Lawrence Jenkins, K C I E C J - (1.)On the 7 of April 1904 Mahomedali Abdul Husein Goriawalla executed in favour of the plaintiff a mortgage of immoveable property in Bombay, and the purpose of this suit is to restrain the defendant from interfering with the exercise by the plaintiff of the power of sale contained in the mortgage deed. The interference is admitted and is sought to be justified by the defendant on the ground that she has a charge on the mortgaged property under Section 55(4)(b) of the Transfer of Property Act.
(2.)Macleod, J., has passed a decree in the defendant's favour and dismissed the suit with costs. The plaintiff now appeals from that decree. The charge claimed by the defendant is in respect of unpaid purchase money due under an instrument of transfer executed by her in favour of Mahomedali, the plaintiff's mortgagor, on the 3 of April 1903, whereby the ownership of the mortgaged property passed to Mahomedali as the buyer.
(3.)The actual consideration named in the instrument of transfer was Rs. 9,000, but of this only Rs. 4,000 was paid at the time. By an agreement of even date Mahomedali agreed to pay the balance within one year, and it was thereby provided as follows: "In case I "that is Mahomedali" or my heirs sell the said premises in question and mentioned in the said conveyance, the said vendor should at once attach the sale-proceeds of the said premises and recover the balance out of it." A part of this balance is still unpaid.