1. The facts are not in dispute. Sitaram Dikshitar, the father of the third defendant, owned S. No. 199/1. Sami Aiyar, the grandfather of defendants 1 and 2, owned S. No. 227/3 and 227/2. Sitarama Dikshitar and Sami Aiyar effected an exchange of their properties under Ex. P-2 in 1901. Subsequently, the father of defendants 1 and 2 sold S. No. 199/1 to the plaintiff. The plaintiff was dispossessed of S. No. 199/1 under the decree in O.S. No. 53 of 1932 in 1940 by a person who claimed superior title. The plaintiff then laid this suit to recover possession of S. No. 227/3 and 227/2 from the 3rd defendant and his alienee, the fourth defendant. The learned District Munsif dismissed the plaintiff's suit on the ground that Section 119 of the Transfer of Property Act, as it stood at the time of exchange, evidenced by Ex. P-2 of 1901, did not entitle the plaintiff, who was himself not a party to the contract of exchange, to recover the property exchanged. The learned Subordinate Judge on appeal reversed the decree of the trial Court and decreed the plaintiff's claim on the ground, that Section 120 of the Transfer of Property Act read with Section 55 (2) of the Transfer of Property Act enabled the plaintiff as the representative in interest of Swami Aiyar to recover possession of the property. Hence this second appeal.
2. Section 119 of the Transfer of Property Act before it was amended in 1929 ran:
In the absence of a contract to the contrary, the party deprived of the thing or part thereof 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.
The learned advocate for the appellant was right in his contention, that Section 120 of the Transfer of Property Act, on which the learned Judge relied, cannot be construed to confer on an assignee of the ' party ' within the meaning of Section 119, rights which Section 119 conferred on that party, because Section 120 itself runs:
Save as otherwise provided in this Chapter, each party has the rights, and is subject to the liabilities, of a seller as to that which he gives, and has the rights, and is subject to the liabilities of a buyer as to that which he takes.
Section 119 is a provision ' otherwise ' within the meaning of Section 120 of the Act. What Section 119 conferred was a statutory right on a party to a contract to claim recovery of the very property he had parted with. In Chidambara Thevar v. Swaminatha Rao : AIR1940Mad426 , the liability to return the property was enforced against an assignee of one of the parties to the original exchange, but the plaintiff who claimed the return of the property was himself a party to that exchange. I am unable to see any justification to extend the scope of Chidambara Thevar v. Swaminatha Rao : AIR1940Mad426 , to a claimant who is himself not a party to the exchange but only a representative in interest of that party. The specific right conferred by Section 119 of the Transfer of Property Act as it stood before 1929 no doubt carried with it a liability which could be imposed on the other side; but I am unable to hold that the liability which was implied was co-extensive with the right created by Section 119. That the liability could be transferred and be enforced against an assignee from a party to a contract of exchange does not necessarily imply that the assignee from a party who seeks to enforce the right to recover the property can, despite the plain wording of Section 119, claim such a right.
3. To repeat, the plaintiff in the case decided in Chidambara Thevar v. Swaminatha Rao : AIR1940Mad426 was himself a party to the contract and was, therefore, a person specifically within the scope of Section 119 of the Transfer of Property Act with a specific right to ask for the return of the property he had given in exchange.
4. In Srinivasa Aiyangar v. Johnsa Rowther I.L.R. (1919) Mad. 690, neither of the parties to the suit was a party to the original contract; but what the learned Judge held in that case was ' the covenant in this case is in the nature of a condition subsequent and the action is based on a breach of that condition.' The covenant itself was:
Should there arise any dispute in the matter of enjoyment of the properties specified in the deed of exchange, each shall enjoy as before their respective lands.
Section 119, it should be remembered, confers a right on the party to the contract to recover the property exchanged only in the absence of a contract to the contrary. There was such, a contract to the contrary and the right and liability enforced in that suit were those that flowed from the contract and not the.statutory right conferred on the parties to the contract by Section 119 of the Transfer of Property Act.
5. In my opinion the language of Section 119 as it stood before its amendment in 1929 is clear and is a specific bar to the plaintiff's claim since the plaintiff himself was not a party to the deed of exchange, Ex. P-2.
6. The next question is, is there anything in Ex. P-2 which can be construed to be a contract to the contrary within the meaning of Section 119 of the Transfer of Property Act The learned advocate for the respondent pointed out that what Sitarama and Sami Ayyar purported to exchange were lands, ' with all the rights and privileges therein.' In the latter portion of Ex. P-2, the provision was:. each of the aforesaid persons shall respectively hold and enjoy, according to the recitals of exchange aforesaid, the lands allotted to them, with all rights and privileges, so long as the sun and the moon last, from son to grandson and so on in succession, and with the powers of alienation, such as gift, exchange, sale, etc....
I am unable to hold that this provision in that contract, Ex. P-2, is in any way analogous to the contract which the learned Judges had to consider in Srinivasa Aiyangar v. Johnsa Rowther I.L.R. (1919) Mad. 690, or that the provision in Ex. P-2 is a contract to the contrary within the meaning of Section 119 of the Transfer of Property Act. We are here concerned with the right of a party to invoke a specific statutory right created by Section 119; that this right can be independent of rights that flow from a contract to which the rights and liabilities of seller and buyer might be traceable is obvious and seems to be specifically provided in Section 119 itself, which refers to ' a contract to the contrary.' I am unable to hold that the reference to rights and privileges in Ex. P-2 import into that document anything more than the ordinary statutory right of a buyer and seller, or that it amounts to a contract to the contrary within the meaning of Section 119 of the Transfer of Property Act.
7. Thus, the position is, the plaintiff cannot claim the statutory right under Section 119 because he was not himself a party to the contract; he cannot claim any contractual right because there was no specific provision in the contract; and the statutory right of buyer and seller created by Section 55(2) of the Transfer of Property Act is outside the scope of Section 119 of the Transfer of Property Act.
8. The appeal is allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court is restored with costs of the appellant here and in the lower appellate Court. (Leave is refused.)