1. The appellant Hari Bapuji Patankar agreed on March 2, 1927, to purchase some fields situate at Mouje Zadgaon in the town of Ratnagiri from one Bhagu, wife of Sadu, for a sum of Rs. 700 out of which Rs. 650 were paid to the seller at the date of the contract. The conveyance was not executed, and possession was not delivered by Bhagu. That forced Hari (the appellant) to file a suit for specific performance which he did on March 18, 1930. In that suit a decree was passed on October 27, 1930, as follows:-'Defendant (Bhagu) do pay to the plaintiff the sum of Rs. 650 and the costs of the suit in April, 1931. The decretal amount is to be a charge on the property (which had been) agreed to be sold.' Before that decree, Siraj Murtuja, the respondent in this appeal, had obtained a decree for money on November IS, 1925, against the seller Bhagu. He filed execution proceedings in 1930 (Darkhast No. 243 of 1930), and obtained attachment of the property, the subject-matter of the agreement for sale on October 26, 1930, that is, one day before the decree in favour of the appellant Hari. The attached property was sold and purchased by Siraj on March 9, 1932, for Rs. 825. After setting off his claim under the money decree, Siraj deposited the balance of Rs. 398-11-0 into Court. On April 11, 1932, Hari filed execution proceedings against the judgment-debtor Bhagu as well as against Siraj Murtuja to recover Rs. 650 with interest and costs awarded to him under his decree. That claim was met by Siraj by the plea that he was a purchaser through Court without notice of the decree passed in Hari's favour, and that his attachment was prior to that decree. That contention has been upheld by the Courts below, and Hari has filed this appeal.
2. There can be no doubt that the rights of Hari as against the vendor Bhagu are governed by the provisions of Section 55 (6) (b) of the Transfer of Property Act. According to those provisions-
the buyer is entitled.. .unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase money properly paid by the buyer in anticipation of the delivery and for interest on such amount;... '
3. That undoubtedly gives the buyer a charge over the property which he has contracted to buy for the price prepaid. There is no question of ownership involved in the assertion of that charge, for, the ownership in the property would still be in the seller until the execution of the conveyance under Section 54 of the Transfer of Property Act, which in effect provides that a contract for the sale of immoveable property does not, of itself, create any interest in or charge on such property. But at the same time it does not destroy effectively the equities of the parties to the contract. Those equities are mentioned in Section 55, Clause (6), sub-Clauses (a) and (b). It has been urged that the equities under that section enure for the benefit of a buyer under a completed contract of sale upon execution of the conveyance and delivery of possession. That suggestion is obviously untenable upon the plain language of the clause, for if the conveyance were executed, the clause would have no application. If authority were needed, I would refer to Sime Darby & Co. v. Official Assignee (1927) 30 Bom. L.R. 290. The benefit which a buyer gets under Clause (6) (b) of Section 55 under an executory contract of sale is a charge on the property for the amount of his purchase money.
4. The question is whether that charge is subject to the provisions of Section 100 of the Transfer of Property Act, and is operative against persons claiming under the seller irrespective of notice. The provisions of Section 100 include in the definition of ' charge ' the charge created by operation of law, and as the buyer's charge is a statutory charge under Section 55 (6) (b) for purchase money paid in advance, its enforcement will be governed by those provisions as well as the provisions of Section 55 (6) (b). The important proviso to Section 100 on which the lower appellate Court has relied is as follows:...
Save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.
6. The question is whether there is any express provision of law for the time being in force dispensing with notice of the charge in the case of a buyer who has paid the purchase money in advance. That Siraj Murtuja is a transferee for consideration cannot be denied, and it is clear from the record that he was not a party to the proceedings in the suit for specific performance. No notice, therefore, can be imputed to him either direct or constructive. He is, therefore, a purchaser for consideration without notice of the charge in favour of Hari, the appellant.
7. It is, however, important to note that by the Amending Act XX of 1929 the words 'with notice of the payment' in Section 55 (6) (b) of the Transfer of Property Act have been omitted, and words in regard to notice in Clause (4)(b) of Section 55 were expressly inserted. The omission, therefore, was deliberate, and intended to make a change in the law as regards the buyer's charge for purchase money paid in anticipation of the conveyance. When the legislature effects a change of language by the omission of words which occurred in a statute, and those words were necessary to convey a particular sense, the omission must be construed as intended to convey a different sense. As Sir Dinshah Mulla has pointed out in his treatise on the Transfer of Property Act, 2nd edn., at p. 285, that omission ' makes the charge of the buyer for price prepaid effective not only against the seller but against all persons claiming under him irrespective of notice.' Therefore, if Hari had a statutory charge against the property purchased by Siraj, he could enforce it against that property, and the plea of want of notice would be of no avail. The lower Courts were in error in holding that the absence of notice of the charge was a complete answer to Hari's claim. I would, therefore, allow the appeal, reverse the orders of the lower Courts, and direct that the claim in the Darkhast shall be allowed with costs throughout.