THYGARAJA MUDALIAR Vs. SESHAPPIER

JUDGEMENT

(1.) The 1st plaintiff and his sons, having conveyed certain immoveable properties to the 1st defendant in 1918, in consideration of the 1st defendant paying them Rs. 500 in cash at the time of execution and undertaking to discharge three items of debt to third parties, amounting at the time to Rs. 1,600, Rs. 4,954 and Rs. 946 respectively, brought this suit to enforce their vendor s lien to which they are entitled by Section 55, Clause 4 of the Transfer of Property Act. It is thereby declared that the seller is entitled (a) to the rents and profits of the property till the ownership thereof passes to the buyer, (6) where the ownership of the property has passed to the buyer before payment of the whole of the purchase- money, to a charge upon the property in the hands of the buyer for the amount of the purchase-money or any part thereof remaining unpaid and for interest on such amount or part."

(2.) It has now been established by the Fall Bench in Sivasubramania Aiyar v. Subramania Aiyar 37 Ind. Cas. 429 : 39 M. 997 : 31 M.L.J. 530 : (1916) 2 M.W.N. 306 : 20 M.L.T. 375 : 4 L.W. 415 (F.B.) that a direction by the vendor to pay the whole or a part of the purchase-money to a third party does not necessarily imply a waiver by the vendor of his statutory lien. The decisions in Abdulla v. Mammali 5 Ind. Cas. 87 : 33 M. 416 : 7 M.L.T. 376 and Siva Subramania Mudaliar v. Gnanasammanda Pandara Sannadhi 10 Ind. Cas. 98 : 21 M.L.J. 359 : 10 M.L.T. 71 so far as they laid down a contrary principle, were overruled by the Pall Bench.

(3.) There is an observation in Raghunatha Chariar v. Sadagopa Chariar 12 Ind. Cas. 863 : (1911) 2 M.W.N. 227 : 10 M.L.T. 300 : 21 M.L.J. 983 : 36 M. 348 that if the assignee enters into direct relations with the third party on the faith of the original direction and renders himself liable to make the payment to the third party, the assignor cannot, in such circumstances, require the assignee to pay the consideration to himself. So also in Sivasubramania Aiyar v. Subramania Aiyar 37 Ind. Cas. 429 : 39 M. 997 : 31 M.L.J. 530 : (1916) 2 M.W.N. 306 : 20 M.L.T. 375 : 4 L.W. 415 (F.B.) Seshagiri Aiyar, J. observed that if the direction is communicated to the proposed payee, a completed contract may arise between the purchaser and the third party which may preclude the vendor from claiming the money. It is now suggested that such is the case here. It is argued that a new contract between the vendee and the creditors of the vendors to discharge the debts wipes out the former s liability to the vendors.