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D.S. Duraiswamy Naidu Vs. A.M. Muhammad Abbas Sahib - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 203 of 1947
Judge
Reported inAIR1952Mad678; (1950)2MLJ773
ActsTransfer of Property Act, 1882 - Sections 55 and 55(4)
AppellantD.S. Duraiswamy Naidu
RespondentA.M. Muhammad Abbas Sahib
Appellant AdvocateN. Gopala Menon, Adv.
Respondent AdvocateV.C. Veeraraghvan, Adv.
DispositionAppeal dismissed
Cases ReferredMuthiah Chetti v. Sinna Velliam Chetti
Excerpt:
- - . it is obviously inequitable in the absence of express and distinct stipulation that either party to the contract should at one and the same time enjoy the benefits cowing from possession of the property and those flowing from possession of the purchase money......he had kept the house vacant and permitted a retired sub-inspector and his family to live in the suit house as care takers. but it is also clear from the evidence that p. w. 1 himself kept in an upstair room of this house under lock and key, his box, his bedding and a gun which he removed only on 23-11-1946, i.e., a fortnight after the key was so handed over to the defendant. in this state of the evidence, we must hold that the plaintiff continued to be in possession of the suit building till 8-11-1946. we have no doubt that the idea of the sub-inspector being a care-taker is an after thought and that it is only an ingenious attempt to get over the fact that the plaintiff continued to be in possession of the building. 3. the question of interest on the unpaid purchase money is governed.....
Judgment:

Subba Rao, J.

1. This is a plaintiff's appeal against the decree and judgment of the Subordinate Judge of Dindigul in O. S. No. 46 of 1945 in so far as the decree was against him. The plaintiff sold to the defendant a house in Dindigul. The sale-deed is dated 22-8-1945 and was got compulsorily registered on 1-10-1945. The suit was filed for recovery of a sum of Rs. 15,500 being the balance of the unpaid purchase money due to the plaintiff under that sale-deed with interest thereon. The defendant contended that the plaintiff made default and that, in any view, the plaintiff would not be entitled to interest for the period before the defendant was put in possession of the property sold to him. The learned Subordinate Judge, on a consideration of the evidence, held that there was no default on the part of the plaintiff in respect of the delivery of possession and therefore the suit for recovery of the balance of the purchase money was maintainable; buthe gave interest to the plaintiff only from 8-11-1946 when the defendant was put in actual possession. The plaintiff contends that the said order was wrong and that he would be entitled to interest from the date of the sale, or at any rate, from the date when the defendant refused to take possession.

2. It is clear from the evidence that the plaintiff handed over the key of the house to the defendant only on 8-11-1946 during the pendency of the suit. But the plaintiff's case is that he was ready and willing to put the defendant in possession from the date of the sale-deed itself and that indeed, he had kept the house vacant and permitted a retired sub-inspector and his family to live in the suit house as care takers. But it is also clear from the evidence that P. W. 1 himself kept in an upstair room of this house under lock and key, his box, his bedding and a gun which he removed only on 23-11-1946, i.e., a fortnight after the key was so handed over to the defendant. In this state of the evidence, we must hold that the plaintiff continued to be in possession of the suit building till 8-11-1946. We have no doubt that the idea of the sub-inspector being a care-taker is an after thought and that it is only an ingenious attempt to get over the fact that the plaintiff continued to be in possession of the building.

3. The question of interest on the unpaid purchase money is governed by Section 55(4)(b) of the Transfer of Property Act. It reads:

'The seller is entitled, (b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase money, to a charge upon the property in the hands of the buyer, any transferee without consideration, or any transferee with notice of the non-payment for the amount of the purchase money, or any part thereof remaining unpaid and for interest on such amount or part from the date on which possession has been delivered.'

The words are clear and unambiguous, and do not lend scope for any argument. The plaintiff would be entitled only to interest from the date on which possession has been delivered. In this case, as possession was delivered only on 8-11-1946, the plaintiff would be entitled to interest only from that date. The words 'from the date on which possession has been delivered' after the words 'interest on such amount or part' have been added by the Amending Act XX (20) of 1929. Even on the section as it stood before the amendment, this Court held in 'Muthiah Chetti v. Sinna Velliam Chetti', 35 Mad 625, that Section 55(4) of the Transfer of Property Act does not give the vendor an absolute title to interest in all cases' irrespective of equities, and that interest on the purchase money cannot be claimed so long as the vendor remains in possession of the property sold. The reason of the rule is stated at page 627 as follows:

'As observed in Fry on Specific Performance, page 591, 4th edn.. it is obviously inequitable in the absence of express and distinct stipulation that either party to the contract should at one and the same time enjoy the benefits Cowing from possession of the property and those flowing from possession of the purchase money. The estate and the purchase money are things mutually exclusive.'

The Amending Act accepted this principle and embodied it in the section.

4. The judgment of the learned Subordinate Judge is correct and the appeal is dismissedwith costs.


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