JUDGMENT Mukerji, J.
1. The facts of the case are briefly these : There were two houses, one to the north of the other with a blind lane running between the two. Both the houses belonged to the plaintiff-respondent, Batuk Prasad Gupta. The house to the north is still in possession of the plaintiff, but the house to the south was sold by him to one Fatch Chand by a sale deed dated 13th January 1920. It was agreed, among other matters, between the vendor and the vendee that, if and when, Batuk Prasad wanted the vendes to remove the chatta which had been constructed on the lane between the two houses and which opened into the defendant's house, it would be removed by the defendant at his own cost.
2. After the sale, Fiteh Chand was declared insolvent and his property was sold by the receiver in insolvency and the house of Fatch Chand was purchased by the defendants who are the appellants before us. The plaintiff thereupon instituted the suit out of which this appeal has arisen for compelling the defendants to remove the chatta built over the lane. The chatta is in the shape of a building constructed over the lane all along the length of it and it appears that it consists of two storeys.
3. The plaintiff asked for the removal of the chatta and also for an injunction.
4. The suit was decreed in its entirety by the Court of first instance, but on appeal by the defendants the learned Subordinate Judge upheld the decree so far as ha directed the defendants to remove the chatta, but dismissed the suit so far as the prayer for an injunction went.
5. The defendants have appealed and the plaintiff has filed a cross-objection in respect of that portion of the claim which was dismissed by the lower appellate Court.
6. We may at once dispose of the cross-objection. It is dear on the facts that there was no occasion for the plaintiff to ask for an injunction. If the chatta was removed the plaintiff would get all the relief that the case called for and it was entirely unnecessary for the plaintiff to ask for an injunction restraining the defendants from making an encroachment hereafter on the space so opened.
7. As a necessary result of the modification of the decree of the Court of first instance the learned appellate Court allowed the plaintiff only a part of his coats. The plaintiff's contention is that he should have the whole of the costs although a portion of his claim was dismissed. We do not sae how the plaintiff can get the whole of his costs if a portion of his claim was rightly dismissed. We accordingly dismiss the cross-objection with costs, including counsel's fees on the higher scale.
8. We now come to the appeal in which several points of law have bean raised. The first contention of Dr. Katju is that the defendants do not claim under Fateh Chand and are therefore not bound by the covenant contained in the sale deed. The argument is that the receiver is not bound by the covenant and therefore the defendant who derive their title through the receiver, are not bound by the covenant.
9. Reliance has been placed on Section 28, Provincial Insolvency Act, 1920, and it has been argued that all that vests in the receiver is the property of the insolvent and not any of his liabilities. This argument is fallacious. If the insolvent is under a liability, whether it arises out of an equity or as a matter of law, the receiver cannot have any greater right than the insolvent himself. It is said that if this were so, something would have been found within the four corners of the Insolvency Act to justify an interference like that. But the scheme of the Insolvency Act is to vest the property of the insolvent in a person called the receiver in order that that property may be distributed. Under that scheme, there is no reason why the receiver should be given a property of greater value than the insolvent himself possessed. It is clear to us that if the power which vested in the plaintiff to remove the Chatta be taken away from him the property of the insolvent would go up in value, because, in that case, the chatta would be always intact and cannot be removed.
10. No authority has been quoted by the learned Counsel for the appellants in support of his case. On the other hand, the learned Counsel for the respondent has quoted two cases before us, and one is Pearce v. Bastable's Trustee in Bankruptcy [1901] 2 Ch. D. 122. This case has been followed by the Madras High Court in P. Purshotam Naidu v. L. Ponnarangam Naidu [1913] 21 I.C. 576. These cases are entirely in keeping with the view we take of the case, and we follow them.
11. The next argument of the learned Counsel for the appellants is that the covenant is a purely personal one and it cannot be enforced against the heirs or representatives of either party thereto. This argument entirely ignores the provisions of Section 27(b), Specific Relief Act. That rule of law says that specific performance of a contract may be enforced against either party thereto and against any other person claiming under him by a title arising subsequent to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract.
12. The receiver in this case is certainly a person claiming under the insolvent and by a title which has arisen subsequently to the contract. It is true that the title vests in the receiver not by virtue of any contract between the insolvent and himself, but by virtue of law, but nonetheless the receiver is a person who gets, all the interest which the insolvent; and therefore there is no reason to exclude him from the category of persons claiming under the insolvent.
13. It has been found that the defendants are persons who had notice of the provision in the sale deed and that is a question of fact. The sale deed being registered the registration would charge the defendants with notice of the covenant. The defendants therefore are bound by the agreement contained in the sale deed.
14. Then it was argued that under the provision of Section 11, T.P. Act, the agreement is not enforceable. Ordinarily a contract like this would not be enforceable by the vendor. But the vendor in this case is interested in the adjoining house, and it is for the beneficial enjoyment of that house that he is enforcing this contract. Section 11, T.P. Act, contains a proviso in the following language:
Nothing in this section shall be deemed to affect the right to restrain, for the beneficial enjoyment o£ one piece of immovable property, the enjoyment of another piece of such property, or to compel the enjoyment thereof in a particular manner.
15. The chatta rests partly on the plaintiff's wall. It imposes a burden on that wall. Further, it was agreed in the sale-deed between the parties that each of the parties would be entitled to open skylights or clear-storey windows in their respective walls and the other party would not be entitled to object to this. Unless the chatta is removed the clear-storey windows or skylights cannot be opened. For both reasons it is for the beneficial enjoyment of the plaintiff's property that it is necessary that the defendants should be compelled to enjoy their property in a particular manner, namely that agreed upon. Section 11, T.P. Act, therefore is no bar to the maintenance of the suit.
16. It was further contended that the grant of the relief is discretionary with a Court and as no probable damage has been established, the decree should not be granted. But the discretion that vested in the Court is not arbitrary. The plaintiff and the predecessor-in title of the defendants agreed with their eyes open that the chatta might be at any time removed if Batuk Prasad, the plaintiff, so wished. When Fateh Chand was the purchaser it may have suited Batuk Prasad to allow Fateh Chand to maintain the chatta; but when other people, who may be entire strangers to Batuk Prasad, have come into the house it may not suit Batuk Prasad to let the chatta stand. This is a matter which should rest entirely on the discretion of Biituk Prasad, and the Court should not interfere with that discretion. Besides, as we have pointed out, there is the burden on the wall of Batuk Prasad of the weight of the chatta, and the chatta, if allowed to stand, would not enable Batuk Prasad to open the clear-storey windows. In the circumstances we do not see how we can disallow the relief to the plaintiff.
17. Lastly, it was argued that there should be some limit to the enforcement of the agreement contained in the sale deed. It was argued that it might be that, in a far distant time, a descendant of the plaintiff might want a descendant of the defendants to remove the chatta and, in that case, to agree to the contention of the then plaintiff, would be very hard on the then defendant. This case does not call for an answer to that contention, but probably it is provided by the Full Bench I case of this Court in Aulad Ali v. Ali I Athar A.I.R. 1927 All. 170.
18. The result is that this appeal fails and I is hereby dismissed with costs, including I counsel's fees on the higher scale.