Basil Scott, C.J.
1. The plaintiff sued for a declaration that a certain immoveable property belonged to him and for a decree that possession of the same should be delivered to him by the defendant. He bases his title upon a purchase of the properties in question from Narayan Gunpati. on the 5th of December 1911. It has been held by the lower appellate Court that prior to this date the plaintiff had notice of the execution of a contract for the sale of the same property by Narayan to the defendant. The defendant contends that he has paid to Narayana portion of the purchase money agreed upon and that the balance was to be paid after the sale deed was passed. It is found by the tower appellate Court that nearly half of the purchase moneys was in fact received by Narayan from the defendant under the contract of sale.
2. The question is whether the defendant has a good defence to a suit by a purchaser from Narayan who can rely upon a registered sale deed and whether he can, notwithstanding the sale deed, retain possession of the property on the ground that the plaintiff purchased with notice of the defendant's contract.
3. The defendant's right to enforce the benefit of the obligation of his intended vendor against the purchaser with notice is expressly affirmed by Section 40 of the Transfer of Property Act, as explained by the illustration. The plaintiff is, moreover, according to the Specific Relief Act, Section 3, a trustee for the defendant of the land purchased by him: see illustration (g). Section 91 of the Trusts Act affirms the same rule as the Specific Relief Act. The Legislature has herein adopted the law applied in the cases of Daniels v. Davison (1809) 16 IV 249 and Potter v. Sanders. (1846) 6 Hare 1 It is not contended that in the defendant's contract any date is fixed for performance nor is there any evidence that before he learnt of the plaintiff's purchase, the defendant had any notice that the vendor would refuse performance. Therefore, at the date of the plaintiff's suit, namely, the 16th of April 1912, a suit by the defendant against his vendor for specific performance would have been within time and if the plaintiff was at the date of suit in the position of a trustee for the defendant, the latter is clearly entitled to enforce that position up to the end of the litigation. It must not be taken from the above remarks that the defendant would be in a worse position in relation to the plaintiff if at the date of suit his right to sue his vendor for specific performance had been barred, since he is a defendant now relying upon his possession. In this connection reference may be made to Orr v. Sundra Pandia (1893) 17 Mad.255 Krishna Menon v. Kesavan (1897) 20 Mad. 305 and Rangnath Sakharam v. Govind Narasinv (1904) 28 Bom. 639.
4. The result is that the plaintiff cannot profit by his conveyance except to stand in the shoes of his vendor and receive the balance of the purchase money due, on payment of, which he would have to convey to the defendant. This, however, is not the relief which he seeks, and the result is that his suit for possession must fail.
5. This decision may appear to be inconsistent with the result arrived at in Lalchand v. Lakshman (1904) 28 Bom. 466 and in Kurri Veerareddi v. Kurri Bapireddi (1906) 29 Mad. 336 from which, if rightly decided, it would appear that the defendant would have no defence against a suit by his vendor for possession although by reason of the statutory provisions above referred to, he has a complete defence against his vendor's assignee, notwithstanding that the latter has no greater knowledge than the vendor possessed.
6. It may be necessary hereafter, when a suitable occasion arises, to consider in a Fall Bench whether the Transfer of Property Act necessarily involves such inconsistent positions. The facts of the present case do not raise the question decided in Lalchand v. Lakshman. (1904) 28 Bom. 466 When the question does arise for consideration the observations of the Privy Council in Immudipattam Thirugnana Kondama Naik v. Periya Dorasami (1900) 24 Mad. 377 and the words 'of itself' in the last clause of Section 54 of the Transfer of Property Act to which attention was called by Sir Lawrence Jenkins in Karalia Nanubhai v. Mansukhram (1900) 24 Bom. 400 will doubtless be considered.