M K SUNDARARAMIER Vs. C M V KRISHNAMACHARY

JUDGEMENT

(1.) THIS revision petition arises out of E. A. 361 of 1964 in E. P. 153 of 1963 in O. S. 30 of 1963, on the file of the Sub-court, Madurai. The suit O. S. 30 of 1963 was filed by the plaintiff Venkataraman against M. K. Sundararamier, his daughter-inlaw and grandson for a certain sum of money. He exonerated the daughter-in-law and grandson and obtained a decree for Rs. 9000 against Sundararamier. To execute the decree, he filed E. P. 153 of 1963 and attached a house belonging to the joint family consisting of Sundararamier, his daughter-in-law and his grandson. The house is said to be worth about Rs. 29000. But in respect of that house. Sundararamier had executed an agreement Ex. A. 1 dated 6-9-1962 for Rs. 29000 in favour of one C. M. V. Krishnamachary. Under the agreement a sum of Rs. 9000 was advanced. But the sale was not completed. It is the case of C. M. V. Krihanamachary that the default was with M. K. Sundararamier. He has issued a notice Ex. A. 2 dated 21-2-1963 to M. K. Sundararamier but to no purpose. C. M. V. Krishnamachari alleged that not merely did Sundararamier fail to complete the sale deed but he set up his grandson to file a partition suit, O. S. 31 of 1963 in the sub-court and claimed a half share and that further he set up Venkataraman to file O. S. 30 of 1963 and bring the properties to sale. On such allegations C. M. V. Krishnamachari filed E. A. 361 of 1964 under Order XXI rule 58 C. P. C. claiming a charge over a sum of Rs. 9000 under Section 55 (6) of the Transfer of Property Act and requested the executing court to notify it in the proclamation of sale. The learned Subordinate Judge accepted the prayer of C. M. V. Krishnamachari and notified the charge to the extent of Rs. 9000. This revision petition has been filed by M. K. Sundararamier against that order dated 10-12-1964.

(2.) SECTION 55 (6) (b) of the Transfer of Property Act states that the buyer is entitled

(3.) SRI S. Kothandarama Nayanar, learned counsel for the petitioner, urges that the above provision cannot be availed of by the buyer before the sale deed is executed and can be availed of by him only after the sale deed is executed. I am however unable to accept the contention, because if the sale deed is executed, the title would pass to the buyer and there is no point in giving a charge over the purchase money on the property which has become that of the buyer. The provision can have meaning only in a case where the title has not yet passed to the buyer in respect of the purchase money or any portion thereof paid by him. That the provisions of Section 55 will apply to the case of executory contract, that, is, where the sale deed has not been executed, is clear from the decisions quoted by the learned Subordinate Judge and the observations of the learned judges therein, namely, Adhikesavan Naidu v. Gurunatha Chettiar, ILR 40 Mad 338: (AIR 1918 Mad 1315) (FB), Khathamuthu Pillai v. Subramania Chettiar 1926 Mad WN 271: (AIR 1926 Mad 569) and Krishnaswami Rao v. Srinivasa Desikan, 71 Mad LJ 850 at p. 853 (AIR 1937 Mad 261 at p. 262 ). Hence the learned Subordinate judge had jurisdiction to declare the charge.