1. This appeal raises the question of the effect of Section 119, Transfer of Property Act, as it stood before the amendment introduced in 1929. The facts are simple. The plaintiff was the owner of the land in A schedule. The first defendant was the owner of the land in B schedule. On 20th February, 1916, under Ex. A they effected an exchange whereby the plaintiff got schedule B and the first defendant got schedule A. In the deed of exchange each of them describes himself as the owner of the land given in exchange and there are no special covenants excluding the operation of Section 119, Transfer of Property Act. On 24th May, 1916, the first defendant sold the A schedule land which he had got by the exchange to one Nagammal, who on 6th July, 1922, sold the same land to the brother of the second defendant, who is the appellant here. Actually the plaintiff found that part of the B schedule land which he had got by the exchange was included in a big mortgage and the mortgagee got a decree. Under that decree some of the items in B schedule were sold in Court auction to a third party and the plaintiff was dispossessed on 23rd February, 1931. Consequently he filed the suit in which he claims the return of the A schedule properties and expresses his willingness to surrender the balance of B schedule properties still in his possession.
2. Now the law on the subject has been fully discussed by the learned Subordinate Judge with whose conclusions I agree. He follows the decision in Sreenivasa Aiyangar v. Johnsa Rowther I.L.R.(1919) 42 Mad. 690, and holds that the transferee can get no better title than that which his transferor had and that therefore the second defendant must be deemed to have taken this land subject to the liability which bound the first defendant to give back the land if the property which he had given in exchange for it to the plaintiff was lost. Section 119 before the amendment merely says that in the absence of a contract to the contrary, the party deprived of the thing or part thereof which he has received in exchange, by reason of any defect in the title of the other party, is entitled at his option to compensation or to the return of the thing transferred by him. Granted that this section does not explicitly say that the transferor is entitled to the return even when the property has passed into the hands of an innocent purchaser, there is nothing in the section which rules out such a contingency. The view taken by the Bench which decided Sreenivasa Aiyangar v. Johnsa Rowther I.L.R.(1919) 42 Mad. 690, has so far as I am aware, never been dissented from, in this Court. There are, however, three cases of other Courts which have been quoted before me as authority for the opposite view. The decision in Samar Bahadur Singh v. Jit Lal I.L.R.(1924) 46 All. 359, really is beside the point as it deals only with Section 120, Transfer of Property Act, and does not consider the wording of Section 119. There are two decisions of single Judges Ganga Singh v. Ragho Ram A.I.R. 1934 Lah. 934 (2) and Sujatkhan v. Nazafali , in which a view different from that of this Court has been adopted, that is to say, the view that Section 119 prior to the amendment contemplated only the liabilities of the actual parties to the exchange and did not contemplate the imposition of any liability on an innocent purchaser. That is, of course, substantially the result of the amendment to the section, but I do not think that the original section should be interpreted in the light of the subsequent change in the law. I am bound by the decision in Sreenivasa Aiyangar v. Johnsa Rowther I.L.R.(1919) 42 Mad. 690, which is against the view for which the appellant contends. I may remark that Gour's Transfer of Property Act takes the opposite view but he quotes no authority at all in support of it. I must therefore on the authorities as they stand uphold the view of the learned Subordinate Judge.
3. A further contention is that the case will be governed by the amended Section 119 because the dispossession of the plaintiff was in February, 1931, after the new Act came into force. Here again I must decide against the appellant. Section 63 of the Amending Act lays it down that Section 59 which amends Section 119 shall not affect the terms of incidents of any transfer of property made or effected before the first day of April, 1930, or any right, title, obligation or liability acquired, created or incurred before such date. It seems to me that the contract of exchange must be taken to have as an implied term the provision of law governing the contract at that time. It also seems to me that by the contract, the plaintiff must be deemed to have acquired a right to work out his remedy of restoration, as against the transferee and those claiming under him, in the contingency of his being dispossessed at some future date. The governing date will not be the date of dispossession, but the date upon which the right was acquired and that is, in my opinion, the date of the contract.
4. In the result therefore I dismiss the appeal with costs. Leave to appeal is granted.
5. Leave granted.