POOMALAI PADAYACHI Vs. ANNAMALAI PADAYACHI

JUDGEMENT

(1.) The plaintiff filed the suit out of which this second appeal arises for recovery of possession of certain properties on foot of a sale deed executed by the first defendant acting for himself and as guardian of his son the second defendant who was on the date of the sale a minor. The purpose of the sale was to discharge the debt which was admittedly due to one Subbaraya Pillai. Subbaraya filed a suit and obtained a decree, but for some reason the decree is no longer alive. It is said that the decree was allowed to become barred. The plaintiff alleges that he was in possession for some time and that he lost possession later on. Then he filed this suit for recovery of possession impleading both the father and son. Both the lower Courts have held that there was an intention to transfer the property and that the sale deed is a real transaction. They also repelled the plea of the defendant that there was a condition precedent to the sale deed coming into effect, namely, that it was only on payment of consideration that title was to pass. The result therefore seems to be that as decided by this Court in Velayutha Chetti V/s. Govindaswami Naicken (1910) I.L.R. 34 Mad. 543, and Krishnamma V/s. Mali , the plaintiff would be entitled to get an unconditional decree for possession. Both the Courts also found that no consideration was paid by the vendee. The lower Courts were requested to give effect to the unpaid vendor's lien. The lower appellate Court passed a decree directing that the defendants were entitled to recover Rs. 500 if not paid within three months from the date of its decree by bringing the properties in question to sale in execution of this decree. In fact the learned Subordinate Judge gave a charge decree in enforcement of the unpaid vendor's lien. He also gave a decree for possession to the plaintiff. It is the decree that has been passed in favour of the defendants that is questioned by the appellant.

(2.) Under similar circumstances when this Court was asked to give effect to unpaid vendor's lien, it held in Velqyutha Chetti V/s. Govindaswami Naicken (1910) I.L.R. 34 Mad. 543. that no such decree could be passed. The learned Judges said, The provisions of the Transfer of Property Act that the vendee after conveyance is entitled to possession and that the vendor has a statutory charge on the property for unpaid purchase money are clear and it is not competent to the Courts in a suit for possession by the vendee, to pass a decree for possession conditional on the vendee paying the balance of the purchase money.

(3.) The decision of the Allahabad High Court to the contrary was not followed. The same point arose for decision in a later decision reported in Krishnamma V/s. Mali , The headnote runs thus: A vendee who has not paid the purchase money for the lands bought by him is entitled to a decree against the vendor for possession of such lands. The Court cannot make the decree conditional on payment of the purchase money nor can it decree payment of the price to defendant in the vendee's suit.