of it but the parties to the exchange, or the heirs and no assignee ; but the assignee shall rebut by force of it, although the exchange was without deed." According to this statement of the law, there can be compensation for breach of warranty, or re- entry on the land exchanged and the right to these reliefs can be exercised only by the parties or their heirs ; but it cannot be assigned or devised, Attorney General v. Vigor and Ors. (1803) 8 Ves 256. It may be necessary to mention that the Statute of Frauds (29 Charles II Chapter IV, Section 1) considered writing necessary to evidence an exchange. None the less, it was held in the Equity Courts that if the exchange was completed by possession, a good title passed. Sec 24 Halsbury 295 (cases quoted at foot-note Q). By Section 3 of the Real Property Act of 1845, a deed was required to effect a conveyance, a partition or an exchange. The same Act declared that there was no warranty of title on an exchange. This Act applied only to England and not to Ireland or Scotland. This summary of the state of law in England necessitates the consideration whether before the Transfer of Property Act was passed in this country, the common law of England was in force or the Statute law embodied in the Act of 1845.