This is an Appeal by the first two Defendants in a suit for declaration of title to immoveable property and for recovery of possession thereof. The subject-matter of the litigation admittedly belonged to the fourth Defendant who executed a conveyance in favour of the Plaintiffs on the 17th July, 1905 for a consideration of Rs. 657. The document was registered two days later but was not delivered to the purchasers. On the 17th March, 1906, the present Appellants took a conveyance of the same properties from the fourth Defendant; and the question in controversy between the parties is, whether the Plaintiffs have acquired a valid title by their prior purchase. The Courts below have found that the consideration mentioned in the deed was not paid in its entirety. One hundred rupees appear to have been paid by the Plaintiffs to the vendor before he transferred the land to the first Defendant in satisfaction of his dues. A further payment appears to have been made by the Plaintiffs, and we may take it approximately that Rs. 500 still remains unpaid. On these facts it has been argued for the Appellants that the transaction was not completed and that the vendor was not divested of his title which consequently was effectively transferred to the Appellants under the conveyance subsequently executed in their favour. In support of this view, reference has been made to the decisions in Sheo Narain v. Durbari Mahto(1), Mauladan v. Raghunandan(2), Sarat Chandra v. Hatipado(3) and Gostho Behary v. Rohini(4). These cases, however, do not really assist the contention of the Appellant. They are authorities for the proposition that the mere circumstance that a document has been registered does not conclusively show that it was intended to take effect immediately upon execution and registration: if the parties intended that the document should not become operative till the consideration had been paid by the purchaser and the document delivered to him by the vendor the Court would give effect to such intention. Goode v. Burton(5), Bowker v. Burdekin(6), Gudgem v. Bassett(7). The case of Manogi Singh v. Sarat Lal(8) furnishes an illustration of a case where title was taken to have vested in the transferee though the consideration had not been paid. In the present case the Courts below have concurrently found that there was no intention on the part of the vendor or the purchasers to postpone the operation of the conveyance till consideration had been actually paid. It is impossible for us to disturb this finding in second appeal, we must hold accordingly that title vested in the Plaintiffs under the conveyance of the 17th July, 1905.
The next point which requires consideration is, whether the Plaintiffs are entitled to an unconditional decree for possession, such as has been made in their favour. On behalf of the Appellants, who are subsequent transferees from the original owner, it has been argued that a decree for possession ought not to be made in favour of the Plaintiffs till they have brought into Court the amount of the consideration left unpaid. In support of this contention, reference has been made to the case of Baijnath v. Paltu(9). On behalf of the Respondents, this position has been controverted on two grounds. It has been contended in the first place that the Appellants, as purchasers from the original owner, are not entitled to compel the Plaintiffs to bring into Court the amount of consideration still unpaid. This view has been sought to be supported by a reference to the decision in Ramlakhan v. Bandan Rai(10). It has been contended in the second place that although the vendor may have a statutory lien for the amount of the purchase money unpaid, he is not entitled to ??? possession: and in support of this view, reference has been made to the decision in Velayatha v. Gobinda(11) which was affirmed on re-hearing Velayatha v. Govinda(12). We are of opinion that the contentions of the Respondents are not well-founded on principle.
As regards the first objection, it need not be disputed that the lien of the unpaid vendor is personal. But in the case before us, it has been found that the present Appellants have paid to the original owner, if not the whole, at least a considerable portion of the consideration fixed for the transfer to them. That transfer cannot, as we have held, take effect by reason of the fact that the title had completely vested in the Plaintiffs under the prior conveyance. Under these circumstances, the Court may, upon their application, compel the Plaintiff's to bring into Court the amount of purchase money not yet paid, to be credited in the first instance to the vendor and directions given thereafter for adjustment of the rights of the vendor and the subsequent transferees.
As regards the second objection, we are of opinion that the provisions of sec. 55 of the Transfer of Property Act do not exclude the application of the principles of equity to the case before us. We entirely agree in the observation of Mr. Justice Mahmood in Shib Lal…(Defendant); v. Bhagwan Das…(Plaintiff).*(13), that in a case, such as this, an equity may exist in favour of the Defendants so as to subject the decree for possession to restrictions and conditions appropriate to the circumstances of each case. This view has been adopted by the Bombay High Court in Umedmal v. Divu(14), by the Allahabad High Court in Baijnath v. Paltu, and by the Madras High Court in Subramanhya Ayyar v. Poovan(15). With all deference to the learned Judges who decided the case of Velayatha v. Govinda, we are not able to adopt the view they took of the effect of the statutory provisions on the subject: there is no reason why the right of the purchaser to obtain possession under sec. 55(r)(f) of the Transfer of Property Act and the right of the vendor to realise the unpaid balance of the purchase money under sec. 55(4)(b) should not be recognised and enforced in one action. If we accept the contention of the Respondents the result will be that the Plaintiffs will obtain an unconditional decree for possession, the vendor will be driven to institute a suit to enforce the lien which he possesses over the property for the unpaid purchase money, and the subsequent purchasers from the original owner will be driven to institute a suit against him or his representatives for recovery of the document they have paid as consideration for the conveyance in their favour. It is obviously undesirable that the matter in controversy which may be set led without disadvantage to any of the parties, in a single litigation should be repeatedly agitated in a succession of suits. L is worthy of note that the payment of the purchase money and the execution of the conveyance are presumptively contemporaneous acts [Glazebronk v. Woodrow(16), Mattock v. Kinglake(17)]. If, however, the vendor executes a conveyance without receipt of the purchase money, he has an equitable lien upon the land for the unpaid amount [Mackreth v. Symmons(18)], while, if the purchaser, has paid money before the conveyance, he has an equitable lien for the advance [Rose v. Watson(19)]. The only question is, whether in a suit by the purchaser for possession, the vendor may be allowed equitable relief. Now even if it be assumed that, under the Common Law [Goode v. Burton], a vendor who has executed a conveyance without receiving payment of the whole price has no lien authorising him to retain possession of the title-deeds, yet, it is plain that in equity his lien on the land sold gives him the right to keep the title-deeds until payment [Dryden v. Frost(20)]. Again, the lien for unpaid purchase money, does not entitle the vendor, after execution of the conveyance to the purchaser, to resume possession of the land sold [Manns v. Isle of Wight Railway Co.(21), Williams v. Aylesbury Railway(22)]. Yet if on a sale directed by the Court for enforcement of the lien [Ecclesiastical Commissioners v. Pinney(23)], the property is found unsaleable at an adequate price, the Court may direct the vendor to be again let into possession. [Allgood v. Merrybent Railway Co.(24)]. We hold accordingly that there is no substance in the second contention.
The result is that the Appeal is allowed, and the decree of the Subordinate Judge set aside and in lieu thereof a conditional decree will be made in favour of the Plaintiffs on the following terms: namely, that the Plaintiffs do deposit in this Court Rs. 500 together with the costs of the Defendants in all the Courts (to be specified in the decree) within one month from the date on which the decree of this Court is actually signed. If the amount is so paid, a decree will be drawn up in favour of the Plaintiffs for recovery of possession. If the amount is not paid, the decree will direct that the suit do stand dismissed with costs in all the Courts. We desire to add that we make the Plaintiffs liable for the costs of this litigation. It was incumbent on them to come into Court with a true statement of the facts, and to offer to bring into Court the amount, of purchase money still unpaid. Not only did they not do so, they alleged falsely in the plaint that they had paid the entire consideration money.
If the amount is deposited as directed, the Appellants will be entitled to withdraw the same from Court.
Appeal allowed.