HAR CHAND Vs. KISHORI SINGH

JUDGEMENT

(1.) The facts sufficient for the disposal of this appeal are these. The plaintiff sold property No. 2 to the defendants under a sale-deed of the 18 August 1896. In the sale-deed the details of the receipt of consideration are given, and it is stated that a sum of Rs. 179 is left with the vendees for payment to Chaggu father of Neka, deceased, who had obtained a decree from the Court of the Subordinate Judge of Agra. The defendants, however, failed to pay the amount of Rs. 179 to Chaggu, father of Neka, and the plaintiff brought an action to recover it on the 20 August 1908. The Court of first instance decreed the suit and its decree was on appeal affirmed by the lower appellate Court. From the judgment of the lower appellate Court, it appears that two points were pressed before that Court in appeal. The first was that the suit was barred by limitation, and the second was that the sum of Rs. 179 was paid. The lower appellate Court on the first point came to the conclusion that the claim being a claim for the unpaid balance of purchase money, the suit under the authority of Muniranissa V/s. Akbar Khan A.W.N. (1908) 71 : 3 M.L.T. 374 : 5 A.L.J. 243 : 30 A. 172, was not barred. On the second point the Court found that it was not shown that the sum of Rs. 274, which was paid by the Mukhtar of the defendants included the sum of Rs. 179, which the defendants agreed to pay to Neka's father. The defendants come here in second appeal and the learned Vakil repeats the two pleas which were urged in the lower appellate Court. In support of the plea of limitation, he says that the contents of the saledeed of 18 August 1896 very clearly show that the vendors entered into an agreement with the vendees for the payment of the sum of Rs. 179, to Neka's father in a way which is inconsistent with the continuance of the statutory lien created by Section 55 of the Transfer of Property Act, and in support of this contention he relies on the following observations of their Lordships of the Privy Council in Webb V/s. Macpherson 31 C. 57 at p. 72 : 13 M.L.J. 389 : 5 Bom. L.B. 838 : 8 C.W.N. 41 : 30 I.A. 238 (P.C.): "With reference to the consequence, a number of English cases were cited. No doubt English cases might be useful for the purpose of illustration, but it must be pointed out that the charge which the vendor obtains under the Transfer of Property Act is different in its origin and nature from the vendor's lien given by the Courts of Equity to an unpaid vendor. That lien was the creation of Courts of Equity, and could be modified to the circumstances of the case by Courts of Equity. But in the present case there is a statutory charge. The law of India, speaking broadly, knows nothing of the distinction between legal and equitable property in the sense in which that was understood when equity was administered by the Court of Chancery in England, and the Transfer of Property Act gives a statutory charge upon the estate to an unpaid vendor, unless it be excluded by contract. Such a charge, therefore, stands in quite a different position from a vendor's lien. You have to find something, either express contract, or at least something from which it is a necessary implication that such a contract exists, in order to exclude the charge given by the statute. In their Lordships opinion there is no ground whatever f of saying that the charge is excluded to defer payment of a portion of the purchase money, or to take the purchase money by instalments, nor is it, in their Lordships opinion, excluded by any contract, covenant, or agreement with respect to the purchase money, which is not inconsistent with the continuance of the charge."

(2.) Applying the above observations of their Lordships, I am of opinion that the mere fact of being a portion of the purchase money with the vendees for payment to the mortgagee of the property sold, is in no way inconsistent with the continuance of the lien. The vendor under Section 55 of the Transfer of Property Act, has a statutory lien in his favour, and it is inconceivable that he would give it up for nothing.

(3.) Regarding the second plea I am of opinion that the finding recorded by the lower appellate Court amounts to a finding that the defendants vendees failed to show that the sum of Rs. 179 was included in the sum of Rs. 274 with the Mukhtar paid in connection with the execution proceedings.