- (1.) THE single question for determination in this appeal of the plaintiff is whether after a vendor has made an absolute sale of property he can enforce the payment of the sum of rent from the vendee?
(2.) THE plaintiff Lilawati sold about 100 plots in village Pillu Khera in Jind Tehsil, the object being to start a Mandi there. The defendant-respondents M/s. Ram Dhari Suraj Bhan purchased plot No. 70 for Rs. 99/- in pursuance of the sale-deed Exhibit P. 1 of 20th of April, 1958. Although the sale was absolute, some conditions were introduced, on of these being that a sum of two annas in every hundred rupees would be paid as haqe malkana to the vendor. Out of this sum of two annas, one anna was to be given to the village Panchayat and the remainder one anna was to be retained by the vendor Lilawati. It is not necessary to go into the other conditions which required the vendee to construct a shop on the plot sold to him and to keep a frontage for purposes of the shop. The defendants having refused to comply with the direction for payment of haqe malkana, the plaintiff brought a suit for rendition of accounts to enforce the condition.
(3.) THE pleadings of the parties gave raise to many issues but out of them issue No. 3 is only relevant for purposes of this appeal: "3. If issue No. 2 is proved, are the defendants bound by these conditions?" The trial Judge, and likewise the lower appellate Court in appeal, decided against the plaintiff, having found as a fact that the transfer of the land in favour of the vendee-defendants was absolute. It is not contested by Mr. Aggarwal, the learned counsel for the appellant, that the sale of plot for Rs. 99/- in favour of the vendee by the appellant was absolute. In that situation, the principle embodied in Section 11 of the Transfer of Property Act that there can be no restriction on the enjoyment of property which has been transferred absolutely, is clearly applicable. Under this section: "where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interst as if there were no such direction. " Likewise, the vendee is entitled to ignore a condition which cuts down his enjoyment of the absolute right of property. As stated in Mulla's Transfer of Property Act (1966 Edition) at page 104, " a restraint on transfer is repugnant to any interst in property whether absolute or limited, for the right of transfer is an incident of ownership. " It was observed by Right Hon'ble Sir Shadi Lal in the Privy Council decision of Rameshwar Bakhsh v. Balraj Kuar, AIR 1935 PC 187, at p. 190: "there can, however, be no doubt that if these clauses are repugnant to the absolute estate created in favour of the lady, they cannot cut down that estate and must consequently be held to be invalid. ";