S.A. NARAYANASWAMY AIYAR Vs. S.R. MUTHURETHNAM AYYAR AND ORS.

JUDGEMENT

(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:

(3.) 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: