AKBAR KHAN Vs. MUNIR-UN-NISSA

JUDGEMENT

(1.) This appeal arises out of a suit brought by a vendor to enforce payment of the balance of his purchase money by sale of the purchased property. The main question raised in the appeal is whether Art. 111 of Schedule II to the Limitation Act, or Art. 132 is applicable to the case. Art. 111 provides for a suit brought by a vendor of immovable property to enforce his lien for unpaid purchase money and the period given for the institution of a suit under that article is three years. Art. 132 provides for a suit to enforce payment of money charged upon immovable property, the period allowed for the institution of such a suit being 12 years. It is admitted that if Art. 111 is applicable to this case the suit is barred, but if Art. 132 applies the suit has been brought within time.

(2.) The respondent's case is that the suit is not a suit to enforce a lien within the meaning of Art. 111, but is a suit to enforce a statutory charge created by Section 55 of the Transfer of Property Act. The Courts in this country have taken varying views upon this question, the Bombay High Court holding that Art. 132 was the article applicable to a case of the kind, whilst, until quite recently, the Madras High Court held that the article applicable was Art. 111. In this High Court there were also conflicting decisions. In the case of Baldeo Prasad V/s. Jit Singh Weekly Notes 1891, p. 130, Edge, C.J., and Tyrrell, J., held that Art. 111 was applicable. But in a later case we find a carefully considered judgment delivered by the late Sir Arthur Strachey, the Court consisting of himself and Banerji, J., ruling that Art. 132 applied. This was the case of Har Lal V/s. Muhamdi (1899) I.L.R. 21 All. 454. In a recent case in the Madras High Court--Ramakrishna Ayyar V/s. Subrahmania Ayyen (1905) I.L.R. 29 Mad. 305--the question was again considered, and in view of a statement of the law by their Lordships of the Privy Council in a recent case, to which we shall presently refer, the Court held, overruling the previous decisions, that Art. 132 was the article applicable to a suit of the kind. The case to which the learned Judges in that case referred is the case of Webb V/s. Macpherson (1903) I.L.R. 31 Calc. 57. In that case their Lordships, at pp. 71 and 72, referred to Section 55 of the Transfer of Property Act, which provides that "in the absence of a contract to the contrary . . . the seller is entitled, 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." A number of English authorities were cited to their Lordships in that case, and dealing with these authorities they observed, at page 72: "No doubt English cases might be useful for the purpose of illustration, but it must be pointed out that the charge which the vendor obtains under the Transfer of Property Act is different in its origin and nature from the vendor's lien given by the Courts of Equity to an unpaid vendor. That lien was a creation of the Court of Equity and could be modified to the circumstances of the case by the Court of Equity. But in the present case there is a statutory charge. The law of India, speaking broadly, knows nothing of the distinction between legal and equitable property in the sense in which that distinction was understood when equity was administered by the Court of Chancery in England, and the Transfer of Property Act gives a statutory charge upon the estate to an unpaid vendor, unless it be excluded by contract. Such a charge therefore stands in quite a different position from a vendor's lien." In view of this language of their Lordships it appears to us that we must take it as settled that a claim such as that referred to in the present case for the enforcement of the payment of purchase money by sale of the purchased property is a statutory charge differing from the lien which an unpaid vendor in equity possessed for the recovery of the balance of his purchase money and that therefore the article of the Limitation Act applicable to this suit is Art. 132.

(3.) A minor question which has been raised in the appeal is that, the suit having been dismissed as regards one of the defendants Nazir Husain, he should have been exempted from the payment of costs. In view, however, of the relationship of Nazir Husain to the vendee, this is not a case in which we should interfere with the decision of the Court below on the question of costs.