1. These two appeals arise out of the same transaction. Second Appeal No. 1644 of 1913 is a suit by a purchaser to compel the seller to execute a proper sale-deed for the land which he purchased in 1906 under a sale-deed which was not registered.
2. The Appellants' main contention is that the verbal agreement between the parties in October 1909 to execute a fresh sale-deed is not capable of being enforced, as it is devoid of consideration.
3. It has been found by the Subordinate Judge that over and above the Rs. 200 which formed the consideration for the original sale-deed of 1906, which remained unregistered owing to the sickness of the vendee, Rs. 25 were paid at some date subsequent to the execution of that sale-deed.
4. This sum will serve as sufficient consideration for the later agreement; but it is argued that the Subordinate Judge's conclusion that this was paid as an inducement to execute a fresh deed was not warranted by the evidence. It is true that plaintiffs' witnesses Nos. 1 and 2 do not in so many words state that the Rs. 25 formed the consecration for the agreement of 1969, but I think that this inference could fairly be drawn, as the Subordinate Judge has drawn it, from the fact that the stamp on Exhibit C, the paper on which the second sale-deed was to be written, was a three rupees stamp, whereas Exhibit A was drawn up on a two rupees stamp which was appropriate for the original consideration of Rs. 200. This fact also indicates that the payment of Rs. 25 described as gratuitous was not intended by the parties to give rise to no obligation, moral or legal, on either side. Moreover, it is the duty of every seller of immoveable property to secure his purchaser in quiet and peaceable enjoyment of the subject of the sale. This obligation cannot be considered as discharged by the mere signing of the sale-deed, but will continue until the purchaser has got an indefeasible title to the property which the seller purported to convey. Even in the absence of the payment of the additional sum of Rs. 25, I should be prepared to hold that there was consideration for the contract to execute a fresh sale-deed. In this view of the case, it becomes unnecessary to deal further with the questions whether the verbal agreement of 1904 was fully performed and whether its enforcement is now barred by limitation. The appellants' case has no merits, but is an unscrupulous attempt to take advantage of the respondent's failure, owing to the sickness and the death of the original purchaser, to get his sale deed registered within the time allowed by the Registration Act.
5. This second appeal must be dismissed with costs.
6. In Second Appeal No. 1645 of 1913 the seller seeks to treat the purchaser as trespasser, to eject him and to recover mesne profits from him during his occupation. He alleges that no consideration was paid for the sale of 1906 and relies on the fact that the sale-deed was not registered.
7. In Kurri Veerareddi v. Kurri Bapireddi 1 M.L.T. 158 : 29 M.P 336 : 16 M.L.J. 395 the question was considered by a Full Bench whether a contract of sale followed by delivery of possession could, when there was no registered same-deed, be pleaded in defence to an action for ejectment, and the question was answered in the negative. It was pointed out, however, by two of the learned Judges that the defendant could avoid the difficulty by suing for specific performance and getting the action in ejectment postponed ponding the result of his suit. That is exactly what has been done in this case, and I have no difficulty, therefore, in deciding that the issue of this suit must follow the result of the suit for specific performance and that this second appeal must be dismissed with costs.
8.In Second Appeal No. 1644 of 1913, I agree and I only desire to add a few words in deference to the very able argument advanced on behalf of the appellants by Mr. Krishnaswami Aiyar. He very frankly and, in my opinion, very wisely admitted that his clients' case on the facts as found was devoid of merits and rested wholly on contentions of law. That admission makes it only the more incumbent on us to see that full effect is given to his strict legal rights. In order to ascertain what they are, it is necessary to go carefully into the facts of the case. The facts of the case are as follows: In 1904 there was an agreement by the 1st defendant to sell the lands in dispute to Periana Gounden, the plaintiffs' predecessor-in-title, for a sum of Rs. 200. Possession was given under that contract to the purchaser and the 1st defendant has been out of possession ever since. The purchase price was paid and a sale-deed was executed on the 2nd October 1906. That document was handed to the purchaser, but for reasons which are now immaterial, it was never registered according to to law. It was argued for the appellants that the transaction was then complete and that the 1st defendant had done all that was required of him and that Rs. 200, which was the consideration for that transaction, was exhausted by it and conl. not be further pleaded in aid to support any later transaction. With those contentions I agree. I do not think the vendor was under buy obligation to register the document which he had given and if the matter stopped there, I think the plaintiff's suit would fail on the grounds that he had no legal title perfected by registration and that any suit to enforce that contract would be barred by limitation. But the matter did not stop there. It is clear that at some time or other between October 1906 and October 1909, the 1st defendant promised to execute a new sale-deed so as to make good the title of the purchaser. It is said that for that agreement there was no consideration and that in so far as the lower Court has purported to find that there was consideration, that finding is unsupported by any evidence.
9. Now the last date for registration of the original sale-deed (Exhibit A) was March 1907 and Perianna Gounden, the original purchaser died in October 1967. At some period before his death Perianna Gounden unquestionably paid the 1st defendant a further sum of Rs. 25. An expression is used which is said to indicate that that was a gift; but I do not think that that expression can be pressed to mean more than this: that it was a payment which he regarded as being one that he was under no moral obligation to make or do. I think on the known facts of the case there was no moral obligation on him to pay it. In October 1909 a stamp for Rs. 3 was purchased, it is not material by whom, out of moneys provided by the plaintiffs and that stamp would be the requisite stamp on a sale for consideration of Rs. 225. Now on that the learned Judge in the lower Appellate Court came to the following conclusions which are to be found on page 17 of the printed pleadings paper. He says thus: If the paper, that is, the stamp, was purchased in accordance with the agreement of October 1909, there would appear to be no reason to doubt that the 1st defendant himself purchased it.' That I think is an indication that he was prepared to find that the stamp was purchased in accordance with the new agreement. He goes on: 'There is also evidence that as an inducement to 1st defendant to execute a fresh sale-deed he was even paid an extra sum of Rs. 25 over and above the price of Rs. 200 already paid. This extra sum of Rs. 25 was obviously intended as a consideration for the fresh agreement and it is probable, therefore, that as it did not form part of the original agreement it was not considered necessary to mention it, either in the plaint or in the criminal proceedings. That a stamp paper of the value of Rs. 3 was purchased lends some support to this payment of Rs. 25 and probably the parties intended to bring about a sale-deed for Rs. 225.' Now it is said that that finding is unsupported by the evidence. I, therefore, turn to what the evidence in regard to that matter is. We find it in the depositions of two on behalf of the plaintiffs, witness No. 1 and witness No. 8 for the plaintiffs. Plaintiffs' witness No. 1 says this: 'As the time for registration was over, I asked 1st defendant to buy a fresh stamp paper for Rs. 3 and gave him Rs. 3 and he bought a stamp paper and gave it to us: he gave us this stamp. My brother's wife paid Rs. 3 to 1st defendant. We agreed to pay him Rs. 25 in excess as a present (that is the translation of the Tamil word 'enamaga') and my brother paid him Rs. 25, it appears. As we refused to sell some other property to 1st defendant and sold it to a parian as previously agreed, he refused to execute a fresh sale-deed.' And plaintiffs' witness No. 8 on page 34 of the printed documents paper says this: Then 1st defendant agreed to execute a fresh sale-deed in respect of the plaint lands on our advising him to do so, and so Muthammal paid me Rs. 3 for a stamp-paper and I paid it to 1st defendant;' and then in cross-examination he says, 'I was told by my sister that Rs. 25 was paid in addition to Rs. 200 and I said that three rupees stamp must be purchased.' I agree with the contention of the learned Pleader for the appellants that this is clearly not evidence, and I do not think we need pay any attention to it in the absence of any means of knowing what question was put to elicit that answer. But it is not difficult from the other evidence to conclude that something of the sort must hare happened.
10. Now reading that evidence, what is the proper inference to be drawn from it? I think the proper inference to be drawn is this: that sometime between March 1909--before that date there would be no object in paying a further sum of money to get the document registered in accordance with the original agreement--and his death in October 1909 the original purchaser, Perianna Koundan, paid Rs. 25 to the 1st defendant in order to induce him to execute a new document of title and that he agreed to do so; that that agreement remained in force and unexecuted until the purchase of the three rupees stamp was made in October 1909. I think that there was good consideration for that fresh agreement and that the 1st defendant first definitely broke it when he refused to make use of the stamp provided for the purpose and execute a fresh sale-deed in October 1909. I think that the plaintiffs' right to sue on this agreement accrued on that date and that therefore, the suit which was filed on the 26th July 1910 is not barred by limitation. I therefore, agree that the appeal fails and must be dismissed with costs.
In Second Appeal No. 1645 of 1913.
11. With regard to the appeal in the other suit, so far as the claim for possession of the property is concerned, in view of the decision in the earlier suit any relief of that kind at this date would obviously be useless and futile; and, therefore, this appeal resolves itself into a claim for mesne profits in respect of the claim for possession during the period when the purchaser had no legal title to the land. It may be conceded for the purposes of the argument that the appellants were entitled to possession and, therefore, by the Transfer of Property Act, would in the ordinary course be entitled to the rents and profits of the land. That seems to be the effect of the decision in Kurri Veerareddi v. Kurri Bapireddi 1 M.L.T. 158 : 29 M.P 336 : 16 M.L.J. 395 and though doubts have been cast upon that decision, it is not necessary to question its authority for the purpose of the present case. But a decree for possession would be, as I said, futile; and so the appellants only claim mesne profits. The essence of a claim for mesne profits is this: that it rests upon an agreement implied in law that when one person occupies property of another, he must be-deemed to have tacitly assented to the condition that he is liable for an occupation rent in respect of that occupation. Now the facts here are quite inconsistent with any such implied obligation at all, The appellant knew perfectly we]l the exact relation between himself and the person to whom he had agreed to sell the land. He knew that he was under a moral obligation not only to allow him to have possession, but to perfect his title to that possession by the execution of the necessary documents, and I think it is impossible to say that, such being the circumstances under which the possession was taken, there was an implied agreement between them that he should pay mesne profits in respect of an occupation to which, to the knowledge of both the parties, he was clearly morally entitled and only required the formal execution of a document.
12. I think that this appeal also fails and should be dismissed with costs.