AMMUKUTTY KUNJAMMA Vs. IKKAVAMMA

JUDGEMENT

(1.) The respondent and her son sold a property to the appellant for Rs. 550/- on the 1st September, 1953, and the appellant and another hypothecated the property to secure payment of the sale consideration. In due course, the respondent put the hypothecation in suit and obtained a decree. In execution, the appellant sought to discharge the debt under the provisions of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958, when the respondent contended, that the liability is not a debt as defined in the Act, being a "liability for which a charge is provided under sub clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882", and therefore excluded from the definition, by S.2(c)(vii). The sale deed was executed after the Transfer of Property Act had come into force in the concerned area, and therefore the respondent was entitled to a charge under S.55(4)(b) of the Transfer of Property Act for unpaid consideration, if any, in the absence of a contract to the contrary. .The District Judge, differing from the Munsiff, has held that there was no contract to the contrary and so the respondent was entitled to a charge. The question in second appeal, is whether this view of the District Judge is right or not.

(2.) The first contention of learned counsel for the appellant that the consideration for the sale was the hypothecation and so no part of it remained unpaid is, in my opinion, bound to fail. The consideration recited in the sale deed was a sum of Rs. 550/- and by the hypothecation, its payment was secured and was to be made on demand. The distinction was stated thus by the Privy Council in Webb v. Macpherson ILR 31 Calcutta 57 at page 73:

(3.) I am, however, of the opinion, that the appellant has to succeed on the second contention, that a hypothecation having been taken from him securing the very property sold, the charge Under S.55(4)(b) of the Transfer of Property Act is excluded by a contract to the contrary. There is a distinction between an equitable lien as in England, and as was recognised before the Transfer of Property Act became law, and the statutory charge under S.55(4)(b) of that Act for unpaid purchase money, because the former being a creature of equity is amenable to equitable considerations and the latter is governed by the terms of the Act to which it owes its origin. Distinguishing an equitable lien, the Privy Council propounded the following test in Webb v. Macpherson ILR 31 Calcutta 57 to determine, when a statutory charge under S.55(4)(b) is excluded by a contract to the contrary: