(1) The defendant is the appellant. This appeal on his behalf arises out of O. S 30/1 of 1954, suit instituted by the respondent Somanna for possession of one third share in S. No. 157 situated in the northern side or in the alternative for the recovery of O S Rs 685 being the consideration of the real sale thereof. (2) The case of the plaintiff-respondent was that he sold one-third share in S No. 157 to the defendant for a consideration of Rs. 685 (O. S.). The sale-deed was kept with one Minka Rajanna, as the purchase amount was not paid to him, with instructions that as soon as the purchase amount was paid, the sale-deed should be handed over to the defendant. The defendant did not pay the amount, but somehow managed to get the sale-deed from Minka Rajanna and dispossessed the plaintiff in 1954. The defendant in his written statement admitting the sale transaction, pleaded that he said the consideration and got possession of the land from the plaintiff. He also stated that the sale deed could not be registered, because permission of the Taluqdar was not obtained. He, however, denied that he ever dispossessed the plaintiff, and stated that he was in possession as purchaser.
(3) The trial Court, after framing the necessary issues and recording the evidence of the parties, found that the consideration was not paid. He also found that possession was given to the defendant in pursuance of the sale-deed. Holding so, he gave a decree to the plaintiff for a sum of Rs. (O. S.) 685 equivalent to I. G. Rs. 587-2-4, with a further direction that in case the defendant failed to pay the amount, the plaintiff would be entitled to get back possession of the suit land. Aggrieved by the judgment of the trial Court, the defendant went in appeal. the plaintiff, it appears, did not file any cross-objections. The appellate Court agreed with the findings of the trial Court and dismissed the appeal. Hence the second appeal.
(4) In this second appeal, Sri Jahangir Ali, the learned counsel for the appellant relving on S. 55 (4) (b) of the Transfer of Property Act & Velayutha Chetty v. Govinda Swamy Naiken, (1910) ILR 34 Mad 543 and Venkata Jagannatha Rao v Venkata Kumara Mahipati Surya Rao, AIR 1936 PC 204 contended that both the Courts have erred in giving a conditional decree for possession to the plaintiff.
(5) On behalf of the other side, it is contended by Sri Kondapi, the learned counsel for the respondent that both the Courts were right in passing a conditional decree for possession as the plaintiff himself had asked for possession. I do not find any force in the contention. I do not find any force in the contention of the learned counsel for the respondent. S. 55 (4) (b)of the Transfer of Property Act enjoins 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, any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered. Under this provision in case of default of payment of purchase-money the seller is only entitled to a charge. There cannot be any question of his getting possession. An identical question had come up before the Madras High Court in the case of (1910) ILR 34 Mad 543 and it has been held.
'The provisions of the Transfer of Property Act that the vendee after conveyance is entitled to possession and that the vendor has a statutory charge on the property for unpaid purchase-money are clear and it is not competent the Courts in a suit for possession by the vendee to pass a decree for possession conditional on the vendee paying the balance of the purchase-money'
To the same effect is the decision of the Privy Council in the case of AIR 1936 PC 204. In this case, a mortagagee decree-holder purchased the entire mortgaged property in execution of his decree, with the permission of the Court, and after the expiry of the period of one month from the date of the sale but before the formal confirmation of the sale in his favour agreed to transfer a portion of the mortgaged property to the mortagagor for a certain sum. In pursuance of the agreement, a compromise petition was presented to the Court and the Court confirmed the sale, in respect of the mortgage property excepting the portion which was the subject matter of the transfer. The mortgagor judgment debtor failing to pay the amount executed a simple mortgage in respect of the property in favour of the decree-holder. The decree-holder brought a suit on the mortgaged to recover the money by sale of the mortgaged property. The lower appellate Court held that the transaction could not operate as a mortgage as the deed had not been attested. It was held by their Lordships of the Privy Council that the transaction in respect of the transfer of the portion of the mortgaged property although it could not operate as a mortgage, constituted a sale and that under S. 55 (4) (b) of T P Act the mortagagee-decree-holder was entitled to a charge upon the property transferred in the hands of the mortgagor judgment-debtor for the amount of the purchase-money and for interest thereon, and that the charge could be enforced by sale of the property under S. 100 of the Act and under O. 34, R. 15 C. P. C. as in the case of a simple mortgage.
(6) In view of these pronouncements, I cannot accept the view taken by both the Courts below that the seller is entitled to possession of the property in default of payment of the purchase-money. The decrees of both the Courts below have, therefore, to be modified.
(7) The appeal is allowed and the judgments and decrees of the Courts below are set aside and the plaintiff-respondent's suit is decreed to the extent of Rs. 685 (O. S.) equivalent to Rs. 587-2-4 (I. G.). In default of payment of the amount, the plaintiff-respondent will have a charge upon the suit property. The appellant will be entitled to costs throughout. No leave.
(8) Appeal allowed.