VELAYUTHA CHETTI Vs. GOVINDASAWMI NAICKEN

JUDGEMENT

(1.) This appeal see Velayutha Chetty V/s. Govindasawmi Naicken 30 M. 524; 17 M.L.J. 450; 3 M.L.T. 10 was ordered to be re-heard on the ground that at the date of the former hearing the appellant was dead and no one had been brought on the record to represent him. At the re-hearing it was contended that we were wrong in having given the vendee who was found not to have paid the whole of the purchase money an unconditional decree for possession and we were referred to the recent decision in Baijnath Singh V/s. Paltu 30 A. 125; A.W.N. (1908) 38: 5 A.L.J. 96 in which it was held that although a vendee who has not paid the purchase money is entitled to maintain an action for possession against the vendor yet the vendor has an equity arising out of the purchase money and that the proper decree is that, if the plaintiff pay the purchase money within six months the property be delivered to him, and if he fail to do so his suit do stand dismissed. The decision follows an obiter dictum of Mahmood, J. in Shib Lal V/s. Bhagwan Das 11 A. 244 at p. 251 that "in a case such as this in common with some other classes of cases, equities may exist in favour of the defendant, so as to subject the decree for possession to restrictions and conditions appropriate to the circumstances of each case." Now the provisions of the Transfer of Property Act that after conveyance the vendee is entitled to possession and that the vendor has a statutory charge on the property for unpaid purchase money are perfectly clear, and the effect of the decision, in our opinion, is, therefore, to override the provisions of the statute and to say that the vendee is not entitled to possession until he pays the purchase money and that the vendor is entitled to retain possession until he is paid. With great respect we think it is not open to Courts of this country to introduce and enforce equities modifying the provisions of the Statute Law. In this connection we may refer to the language of Lord Davey delivering the judgment of their Lordships of the Judicial Committee in Webb v. Macpherson 30 I.A. 238 at p. 245; 81 C. 57; 8 C.W.N. 41 where he remarks that 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. Even then if an unpaid vendor could set up such an equity in England either as to the land or the title deeds which would not appear to be the case Goode V/s. Burton 1 Exch.24 that would not entitle us to enforce such an equity here. With reference to the last cited case it is observed in "Dart's Vendors and Purchasers" page 731, that when an unpaid vendor is sued for possession of the title deeds by the vendee his proper course is to counter-claim for the enforcement of his lien. If the present Code allowed of counter-claims and the vendor had so counter-claimed for the enforcement of his charge we might have been at liberty to do as the Allahabad Court has done, that is, to enforce the unpaid vendors charge by passing a decree for foreclosure against the vendee but that is not the case before us.

(2.) Another point taken at the re-hearing was that even allowing due weight to Ex. G, which was not considered by the District Judge, there is Other evidence that the 4 defendant's possession was adverse to the plaintiff, and that under these circumstances we ought to either affirm the judgment of the District Judge or call for a fresh finding. We think that, as the District Judge has failed to consider Ex. G, the latter will be the better course, and have resolved to call for a fresh finding as to whether the suit is barred by limitation on the evidence on record.

(3.) Findings should be submitted within sir weeks and seven days will be allowed for filing objections.