1. The plaintiff and the defendants are sisters. The plaintiff sued to recover possession of the house in suit alleging that it belonged to her father Shivlingappa, who sold it to her on December 15, 1920, for Rs. 1,000 and delivered possession. During her absence from the village she was dispossessed by the defendants, her sisters. The defendant No. 3 admitted the plaintiff's claim. Defendants Nos. 1 and 2 alleged that the transaction was hollow and colourable and without consideration, and denied plaintiff's possession. The first Court, the Subordinate Judge of Muddebihal, held that the purchase was proved, but no consideration was paid. He held that it was not proved that the transfer was colourable and without consideration, and he passed a conditional decree in the following terms : 'Plaintiff should take possession of the entire house described in plaint if within three months from the date hereof she pays defendants Nos. 1 and 2 Rs. 500. In default of such a payment her claim to a moiety of the house shall stand dismissed and in case of such default plaintiff will recover by partition only a half share in the house. 'The reason of the form of the decree is that Shivlingappa, the vendor, who is the father of plaintiff and defendants, having died without leaving male issue, the plaintiff and defendants became owners of the house. Defendants Nos. 1 and 2, who contest the claim, are entitled to one-half, and the plaintiff 1928 ia entitled to the other half, that is, one-fourth in her own right, and the remaining one-fourth of defendant No. 3 who admits her claim. Consequently the defendants Nos. 1 and 2, being Chinnava owners of half the house, are entitled to half the original consideration of Rs. 1,000, that is, Rs. 500. That is the reasoning on which the decree of the first Court is based. The plaintiff appealed to the District Judge, and the only grounds taken in appeal were, first, that the burden of proof on the issue of consideration should have been thrown on the defendants, and Secondary, that plaintiff had proved the consideration. The point as regards the conditional terms of the nature of the decree was not taken in appeal. The District Judge of Bijapur dismissed the appeal summarily, holding that the burden of proving consideration lay on the plaintiff, and that even if it did not, the burden of proving failure of the consideration had been discharged by the defendants. He, therefore, dismissed the appeal under Order XLI, Rule 11, of the Civil Procedure Code. The plaintiff makes this second appeal.
2. Two points are taken in the appeal. The first is that the burden of proof of consideration has been wrongly placed, and the second, which is the more important point and which was not taken in the Courts below, is that the decree in its conditional form cannot be supported. The first point may be disposed of very shortly. It is contended, on the authority of Gangadas v. Dama (1903) 5 Bom. L.R. 177 that the burden of proof rests on him who impugns the authenticity of a deed, the execution of which by the owners of the property to which it relates is admitted or proved, and the onus should properly be placed on the defendant who disputes payment of consideration when execution and receipt of consideration are admitted by the obligor. Shivlingappa, the original vandor, is dead, and beyond his admission on the sale deed, there is no other evidence to prove the consideration except what has been brought forward in the present suit, but the same judgment goes on at p. 178 to say : 'No doubt a defendant may be regarded as sustaining the on us as to consideration by eliciting statements from the plaintiff's witness sufficient to make the payment of consideration greatly improbable.' The Judge of first instance at p. 4, line 59 of his judgment states : 'There is such a great divergence in the (statements of the three witnesses that I feel convinced that they are lying,' This, therefore, supports the view of the learned appellate Judge that granting that the burden of proving failure of consideration is on the defendants, they have discharged it. So far, therefore, as the question of burden of proof is concerned, there are no reasons for differing from the view which has been taken by the lower appellate Court.
3. The second point, which was not taken in the lower Courts, Better J. is one of rather more difficulty. The learned pleader for the appellant has contended that under Section 55 of the Transfer of Property Act, Clause (1)(f), the seller is bound to give the buyer or such person as he directs such possession of the property as its nature admits, and he, therefore, contends that he is entitled to take possession of the property, that under Section 55, Clause (4)(6), the seller is only 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, therefore, the conditional decree of the lower Court by which the plaintiff was awarded possession on payment of Kb. 500 to defendants Nos. 1 and 2, being the unpaid purchase money, is wrong in law. In support of this contention he relies on a ruling of the Madras High Court in Krishnamma v. Mali I.L.R (1920) Mad. 712 The first Court, in the last paragraph of its judgment, has relied for the terms in which the decree is framed, on two cases of the Allahabad High Court, Shib Lai v. Bhagwan Das I.L.R (1888) All 244 and Baijnath Singh v. Paltu I.L.R (1908) All. 125 which were followed in Kevaldas v. Naginda (1909) 11 Bom. L.R. 383. The Madras High Court, in the case of Krishnamma v. Mali I.L.R (1920) Mad. 712 laid down, relying on another case of the Madras High Court in Velayutha Ghetty v. Govindasawmi Naiken I.L.R (1910) Mad. 543 that it is not in the power of the Court to give equitable relief to mitigate or suspend the consequences laid down by Statute, and that the plain words of the Statute, that is, of Section 55 of the Transfer of Property Act, could not be whittled away by the application of so-called equitable doctrines, and they expressly dissent from the contrary decision in Baijnath Singh v. Paltu. Now, whatever may be my own view of a question, I am bound, in a case where varying High Courts have expressed differing views on a point of law of some importance, to follow the rulings of this Court. The ruling the which I have referred above, viz., Kevaldas v. Nagindas, expressly follows the ruling in Baijnath. Singh v. Paltu, that is to say, this Court has expressed its approval of that decision of the Allahabad High Court, which has been dissented from in Krishnamma v. Mali and, therefore, although there may be no ease of this Court exactly on all fours with the present case, if I were to follow the Madras decision, I should be dissenting from that which has been approved of by this Court, viz., the case of Baijnath Singh v. Paltu. It is quite true that in Kevaldas v. Nagindas, it is stated (p. 385):
The fact that part of the consideration for a sale has not been paid does not make it void wholly or partially. All that the vendor is legally entitled to in that case is a lien on the property sold to the extent of the amount not paid.
Now in the Allahabad case of Baijnath Singh v. Paltu, it is sated that (p. 127):
In the case of Shib Lal v. Bhagwan Das I.L.R (1888) All 244 to which we have already referred, it was laid down by Mahmood, J., rightly, we think, that equities is ay exist in favour of a defendant to a suit like the present one so as to subject the decree to restrictions and conditions appropriate to the circumstances of the case. Here there is such an equity arising out of the non-payment of the purchase money by the plaintiff, and regard ought to be paid to it in any decision which the Court may pass,' and the decree was that (p. 127):
if within six months from this date, the plaintiff pay to the defendants the sum, of Rs. 200, the amount of the purchase money, the property mentioned in the plaint be delivered to him, but in default of such payment the plaintiff shall forfeit his right to recover the property. If the plaintiff do not pay the purchase money within the time aforesaid, his suit will stand dismissed with costs in all Courts.
The principle, therefore, laid down by the Allahabad High Court, was that in a suit by a vendee to recover possession of property, where all or part of the purchase money remain unpaid, the decree may be subjected to restrictions and conditions appropriate to the circumstances of the case. That decision was approved by this Court in Kevaldas v. Nagindas, although in that particular case no restrictions were imposed in the decree. I do not think it necessary to refer to Umedmal Motiram v. Davu bin Dhondiba I.L.R (1878) Bom. 547 where certain conditions were imposed in a case where one of the parties had a lien on the house for the amount oil the unpaid purchase money, because that case is prior to the Transfer of Property Act. But the other cases which are referred to above are subsequent to the Transfer of Property Act, and this Court appears to have followed the view of the Allahabad High Court in preference to that taken by the Madras High Court. The learned pleader for the respondents has referred to the case of Nilmadhab Parhi v. Hara Proshad Parhi (1913) 17 C.W.N. 1161 where it was held that the vendor had a lien on the land for the unpaid balance of the purchase money, and though the lien does not entitle him after execution of the conveyance to resume possession of the land sold, it gives him the right to keep the title deeds until payment, and that a Court of equity can direct the vendor to be again let into possession, if on a sale directed by it for enforcement of his lien the property is found unsaleable at an Chihnava adequate price, and that the right of the purchaser to obtain Baler J. possession under Section 55(1)(f) of the Transfer of Property Act and the right of the vendor to realize the unpaid balance of the purchase money under Section 55(4)(b) may be enforced in one action. In the decree the purchaser was directed to deposit in Court the unpaid balance of the purchase money within a time specified, failing which the suit was directed to be dismissed. At p. 1146 their Lordships say:-
We entirely agree in the observation of Mr. Justice Mahmcod in Shib Lai v. Bhagwan Das I.L.R (1888) All 244 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 Motiram v. Damt I.L.R (1878) All 244 by the Allahabad High Court in Baijnath Singh v. Pallu I.L.R (1908) All. 125 and by the Madras High Court in Subrahmania Ayyar v. Poovan I.L.R(1902) Mad. 28. With all deference to the learned Judges who decided the case of Velayutha Chetty v. Govindasawmi Naiken (1908)I.L.R. 543 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 Section 55(1)(f) of the Transfer of Property Act and the right of the vendor to realize the unpaid balance of the purchase money under Section 55(4)(b) should not be recognised and enforced in one action.
4. The case of Krishnamma v. Mali, referred to above, is baaed on the case in Velayutha Chetty v. Govindaswami Naiken, which has been disapproved of by the Calcutta High Court. The result, therefore, of the decisions would seem to be that the view adopted by the Allahabad High Court has been approved of by the Calcutta High Court and by this Court in the decisions referred to above, and it is only the Madras High Court that has taken the opposite view of the effect of Section 55 of the Transfer of Property Act in prohibiting the imposition of equitable considerations in the framing of a decree in a suit of the character of the present. In these circumstances I am bound to follow the previous decisions of this Court in approving of the decisions of the Allahabad High Court rather than that of the High Court of Madras, and, with respect, I may say that I agree with the views expressed by the Calcutta High Court in Nilmadhab ParH v. Hara Proshad Parhi that there is no reason why the rights of the various parties should not be decided in one suit rather than in a number of suits. If the plaintiff in this suit is given unconditional possession, and the defendants Nos. 1 and 2 are driven to a separate suit for the purpose of enforcing their lien for the unpaid purchase money, the result will be exactly the same as that pointed out by their Lordships of the Calcutta High Court at p, 1164 of the case quoted above, where they say:-
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 on force the lien which he possesses over the property for the unpaid purchase money.... It is obviously undesirable that the matter in controversy which may be settled without disadvantage to any of the parties, in a single litigation should be repeatedly agitated in a succession of suits.
5. I entirely agree, with respect, with these remarks, and in view of the considerations which I have referred to above, I am of opinion that although there is no Bombay case in which a conditional decree of the nature of the present decree has been passed, yet in the peculiar circumstances of the present case the decree of the lower Court should be confirmed, and the appeal dismissed with costs.