LAWS(PVC)-1915-12-67

NARAIN DAS Vs. MUSAMMAT DHANIA

Decided On December 23, 1915
NARAIN DAS Appellant
V/S
MUSAMMAT DHANIA Respondents

JUDGEMENT

(1.) This appeal arises in a suit brought by Suraj Bhan, a minor, through his guardian and next friend, for possession of a house. It is stated in the plaint that Musammat Radha was the owner of the house and jointly with the defendant and Musammat Jeoni, now deceased, sold it to the plaintiff "through his father and guardian Narain Das "under a sale-deed, dated the 1st of April, 1912; that out of the amount of consideration for the sale they received Rs. 51 as earnest money; that they refused to have the sale-deed registered, but the plaintiff got it compulsorily registered; that Musammat Radha and Jeoni are dead and the defendant is in possession of the house; that the plaintiff repeatedly asked the defendant to receive the balance of consideration money, but the latter refused to take it and has withheld possession, lb is further alleged in the plaint that the plaintiff is ready and willing to pay the balance of consideration and it is prayed that it be caused to be paid to the defendant.

(2.) The defendant, in her written statement, denied the execution of the sale- deed and pleaded that even if it was executed by Musammats Radha and Jeoni, she was not bound by it, that it was invalid and that no relief could be granted to the plaintiff on the basis of it.

(3.) The courts below have not tried the case on the merits. They have treated the suit as one for specific performance of a contract and have held that a minor being incapable of entering into a contract could not purchase property and that the plaintiff is, therefore, not entitled to maintain the suit. On this preliminary ground they dismissed the suit. the learned District Judge relies on the decision of their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) I.L.R. 39 Calc. 232. In the argument before us the case of Mohori Bibee v. Dharmodas Ghose (1902) I.L.R. 30 Calc. 539, also decided by their Lordships, has been referred to on behalf of the respondent. In our Judgment neither of these rulings has any bearing on the present case. In the case last, mentioned the suit was brought against a minor to enforce a contract entered into by him. It was held that such a contract was void and could not be enforced. The former was a suit on behalf of a minor for specific performance of a contract to sell. It was held that such a contract could not be specifically performed. The suit before us is not a suit to enforce a contract against a minor and it is not a suit for specific performance of a contract. The court below is, in our opinion, wrong in holding that this is a suit for specific performance. The suit is not based on a contract; but is founded on the title acquired by the plaintiff under the sale-deed executed in his favour. The sale is referred to as evidence of his title. Where a contract has been made for sale of immovable property and that contract has not been completed by the execution of a sale-deed, no title in the property is vested in the purchaser until the execution of the sale-deed. This is provided in Section 54 of the Transfer of Property Act in the following terms: "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." In the case of a transaction which has not advanced beyond the stage of a contract to sell, the remedy is a suit for specific performance of the contract. Where, however, a sale-deed has been executed and, in the case of tangible immovable property of the value of one hundred rupees and upwards, registered, the title to the property vests in, and the ownership of it passes to, the purchaser. And as held in Shib Lal v. Bhagwan Das (1888) I.L.R. 11 All. 244 and Baijnath Singh v. Paltu (1908) I.L.R. 30 All. 125, this will be so even if the purchase money has not been paid. In such a case the remedy is not a suit for specific performance, but one for possession on the strength of the ownership acquired by virtue of the sale-deed. The present suit is a suit of this last description and not one for specific performance. A sale has been defined in Section 54 of the Transfer of Property Act as "a transfer of ownership in exchange for a price paid or promised and part paid and part promised." Pre-payment of price is not a condition precedent to the transfer of ownership and a transaction is none the less a sale if the price has not been paid in whole or in part. By Section 55, Sub-section (1)(f) of the same Act, it is provided that a seller is bound, on being so required, to give the buyer possession of the property sold. If the whole of the purchase money has not been paid the seller is entitled, under Sub-section (3) of the same section, to withhold documents of title. He is also entitled, under sub-section (4), Clause (b), to a charge for unpaid purchase money "upon the property in the hands of the buyer." This last clause assumes that the ownership of the property has passed to the buyer. It was held by the Madras High Court in Velayutha Chetty v. Govindasawmi Naiken (1907) I.L.R. 30 Mad. 524, that the "lien of the unpaid vendor of land under Section 55 of the Transfer of Property Act is non-possessory. He has only a right to retain the title deeds and to a charge for the unpaid purchase-money, but he cannot retain possession of the property sold against the vendee." As pointed out by the learned Judges, this view is also in consonance with the English law on the subject. (See Fisher on Mortgages, 6th Edition, ?505). It is thus clear that non-payment of consideration does not prevent the transfer of ownership to the buyer and does not entitle the seller to retain and withhold possession. No doubt, on equitable principles, the court will not make a decree for possession, in favour of the purchaser without attaching to it a condition directing payment of the purchase money. This was done in the two cases decided by this Court to which we have referred above. But non-payment of the purchase money is, as shown above, immaterial, so far as the question of the vesting of title is concerned. In the present case it was alleged on behalf of the plaintiff that he was always ready and willing to pay the balance of purchase-money but that the defendant had refused to take it. It cannot, therefore, be said that non-payment of the purchase- money vitiates the title acquired under the sale-deed.