Sadasiva Ayyar, J.
1.The plaintiff is the appellant before us. He sued for a declaration that the judgment-debtor, the sixth defendant, was the owner of the plaint property and that the plaint property was therefore liable to be attached and sold in execution: of the decree which the plaintiff has obtained against the sixth defendant. The defendants 1 to 5 plead that the sixth defendant had lost his title to the plaint property by reason of the, sixth defendant having orally transferred the plaint land worth much more than Rs. 100 to one Arumuga Padayachi in 1900 the sixth defendant having obtained from the said Arumuga Padayachi Arumuga Padayaehi's own land by way of exchange. The land which the sixth defendant so obtained in exchange has been conveyed by him to strangers in 1901 (see Exhibits I and III). The present suit was brought about ten years after the exchange transaction of 1900. The plaintiff contended that the oral exchange by which the sixth defendant is alleged to have lost title to the plaint lands in favour of Arumuga Padayachi did not validly transfer the sixth defendant's title to Arumuga Padayachi (whose brothers, nephew and sons are the defendants Nos. 1 to 5). The plaintiff relied upon Section 118 of the Transfer of Property Act, which provides that a transfer of a property by way of exchange can be made only in the manner provided for the transfer of such property by sale in Section 54 which section requires a registered instrument for sale of immovable property of the value of Rs. 100 and upwards. The defendants Nos. 1 to 5 tried to meet this objection of the plaintiff by contending that as the sixth defendant is unable now to give back the lands which he himself got by oral exchange from Arumuga Padayachi owing to the sixth defendant having conveyed them away to strangers under Exhibits I and III the sixth defendant is estopped from pleading that the oral exchange is invalid; as the sixth defendant is so estopped, his decree-holder (the plaintiff) is, it is contended, similarly estopped. The Munsif decreed the plaintiff's suit relying upon the Full Bench decision in Kurri Veerareddi v. Kurri Bapireddi I.L.R., (1916 Mad., 336. That case decided that the provisions of Section 54 of the Transfer of Property Act are imperative and cannot be disregarded on grounds based upon mere equitable considerations. The Appellate Court (the Subordinate Judge of Mayavaram) relying upon Ram Bakhsh v. Mughlani Khanam I.L.R., (1904) All., 266, Karalia Nanubhai V. Mansukhram I.L.R., (1900) Bom., 400, on Section 40 of the Transfer of Property Act, Section 91 of the Trusts Act, Section 120 of the Transfer of Property Act, and Section 55, Clause (b) of the Transfer of Property Act, held that the sixth defendant had no attachable interest in the property and dismissed the plaintiff's suit with costs.
2. The contention in second appeal is that the Subordinate Judge was wrong in his view of the law. I think that Ram Bakhsh v. Mughlani Khanam I.L.R., (1904) All., 266 and Karalia Nanubhai v. Mansukhram I.L.R., (1900) Bom., 400 cannot be treated as good law in the Madras Presidency having regard to the decision of the Fall Bench case in Kurri Veerareddi v. Kurri Bapireddi I.L.R., (1906) Mad., 336. Karalia Nanubhai v. Mansukhram I.L.R., (1900) Bom., 400 might also be distinguished on the ground that in that case, the vendee, the person who had entered into a contract of purchase with the judgment-debtor, had not lost his right to enforce specific performance on the date of the attachment. The contract was then an existing contract in the words of Section 91 of the Trusts Act,
3. As regards estoppel, no estoppel can be pleaded against the directions and prohibitions enacted by the Statute Law and against the rights accruing to any party by reason of such directions and prohibitions. As regards Section 55, Clause 6(b) of the Transfer of Property Act, it no doubt gives a charge for the purchase money paid in favour of the purchaser under a contract of sale on the property contracted to be sold, if the sale goes off without default on the part of the purchaser. It is argued that as Section 120 of the Transfer of Property Act gives to a party to an exchange transaction similar rights as if he was a seller or buyer in a sale transaction, the defendants Nos. 1 to 5 have a charge upon the plaint property to the extent of the price of that property at the time of the exchange transaction, and that if this suit is decreed in the plaintiff's favour, that is, if the plaintiff is declared to have the right to attach and bring the plaint property to sale in execution of the decree against the sixth defendant it should be further declared in favour of defendants Nos. 1 to 5 that they have got a charge upon the plaint property to the extent of the price of such property on the date of the exchange transaction in 1900.
4. In the first place, it seems to me that, having regard to the definition of exchange in Section 118 of the Transfer of Property Act, no question of money or purchase money is involved in a transaction of exchange and hence the charge created for purchase money under Section 55, Clause 6(b) of the Transfer of Property Act cannot arise in the case of an exchange transaction.
5. In the next place, defendants Nos. 1 to 5 did not make any claim in their written statement to this alternative relief of a charge being declared in their favour if the exchange transaction be held invalid by the Courts, nor have they raised this point in the Memorandum of Appeal to the Subordinate Court.
6. In the third place it is very doubtful whether they could be allowed now to amend their pleadings so as to raise that question of charge as their right to enforce the said charge is probably now barred by limitation because if any legal charge which could be relied on was ever created it must have been created in 1900 and we are now in 1913.
7. Lastly, I am not sure that to a suit for ejectment the defendant could plead a mere charge and whether the defendant who has got a mere charge ought not to be relegated to his own suit to enforce the charge after paying proper Court fees on his plaint instead of being allowed as defendant to impose conditions on the plaintiff as a preliminary to the plaintiff's being given a decree in ejectment. As regards the last point, however, I must admit that there are observations in the case in Muthe Venkatachellapathy v. Pyinda Venkatachellapathy : (1912)23MLJ652 which are in the defendant's favour. However, on the grounds Nos. 1 to 3 which I have enunciated above, the defendants 1 to 5 cannot obtain a declaration in their favour of a charge for any money, that is, for the probable price (unsatisfactorily and roughly ascertained by evidence after ten years) on the date of the exchange in 1900. In the result the Lower Appellate Court's decree will be set aside and the Munsif's decree restored. As this is a hard case for the defendants 1 to 5, I would make no order as to posts in the Lower Appellate Court and in this Court.
Spencer, J.
8. I agree with the conclusions of my learned brother. I have only to add that the decisions on which the Lower Appellate Court relied can be distinguished from the present case. Ram Bakhsh v. Mughlani Khanam I.L.R., (1906) All., 266 was a case in which certain immoveable property was delivered in satisfaction of a Muhammadan widow's decree for dower. The Allahabad High Court has in several cases shown a reluctance to apply the provision of Section 54 of the Transfer of Property Act strictly to sales between Muhammadans, knowing that under Sonni law payment of price accompanied by delivery of possession constituted a complete transfer without the execution of any document, vide Section 820 of Gour's Law of Transfer in British India.
9. In Karalia Nanubhai v. Mansukhram I.L.R., (1900) Bom., 400 the Court treated the judgment-debtor as holding the property in trust for the person who had purchased from him. A conveyance was executed and registered under a decree for specific performance, thereby perfecting the purchaser's title before the suit for declaration of the judgment-creditor's right to attach was decided in the Court of First Instance.
10. Section 55 of the Indian Transfer of Property Act being founded mainly on the provisions of the English Conveyancing Act of 1881, I doubt if Clause 6(b), which deals with the buyer's lien, can properly be applied to an exchange of immoveable property notwithstanding Sections 119 and 120. In Volkart Brothers v. Vettivelu Nadan I.L.R., (1988) Mad., 459 a claim based on an agreement to exchange goods in the shape of cotton was allowed on the ground of trade usage, but usages and custom of trade are specially excepted by Section 1 of the Indian Contract Act, and the property in dispute in that case being moveable was governed by Chapter VII of the Indian Contract Act, which deals with the sale of goods and corresponds with the provisions of the Sale of Goods Act in England.