1. This appeal arises out of a suit brought by the appellants against the respondents for an order upon the defendants to make over a sale deed to the plaintiffs, for possession of the property covered by the sale deed, dated 6th January, 1916, and for other incidental reliefs. The facts so far as they are necessary for the determination of this appeal are as follows: On 6th January, 1916, defendant 1 did execute a properly registered conveyance in respect of the properties in suit in favour of the plaintiffs. Subsequently defendant 1 sold the same properties to defendants 2 to 4, and it is on the basis of the sale deed, dated 6th January, 1916, that the plaintiffs have brought the suit out of which this appeal arises.
2. The defence of defendant 1 is that the document was procured from him under circumstances which negative the implication of a free consent on his part and that therefore he never executed the document in favour of the plaintiffs and that he is not bound by it at all. It will be noticed that he does not set up a case that there was a contract between him and the plaintiffs that the conveyance would not be operative until the full consideration money is paid. It is important to remember, this fact in view of the finding of fact arrived at by the lower appellate Court. The Court of first instance found that the document of 6th January, 1916 was a genuine document and was executed for consideration. It found that the consideration of the conveyance was Rs. 450 and that the plaintiffs had out of that consideration deducted Rs. 175 and Rs. 160 in respect of the money due to them from defendant 1 on account of certain other transactions. It further found that Rs. 20 was paid by the plaintiffs in cash to defendant 1 and that Rs. 95 still remained to be paid by the plaintiffs to defendant 1. Upon this finding the Court of first instance gave a decree to the plaintiffs conditional on the plaintiffs paying in Rs. 95 within one month to defendant 1. The Court of first instance further decreed that on failure on the part of the plaintiffs to pay in Rs. 95 within a month, the plaintiffs should get a money decree for Rs. 160 which was due from defendant 1 to the plaintiffs and for Rs. 20 which had been paid by the plaintiffs to defendant 1. Against this decree there was an appeal to the lower appellate Court. But it will be convenient to deal with another matter before I deal with the decision of the lower appellate Court.
3. It appears that the plaintiffs could not pay Rs. 95 into Court within the time specified in the decree of the Court of first instance. Therefore, on 12th July, 1917, the plaintiffs made an application to the Court of first instance for enlargement of the time to enable them to may Rs. 95 into Court. That application was refused, and, as I have stated before, the plaintiffs appealed from the decision of the Court of first instance. The lower appellate Court does not dissent from the finding of the Court of first instance that the sale deed was duly executed for a consideration of Rs. 450, hub it thought that because the plaintiffs had not paid the full consideration money to defendant 1, the plaintiffs' suit should have been dismissed by the Court of first instance. In my opinion that is entirely erroneous. It is obvious that the title accrued to the plaintiffs on the execution of the sale deed. If the full consideration had not been paid by the plaintiffs to the defendant, the defendant would have a lien on the property sold for the unpaid purchase-money, but it cannot for a moment be argued that title to the property would not pass until the full consideration money had been paid. Section 55 of the Transfer of Property Act, is perfectly clear on this point. S. 55, Cl. (4)(b), provides that where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, the seller is entitled 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. Therefore it recognizes that the title passes to the purchaser on the execution of the document, although the seller is entitled to have a charge on the property for the amount of the purchase-money or any portion thereof remaining unpaid to him with interest thereon. No doubt the opening words of Section 55 of the Transfer of Property Act, are:
“In the absence of a contract to the contrary.”
4. There may, no doubt, be a contract between the parties that title to the property will not pass to the purchase until the full consideration money has been paid, but such a contract must be alleged and proved and the onus would undoubtedly lie on the party setting up the contract. As I read the judgment of the lower appellate Court, it finds that there was such a contract in this case, but, in my opinion, the lower appellate Court was not entitled to make a case for the defendant which the defendant himself did not make. The whole case of the defendant in the written statement filed before it is that he never executed the conveyance dated 6th January, 1916. That was the only matter before the Courts below and the Courts below have found that the story told by the defendant is false. In my opinion the lower appellate Court was not entitled to go into the question whether there was or was not a contract to the contrary in this case. I am of opinion therefore that so far as this question is concerned, it must be held that title to the property passed to the plaintiffs and unless there be some sort of equity in favour the defendant, the plaintiffs are entitled to the reliefs claimed by them in the plaint. But it is urged on behalf of the respondents that there is in fact such an equity in this case in favour of the defendats. The learned vakil appearing on behalf of the respondents relies upon the petition for enlargement of time put in by the plaintiffs on 12th July, 1917. The argument, so far as I have been able to under stand the same, is that the plaintiffs putting in the application on 12th July, 1917 adopted in its entirety the decree? which was passed by the Court of first instance, and therefore the plaintiffs could not file an appeal from the decree of the Court of first instance.
5. The argument, so far as I understand the same, is an argument that the plaintiffs have elected one remedy and therefore are estopped from pursuing another remedy. In my opinion the argument is not well founded. It has been repeatedly held that election is the choice between two or more co-existent and inconsistent remedies. It is really based on the principle of estoppel. If two remedies are equally available to a party and if with his eyes open he pursues one remedy and if he fails therein, equity will step in and prevent him from pursuing the other remedy, because he chooses one remedy at his own peril and cannot turn round and say when he fails therein that he will, now pursue the other remedy which was available to him. But in this case can it be said that the plaintiffs had two inconsistent remedies? On the findings of the Court of first instance there was a sum of Rs. 95 undoubtedly due by them to defendant 1. They could pay in Rs. 95 to defendant 1 and yet challenge that portion of the decree which said that unless they paid in Rs. 95 they could not get a conveyance of the property in their favour. In my opinion the remedies were not inconsistent at all. The plaintiffs are undoubtedly liable to pay Rs. 95 and they could appeal from the decree passed by the Court of first in stance and yet pay in Rs. 95 to defendent 1. If the remedies available to the plaintiffs were not inconsistent in any way, then no question of estoppel by election arises in the case at all. In my opinion the judgment and decrees of the Courts below cannot be sustained.
6. I would therefore allow this appeal, set aside the judgments and decrees of the Courts below and give the plaintiffs a decree in terms of the reliefs Nos. 1, 2, 3 and 4 claimed by them Defendant 1 is undoubtedly entitled to a lien on the property in respect of the money still remaining unpaid.
7. He can pursue that remedy, but I do not think that I should in this decree fix a time within which the plaintiffs must pay Rs. 95 to defendant 1, I make no order as to costs.
V.S/R.K
8. Appeal allowed.