(1.) THIS is an appeal by the defendant against a decree of the 2nd Additional District Judge, Jabalpur, dated 22nd June 1964, affirming a decree of the Court of the First Additional Civil Judge, Class II, Jabalpur. S.A. No. 563 of 1964 decided on 8-12-1967 against the decision of M.P Bhatnagar, Second Addl. D.J., Jabalpur, dated 22/26-6-1964, in CA. No. 7-B of 1964 modifying the decree of P.B. Kerhalkar, First Addl. C.J., Class II, Jabalpur, dated 11-7-1963, in CS. No, 97-B of 1962,
(2.) THE facts no longer in dispute are: One Pannalal purchased a house from Smt. Padmavati and Deoraj, and executed an agreement for reconveyance. In due course, the vendors brought a suit for specific performance and obtained a decree for reconveyance against Pannalal. By a deed dated 4th February 1961, the vendors assigned their right, thereunder in favour of the present plaintiffs, Chhedilal and Phoolchand who started proceedings in execution. THE present defendant Pannalal raised various objections to the assignment, namely that the deed was bogus, sham, fictitious and inoperative and objected that the plaintiffs Chhedilal and Phoolchand had no right to execute the decree. THE executing Court upheld the assignment and its order was affirmed in appeal by the Second Additional District Judge, and later by this Court. In execution of the decree a deed of reconveyance was ultimately executed on 30th April 1962 by the Court in favour of the plaintiffs. During this period, the defendant admittedly recovered rent till 31st March 1962. On these facts, the plaintiffs assert that in view of decision by this Court in the suit for specific performance, the defendant was not entitled to recover any rent after 7th December 1954, and in so far as he wilfully avoided execution of a deed of reconveyance by raising frivolous objections, they are entitled to be reimbursed in respect of the amount of rents recovered by the defendant from the 4th February 1961 to 31st December 1962, by way of damages. THE defendant denied the claim on various grounds. THE first Court up held the entire claim for damages but on appeal, the Court below has restricted the claim to the period between 7th September 1961 and 31st March 1962. THE defendant has appealed. THE plaintiffs have filed a cross-objection.
Shri Rameshwar Prasad Verma, learned counsel for the appellant, assailed the decree on four grounds, firstly the right to the rents and profits accrued to the plaintiffs after the execution of a deed of reconveyance; secondly, pursuit of legal remedies, however, frivolous or dilatory, is not an actionable wrong; thirdly, the delay in execution was due to the plaintiffs' own laches and, fourthly, the period between 7th September 1961 and 31st March 1962 was taken up by settlement of necessary preliminaries towards execution of the deed.
In reply, Shri T. C. Naik, learned counsel for the respondents, urges that when a deed of reconveyance is executed, in pursuance of a decree for specific performance, the deed is subject to the terms imposed, and reading those terms into the deed, a "different intention appears" or is "necessarily implied" within the meaning of section 8 of the Transfer of Property Act. In other words, the rights of the defendant were limited upto 7th September 1954 by the terms of the decree and, any appropriation of the rents and profits thereafter, was wrongful. The equities were worked out by this Court in the suit for specific performance on the basis that the parties stood in relation of debtor and creditor. Interest was, therefore, allowed upto 7th September 1954. The only condition for reconveyance was payment of Rs.9,900 which was ascertained as the amount payable, inclusive of interest till 7th December 1954. The rents and profits accruing after that date were recoverable by the plaintiffs. The defendant has been mulcted with damages on account of their wilful obstruction in the execution of a deed of reconveyance, by dilatory tactics and frivolous objection.
(3.) ALTHOUGH, on the first point, learned counsel is perhaps, right in so far as he contends that the right to rents and profits accrues on a completion of transfer, nevertheless, for reasons which I shall presently state, the appellant cannot escape his liability for damages. The following passage in Mulla's Transfer of Property Act, 5th Edition, at p. 89, states the correct law:
"A buyer's right to rents and profits therefore accrues on the date of the transfer. This is made clear by section 55 (4) (a) under which the seller is entitled to the rents and profits of the property until ownership passes to the buyer, and also section 55 (6) (a) which declares the buyer entitled to rents and profits when the ownership of the property passes to him."
A contract for sale, transfer is not a right in rem. Rents and profits accruing due before the transfer are not the legal incidents of the property transferred. The law, therefore, allows the vendor the right of appropriation of rents and profits till there is a proper conveyance of title against payment of price as until then he is still the owner subject to an obligation to fulfil the contract. Where the vendor parts with possession, he is, in equity, entitled to interest on the unpaid price. What happens when the vendor wilfully delays completion of a proper conveyance ?;