RAMAN NARAYANAN Vs. VELU DAMODARAN

JUDGEMENT

(1.) A Single Judge has referred this case to a Division Bench, since the learned Judge felt that a pronouncement by a Division Bench was 'required as to whether the decision by a Single Judge of this Court in Ammukkutty Kunjamma v. Ikkavamma ( 1964 KLT 815 ) or the Division Bench ruling of the Madras High Court in K. G. Lakshmaua Iyer v. Ramaswami Naicker ( AIR 1941 Mad. 119 ) expressed the correct view.

(2.) The respondent brought the suit giving rise to the second appeal for the sale consideration claiming that the appellant was not entitled to benefits of Act 31 of 1958, since the exclusion contemplated by clause (vii) to S.2(c), viz., "any liability for which a charge is provided under sub clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882", applied to the case. The question we have to consider is whether this exclusion applies to the case. S.55(4)(b) of the Transfer of Property Act provides for a charge, usually designated as vendor's lien, over the property sold for the unpaid purchase money "in the absence of a contract to the contrary". Thus, the question for consideration boils down to whether there is a contract to the contrary in the case before us. The Division bench ruling of the Madras High Court has held, following the English decision in Webd v. Macpherson (ILR 31 Cal. 57), that, in a case where the property sold was itself mortgaged for the unpaid purchase money, there was no contract to the contrary so as to do away with the statutory lien. On the other hand, the Single Judge's decision of this Court in Ammukutty Kunjamma's case took the view that in such a case the statutory lien was no more there, because the acceptance or taking of a mortgage of the same property the property sold indicated a contrary intention an intention to do away with the statutory lien. In this decision, the learned Judge followed the Division Bench ruling of the Travancore High Court in Muhaitheen Beevi v. Krishna Iyer Ananthanarayana Iyer (1943 TLR 144), where the Division Bench followed the same English decision in Webb v. Macpherson. What we have therefore to consider is the real import of the English decision in Webb v. Macpherson.

(3.) Wadsworth J. has extracted, in the Madras decision, the following passage from Webb v. Macpherson: