It is contended for appellants that plaintiff's suit is not maintainable as it is based on a mortgage deed Exhibit A which has not been registered and it is inadmissible in evidence. Plaintiff however recognised his difficulty and has treated Exhibit A in his plaint as a simple bond and has further asked for the enforcement of his vendor's lien for unpaid purchase money which formed the consideration for Exhibit A. There being these specific prayers in the plaint the suit is certainly maintainable.
It is further urged that plaintiff gave up his vendor's lien by taking the bond Exhibit A. It must however be treated merely as a simple money bond not affecting immoveable property find as such does not in itself form a contract to the contrary within the meaning of Sect. 55 (4) Transfer of Property Act. If Exhibit A could take effect as a mortgage as intended by the parties to it, it might well be that it constitutes a contract to the contrary but inasmuch as it cannot take effect as such there arises no inference that the parties extinguished the vendor's lien.
Exhibit I was executed only to 1st defendant but the Subordinate Judge has made both her and her husband 2nd defendant’ liable and it is sought to support his order by reason of Sect. 233 of the Contract Act. That section would only be applicable if 1st defendant were the agent of 2nd defendant but she is not. The Subordinate Judge appears to find that Exhibit A was executed benami in 1st defendant's name for 2nd defendant but there was no issue on this point, and Mr. Sesha Charriar who appeared for both 1st and 2nd defendants objects to the finding and states that the plaint property belongs to 1st defendant and not to 2nd defendant and we accept this statement and find 1st defendant alone liable to plaintiff for the purchase money. The Lower Court's decree is therefore confirmed except that 2nd defendant must be exonerated. 1st defendant will pay plaintiff's costs in this second appeal and 2nd defendant will bear his own costs.
C. K.Decree modified.