PANDURANG BALAJI APTE Vs. MAHADEO GOPAL JOG

JUDGEMENT

(1.) The plaintiff filed this suit to recover the balance of the purchase money due on a contract of sale dated the 8 November 1915, whereby he contracted to sell certain property for Rs. 6,000 to the father of the defendants. In pursuance of the contract, the possession of the suit land was given to the defendants father on the 7 December 1915, but no sale deed was passed owing to the illness of the defendants father. Thereafter disputes arose with regard to the payment, with the result that the defendants, according to the plaintiff's case, only paid Rs. 1,750. The plaintiff, therefore, claimed Rs. 5,362-7-6 according to the account in the plaint together with further interest at seven and a half percent, on Rs. 4,250.

(2.) The defendants raised various defences, but the principal question in the suit was whether the plaintiff was entitled to interest on the unpaid balance of the purchase money. The lower Court has decided this question against the plaintiff, and directed the defendants to pay Rs. 4,30l-34-9 into Court, and to produce a general stamp of Rs. 60; on that being done the plaintiff was to pasis a regular sale-deed to the defendants.

(3.) In appeal it has been argued that the decision of the lower Court on the question of interest was wrong. The decision of the Privy Council in Ratanlal Chunilal V/s. Municipal Commissioner for City of Bombay (1918) I.L.R. 43 Bom. 181, 21 Bom. L.R. 114, P.C. lays down at p. 200 the general principle, which applies when one party to a contract of sale enters into possession of the property before the whole of the price has been paid, that " unless there be something in the contract of parties which necessarily imports the opposite, the date when one party enters into possession of the property of another is the proper date from which interest on the unpaid price should run. On the one hand, the new owner has possession, use. and fruits; on the other, the former owner, parting with these, has interest on the price." That is a principle of equity, and it is quite independent of the provisions of the Transfer of Property Act. If the ordinary course is followed, the vendor executes the sale-deed, the purchaser pays the sale price and gets possession. But if, as happened in this case, the purchaser gets possession without paying the whole of the purchase price, then it follows in equity that he cannot retain the money and also enjoy the profits of the property.