1. The plaintiff is the purchase, at a Court sale, of the right, title, and interest of one Pema, in a house.
2. The house originally belonged to the defendant Davu, who executed the conveyance (exhibit 13) in favour of Pema. This instrument was delivered to and duly registered by Pema. Although it is distinctly stated in it that the purchase-money had been paid, and the house delivered to Pema, it has been found by the Courts below that the consideration was, in fact, not paid, nor the property delivered; but that, on the contrary, Pema, being unable to raise the purchase-money, returned the deed to Davu eleven days after it had been registered, and that thus (in the opinion of those Courts) the whole transaction of sale fell to the ground.
3. All this took place before the attachment and sale of the house; and the question is, whether Pema, under the above circumstances, had any interest in the house at the date of the sale, or whether the property in the house remained in the defendant Davu. The Courts below have treated the transaction as an incomplete contract; and we are asked to deal with it under Section 39 of the Contract Act, which provides that, when a party to a contract has refused to perform his promise, the promisee may put an end to the contract. It is argued that Davu put an end to the contract, because Pema refused to pay the purchase-money. But we think that the transaction cannot be so regarded This was not a case of contract based on mutual promises. The deed of conveyance (exhibit 13) purports to make an immediate transfer of the ownership of the house, in consideration of value already received. It is not an agreement to convey, but a conveyance; and it is not open to the party who executed it to show that it was intended to be something quite different. When exhibit 13 had been executed, delivered, and duly registered, it operated as a conveyance, and Pema became the owner of the house. It is not pretended that he ever re-conveyed the house to Davu. What is alleged would, if proved, amount to an agreement to rescind the purchase; but the evidence offered to establish such agreement is not admissible. The endorsement made on exhibit 13, when it was returned by Pema, cannot affect the property, because it is not registered; and as exhibit 13 has been registered, no oral agreement to rescind it can be proved [Indian Evidence Act, Section 92, proviso (4)].
4. It follows that the plaintiff, as the purchaser of Pema's right, title, and interest, is the legal owner of the house. But he has acquired Pema's title subject to all Pema's liabilities. Even if the purchaser at a Court sale can be regarded as a purchaser for value without notice, the plaintiff cannot avail himself of that plea, since the defendant, and not Pema, was in possession at the date of the purchase. The defendant has a lien upon the house for the amount of the unpaid purchase-money; and the plaintiff cannot, any more than could Pema, obtain possession of the house without paying off this charge.
5. We reverse the decrees of the Courts below, and order that, if within six months from this date the plaintiff do pay to the defendant the sum of Rs. (162) one hundred and sixty-two, the house mentioned in the plaint be delivered by the defendant to the plaintiff; but that, in default of such payment, the plaintiff do forfeit his right to recover the said house. Each party will bear his own costs throughout.