Jagannadha Rao, J.
1. The question of law that falls for consideration in this appeal is whether the vendor of immovable property under an oral sale is entitled to claim a charge under Sec. 55(4)(b) of the Transfer of Property Act for the unpaid purchase money against the vendee after the expiry of 12 years from the date of the oral sale when the vendee has acquired title by adverse possession
2. The above question has arisen in a reference under Sec. 31(2) of the Land Acquisition Act which was disposed of in Op.No.21/81 by the learned Subordinate Judge, Kavali. The contest was between the two respondents before the lower court of whom M. Lakshmidevamma was the first claimant while her brother, J. Chandrasekara Reddy was the second claimant.
3. 2.36 Hectares of Land was acquired in the village of Leguntapadu in Nellore District by a notification published on 16-10-1979 under Sec. 4 of the Land Acquisition Act. The compensation payable according to the award was a sum of Rs.67,035.76. The Land Acquisition Officer passed an award dt.11-3-81 for the said sum in favour of the rightful owner and made a reference on 14-4-1981 to the Civil Court under sec. 31(2) of the Land Acquisition Act and meanwhile deposited the amount in the civil court. He pointed out that the acquired land stands registered in the name of the 2nd claimant Sri J.Chandrasekhara Reddy but the land is in the possession of the first claimant who has been paying taxes from 1970 onwards as per Exs.A-1 to A-7. He pointed out that the 2nd claimant gave a statement on 1-12-1980 (Ex.A-12) earlier to the effect that he has orally sold the property to the three sons of the first claimant in 1953 but that subsequently he claimed that the title continued to be vested in himself and that he was entitled to the entire claims that the property was sold to her sons orally in 1953 for Rs.1,20,000/- and that subsequently in the family partition in 1970 Ac.5-80 cents inclusive of this property was allotted to the first claimant and that she claimed to be the owner. After the reference the claimants filed their respective claims statements before the Sub-court., Kavali. The first claimant M.Lakshmidevamma examined herself as R.W.1 and filed Exs.A-1 to A-13 while the 2nd claimant examined himself as R.W.2 but did not file any documentary evidence.
4. On a consideration of the above material, Subordinate Judge came to the conclusion that the 2nd claimant had only agreed to sell the acquired land to the sons of the 1st claimant, the patta continued to be in the name of the 2nd claimant who took promissory notes for the balance of consideration, that the partition in the family of the 1st claimant allotting the acquired property to the 1st claimant was not binding on the 2nd claimant and that the sons of the 1st claimant could not claim the entire compensation without paying the balance of consideration to the 2nd claimant. He therefore held that no title passed to the 1st claimant or to her sons and that she has no right to put forward any claim. He further held that the 1st claimant or her sons are entitled only to the amount that may be left over after the 2nd claimant is paid the balance amount of consideration of Rs.50,000/- plus expenses which he had incurred by filing suits for realising the balance sale consideration. The remaining amount above mentioned can be paid to the 1st claimant only if her sons filed affidavits admitting that they are not interested in the said sum. The learned subordinate Judge rejected the contention of the 1st claimant that the title of the 2nd claimant stood extinguished by adverse possession in view of sec. 27 of the Limitation Act, in as much as the 2nd claimant took promissory notes which still remained unpaid as proceedings are pending in courts for recovery of the balance amount. In the result the learned Subordinate Judge directed in the first instance the payment of Rs.50,000/- plus costs incurred by the 2nd claimant in the suits filed by him for realising the balance of sale consideration, and for paying the remaining amount, if any, to the 1st claimant upon her sons filing affidavits.
5. Against the above said judgment and decree, the first claimant has preferred this appeal.
6. In this appeal, it is contended by Sr. C. Poornaiah, the learned counsel for the 1st claimant, that on account of the oral sale of the acquired land in 1953 in favour of her sons, they had acquired title by adverse possession, that later in a family partition this property was allotted to her in 1970 and that the tax receipts Exs. A-1 to A-7 showed her possession since 1970. When the land was acquired on 16-10-1979, she was the absolute owner entitled to the compensation. On the other hand, it is contended by Sri N.Subbareddy, the learned counsel for the 2nd claimant, that there was no sale but there was only an agreement of sale in 1953 for selling the acquired land and some other land to the 1st claimant's sons for Rs.1,20,000/-.
7. Out of that a sum of Rs.70,000/- was paid from time to time and Rs.50,000/- remained to be paid. The vendees were put in possession in 1953. In 1970 the three sons of the 1st claimant viz. Radhakrishna Reddy, Venkata Sesha Reddy, and Balarama Reddy executed separate promissory notes each for Rs.26,500/- in favour of the 2nd claimant. The promissory note executed by Radhakrishna Reddy on 5-11-1970 for Rs.26,500/- was renewed by fresh promissory note on 25-10-70 for Rs.31,231/-. These promissory notes dt 5-11-70, 25-10-1973 according to him amount to acknowledgments of the charge for the unpaid purchase money which can be enforced within 12 years from 25-10-73 under Art.62 of the Limitation Act, 1963. The promissory notes executed by the two other brothers Venkata Sesha Reddy and Balarama Reddy were assigned by the 2nd claimant for consideration to certain other persons who filed OS.Nos.78/82 and 74/82 in the Sub-Court Kavali as assignees of the promissory notes. He, therefore, contends that on account of the statutory charge available under Sec. 55(4)(b) of the Transfer of Property Act, the same could be enforced against Radhakrishna Reddy within 12 years from the date of execution of the renewal promissory note dated 25-10-73 against the 1st claimant who has notice of the charge and that therefore the 2nd claimant has a right to preferential payment of the compensation amount.
8. The first question that arises for consideration is: whether the transaction of the year 9153 by the 2nd claimant in favour of the 1st claimant's sons was an agreement of sale or a sale and if the 1st claimant's sons acquired title by adverse possession.
9. The 2nd claimant had given a statement earlier under Ex.A-8 on 9-9-1977 before Sub-court, Nellore in OS.No.143/76 clearly admitting that he has sold the property to his sister's sons for Rs.1,20,000/- The vendees had paid Rs.70,000/- in instalments and for the balance, three promissory notes were executed by each of the vendees for Rs.26,500/- The suit OS.No.143/76 was filed against one of the vendees viz. Radhakrishna Reddy. The 2nd claimant gave a further statement before the Revenue Divisional Officer on 1-12-1980 admitting that he delivered possession of the lands to his three nephews on condition that they should pay Rs.1,20,000/- that he (2nd Claimant) had not declared these lands before the Land Reforms Tribunal, that in the promissory notes executed by his nephews it is stated that the amount is due towards the debt payable in respect of these lands. In view of the above categorical evidence of the 2nd claimants, we cannot accept the present contention that the lands were not sold in 1953 or that there was only an agreement of sale. We therefore reject his present evidence given as R.W.2 that there was no oral sale in 1953.
10. In view of the oral sale in the year 1953, the 1st claimant's sons would acquire title only on completion of 12 years of possession of property and not before. There is no dispute that the 1st claimant's sons were in possession from 1953 and that the property was allotted to the 1st claimant in 1970 in a partition. The possession of the 1st claimant from 1970 is borne out by tax receipts Exs.A-1 to A-7. We have therefore no hesitation in coming to the conclusion that the 1st claimant's sons acquired title by adverse possession by 1965 and that the said title was transferred in a partition to the 1st claimant in the year 1970 and that the 1st claimant became the owner of the acquired land when the Land Acquisition Notification Dt.16-10-1979 was issued.
11. We next come to the more important question as to whether the 2nd claimant had a statutory charge for the unpaid consideration under sec. 55(4)(b) of the Transfer of Property Act and that whether the right to enforce the said charge was not barred by limitation by the date of the acquisition of the land in question on 16-10-1979.
12. Sri N. Subbareddy, the learned counsel for the 2nd claimant, contended that there was a statutory charge for the unpaid consideration of Rs.50,000./- with interest for which three promissory notes each by the three vendees were executed for Rs.26,500/-. In view of the renewal promissory note DT. 25-10-73 for Rs. 31,231/- executed by Radhakrishna Reddy in lieu of the promissory note dt. 5-11-1970 for Rs. 26,500/- there is an acknowledgement, according to him, of the charge under the Explanation (a) to sec. 18 of the Indian Limitation Act and that the charge for the unpaid consideration could be enforced within 12 years from 25-10-1973, the date of the renewal promissory note, thereby enabling the 2nd claimant to lay his hands on the substituted security of compensation.
13. It will be convenient to dispose of the subsidiary question of the limitation for enforcement of a charge assuming that there existed charge for the unpaid consideration in favour of the 2nd claimant. Sri. N. Subba Reddy has relied upon Explanation (a) to sec. 18 of the Indian Limitation Act which reads as follows:
'Explanation for the purposes of this section: (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has yet come or is accompanied by a refusal to pay delivery, perform or permit to enjoy, or is coupled with a claim to set-off. Or is addressed to a person other than a person entitled to the property right.'
The photostat copies of the promissory note dated 5-11-70, the renewal promissory note dt. 25-10-73, both executed by the 1st claimant's son Radhakrishna Reddy and the judgment in OS.No.143/76 Sub-Court, Nellore granting a simple money decree (without charge) in favour of the 2nd claimant against the said Radhakrishna Reddy have been produced before us by the 2nd claimant's learned counsel. We are of the view that these three documents are necessary for a proper disposal of this appeal and we mark the photostat copies of the promissory note dated 5-11-70 as Ex.B-1, the renewal promissory note dt. 25-10-73 as Ex.B-2 and the judgment in OS No.143/76 dt. 24.9.77 as Ex.B.3.
14. The recitals in the promissory note Ex.B-1 and the renewal promissory note Ex.B-2 would clearly disclose that they were executed towards the balance of the consideration due under the sale of the land by the 2nd claimant to the said Radhakrishna Reddy. We agree with the learned counsel for the 2nd claimant Sri N. Subba Reddy that an acknowledgment of the amount due towards the sale consideration is sufficient for the creditor to enforce the debt along with the charge in respect of the debt and that the acknowledgment need not specifically refer to the change. The language of Explanation (a) to Sec. 18 of the Limitation Act clearly states that the acknowledgment is sufficient though it omits to specify the nature of the property or right.
15. A similar question arose before a Division Bench of the Madras High Court in Syed Abdul Hag Sahib v. Raj Mahammad Kabuli (AIR 1943 Mad 28). In that case the property was sold and part of the consideration remained unpaid. The vendee mortgaged the property to a third party and in a suit by the mortgagee the property was brought to sale and purchased by a Court auction purchaser. In the meantime the original vendor acknowledged the existence of the debt in respect of the unpaid consideration . The question arose whether the acknowledgement should specifically refer to the change in respect of the unpaid consideration . The Division Bench held that it was not necessary that the acknowledgment should specifically refer to the change. It was sufficient if the liability was acknowledged though not the nature of the liability. Following the aforesaid decision we hold that if indeed the 2nd claimant had a charge for the unpaid consideration the same could be enforced under Act.62 of the Limitation Act within 12 years from 25-10-1973, the renewal promissory note executed by Radhakrishna Reddy in which it is clearly recited as having been executed towards the unpaid consideration due to the 2nd claimant.
16. So far as the two other promissory notes executed by the other two brothers Venkata Sesha Reddy and Balarama Reddy which were assigned for consideration by the 2nd claimant we express no opinion as to whether the assignees of the said promissory notes have a charge for the amount due and for which the assignees have filed the suits OS.Nos.74/82 and 78/82 on the file of Sub-court, Kavali.
17. The finding that the 2nd claimant could enforce the charge within 12 years from 25-10-1973 would avail the 2nd claimant had a charge under sec. 55(4)(b) of the Transfer of Property Act in his favour, for if he had no charge there was no question of the same renewal promissory note so as to keep it alive for 12 years from 25-10-73 under Art.62 of the Limitation Act.
18. It is contended by Sri. C. Poornaiah the learned counsel for the 1st claimant that in the case of an oral sale the provisions of Ss. 54 and 55 of the Transfer of Property Act are not attracted and that there is no statutory charge in favour of the vendor.
19. It is now well settled that in the case of an invalid or void sale the purchaser would be in possession and adverse to the title of the vendor and that even if though the sale itself does not confer any title immediately still the vendee acquires a valid title on the expiry of 12 years from the date of sale by virtue of the provisions of Sec. 27 of the Indian Limitation Act read with Art.64 thereof. It is also well settled that the position is no different in the case of an oral sale of immovable property of a value more than Rs.100/-. In the latter case also the vendee acquires title by adverse possession on the expiry of 12 years from the date of the oral sale.
20. In the case of an oral sale where part of the consideration remained unpaid but the vendee was put in possession the title of the vendor gets extinguished under sec. 27 of the Limitation Act only at the end of 12 years and till such time the vendor continues to be the owner. Therefore obviously till the expiry of 12 years from the date of oral sale there could be no question of the vendor claiming to have a charge for he could not have a charge on property of which he was himself the owner. That is one reason to hold that the provisions of sec. 55(4)(b) of the Transfer of Property Act which create a charge on the date of the sale itself are not attracted to the case of an oral sale for in the case of a regular registered sale of immovable property where, the consideration remains unpaid there would be a statutory charge under sec. 55(4)(b) from the very date of sale whereas in the case of an oral sale where the vendor remains the owner of the property for 12 years before the title is extinguished under sec. 27 of the Limitation Act there could be no claim for a charge for the vendor's unpaid consideration from the date of oral sale, for the vendor could not have a change over property of which he continued to be the owner.
21. The language of Ss. 54 and 55 of the Transfer of Property Act would also lead us to the same conclusion. The last para of sec. 54 of the Transfer of Property Act brings out the difference between a sale by itself does not create any interest nor charge in the property. Sec. 55(4)(b) of the TP Act provides that the seller is entitled, where the ownership of the property passed to the buyer before payment of the whole of the purchase money, to a charge upon the property in the hands of the buyer or a transferee without consideration or a transferee with notice of the non-payment. The statute itself provides that the charge arises only when the ownership of the property has passed from the vendor to the purchaser. Sec. 54 clearly provides that a sale is a transfer of ownership in exchange for price paid or promised or part paid and part promised and that such transfer can be made only by a registered instrument if the value of the property was more than Rs.100/-. Obviously the statutory charge referred to in sec. 55(4)(b) would arise only where the ownership of the property has passed in accordance with the provisions of sec. 54 viz., by way of a registered instrument in respect of property of the value of more than Rs.100/-.
22. A similar question arose before the Gujarat High Court in Nadoda Khima Keshar v. Bombay State, ILR (1967) Guj 323. There Bhagwati, J., (as he then was) was dealing with the question as to whether in the case of a sale which was void on account of the provisions of the Saurashtra Attachment of Agricultural Debtor's Property (Temporary Exemption) Act, 1954, a statutory charge was created in favour of the buyer under sec. 55(6)(b) of the Transfer of Property Act. It was held by the Gujarat High Court that the vendee could not have a statutory charge under sec. 55(6)(b) for the amount of consideration refundable to him by the vendor. Bhagwati, J (as he then was) observed:
'If the contract was void ab initio it is difficult to see how sec. 55(6)(b) could apply as to create a charge in favour of Magan Jiva on the field for the amount of the purchase money paid by him to the petitioner. The rule enacted in sec. 55(6)(b) in one of the several rules enacted in section 55 defining the rights and liabilities of the buyer and the seller of immovable property, subject to contract to the contrary between them. If the various rules set out in sec. 55 are scanned properly, it is clear that they postulate a valid contract of sale between the seller and the buyer and proceed to lay down the rights and liabilities of the seller and the buyer prior to the completion of the sale under the contract and also subsequent to the completion. There can be no question of any rights and liabilities between the seller and the buyer prior to the completion of the sale unless there is a binding and enforceable contract between them and where the sale is void and there is, therefore, no completed sale transferring title in the property to the buyer, no rights and liabilities can exist between the seller and the buyer................The opening part of sec. 55 which uses the words 'in the absence of a contract to the contrary' also reinforces the conclusion...................The words 'buyer' and 'seller' would also have no meaning if the rules set out in sec. 55 were held applicable in a case where the sale is void.'
23. The decision of the Gujarat High Court holds that the provisions of sec. 55(6)(b) creating a statutory charge in favour of a buyer do not apply to the case of an invalid contract of sale or sale. For the same reasons the provisions of sec. 55(4)(b) creating a charge in favour of the vendor for the unpaid consideration do not, in our view, also apply to the cases of invalid sales. We have already pointed out that the title of the vendor becomes extinguished, in the case of an oral sale of property of value of more than Rs.100/- only at the end of 12 years from the date of sale and that therefore the provisions of sec. 55(4)(b) creating a charge for unpaid consideration from the very date of sale cannot apply for the title does not stand transferred to the vendee on the date of sale itself.
24. For the aforesaid reasons we agree with the contention of the learned counsel for the 1st claimant Sri. C. Poornaiah that the provisions of sec. 55(4)(b) creating a statutory charge in favour of the vendor do not apply to the case of an invalid sale or an oral sale.
25. It is important to note that while in the cases of various other rights to property the Limitation Act only bars the remedy, in the case of a right to institute a suit for possession of any property including immovable property, not only the remedy but also the very right gets extinguished. Sec. 27 of the Limitation Act and not merely the remedy, the question arises as to the consequential vesting of the right in some other person or entity. It is well known that the right to property would not be in a hiatus but would have to vest in some person or entity known to law for otherwise it would, by the principle of escheat stand vested in the State. The Privy Council pointed out that the title would operate 'in favour of' the party in possession. Lord Romilly observed in Gunga Gobind Mundul v. Collector of 24 Pargunnahs (1866-67)11 Moo Ind App 345 (at 360,361 PC):
'The title to sue for dispossession of the lands belongs,in such a case, to the owner whose property is encroached upon, and if he suffers his right to be barred by the law of Limitation, the practical effect is the extinction of his title in favour of the party in possession..............................
Thus at the end of the period of 12years mentioned in Art. 64 of the Limitation Act the purchaser under the oral sale would acquire the title of the vendor under sec. 27 of the Limitation Act, 1963. Inasmuch as the provisions of sec. 55(4)(b) are not applicable to such an acquisition of title which is not one of the modes provided by sec. 54 of the Transfer of Property Act, there can be no question of the vendor obtaining any charge on the property after the transfer of title by virtue of the operation of sec. 27 of the Limitation Act.
26. Nor can we accept the contention that the vendor would have a charge for the unpaid consideration even in cases of oral or invalid sales apart from the provisions of secs. 54 and 55 of the Transfer of Property Act. The Privy Council while dealing with the unpaid vendor's charge in Webb v. Macpherson (1904) ILR 31 Cal 578 at 72 pointed out the distinction between the English and the Indian Law of Equity in this regard and observed (at page 72) as follows:
'With reference to the conveyance number of English cases were cited. No doubt English cases might be useful for the purpose of illustration, but it must be pointed out that the charge which the vendor obtains under the Transfer of property Act is different in its origin and nature from the vendor's lien given by the courts of Equity to an unpaid vendor. The lien was a creation of the court of Equity and could be modified to the circumstances of the case by the court of Equity. But in the present case there is a statutory charge. The Law of India , speaking broadly, knows nothing of the distinction between legal and equitable property in the sense in which that was understood when Equity was administered by the court of Chancery in England, and the Transfer of Property Act gives a statutory charge upon the estate to an unpaid vendor, unless it be excluded by a contract. Such a charge, therefore, stands in quite a different position from a vendor's lien.'
27. The above legal position is explained in Mulla's Transfer of Property Act (6th Edn) 1973 at page 334 where the learned author states that under the English Law the seller parts with the equitable estate as soon as the contract is made and equity gives him a lien, i.e. right to enforce payment out of the interest he has transferred and this lien continues after he has by conveyance parted with the legal estate. But the contract in India does not operate to transfer any estate, and so the whole ownership still being in the seller there is not and cannot be a lien before conveyance. The English lien is a right which begins with the contract, while the Indian charge is a right which begins with the conveyance. An equitable lien is a right derived from an equitable principle, whereas a charge is a right derived from contract or statute. The effect of both is the same, for both give the right to a court-sale. But there is this distinction that an equitable charge being a creature of equity can be moulded by Equity, whereas a statutory charge is more rigid and depends for its existence on the terms of the contract or statue. This distinction was explained by the Privy Council in the leading case of Webb v. Mecpherson.
28. In the present case there can be no question of the creation of a charge by contract inasmuch as there is no written contract and further under the Registration Act a charge can be created only by means of a registered instrument.
29. Thus in the case of an oral sale there is no statutory charge as provided under sec. 55(4)(b) of the Transfer of property Act, there is no equitable charge in view of the principles stated by the Privy Council, nor is there any contractual charge in the absence of a registered instrument creating ac charge.
30. In the view we have taken that the transaction of 1953 is an oral sale and not a contract of sale, the principle of apportionment of compensation in favour of a vendee-holding land under a written contract of sale with rights under sec. 53-A of Transfer of property Act cannot come to the aid of the second claimant. For that reason the decision rendered by one of us (Ramachandra Raju j.) in B. Appalanaidu v. B. Apparamma : AIR1983AP177 is, in our view, not attracted to the facts of this case.
31. For the above reasons we hold that when the second claimant orally sold the property in favour of the first claimant's sons in 1953 the vendees acquired a valid title by virtue of sec. 27 of the Limitation Act to the property by 1965, that the vendor does not have a charge for the unpaid consideration created in his favour either in 1953 or in 1965 or thereafter, inasmuch as the provisions of sec. 55(4)(b) of the Transfer of Property Act do not apply and there is no equitable charge in Indian Law for the unpaid purchase money apart from sec. 55(4)(b) of the transfer of Property Act nor is there any registered instrument creating a charge.
32. Thus neither the promissory note dt. 5-1-70 (Ex.B-1) nor its renewal dt. 25-10-73 (Ex.B-2) can be of any help to the second claimant for they can have the effect of keeping the unpaid sale consideration alive only as a simple debt but not in its character as a statutory charge. The second claimant having filed a suit OS.No.143/76 for recovery of money and also not having claimed any charge nor obtained any charge decree as per Ex.B-3 dt 24-9-77 he can only proceed in execution of the decree in the said suit in accordance with the provisions of Order 21, CPC. It is not now in dispute that in the execution proceedings in the said suit the second claimant brought some other properties of the judgment-debtor Radhakrishna Reddy to sale on 25-6-79 and realised Rs. 27,000/- and that for the balance he is yet to execute the decree. A petition to set aside the said sale is also said to be pending. But for the purpose of the present case it is sufficient for the first claimant to prove that there is no valid charge in favour of the second claimant existing on the property acquired by Government so as to fasten on the compensation amount into which the lands stood converted by virtue of the land acquisition proceedings.
33. In view of our conclusion that the second claimant has no charge on the property sold, he has no charge on the property sold, he has no charge on the compensation. As there is no charge, there is no question of treating the first claimant in whom the property vested in 1970 as a person who has become owner with notice of a charge. Thus the first claimant would be entitled for payment of the entire compensation amount in her own right, for she possessed the property free from any charge in favour of the second claimant. She is thus entitled to the compensation amount absolutely without any hindrance from the second claimant.
34. For all the above reasons we set aside the judgment and decree passed by the trial court and allow the appeal. We hold that the second claimant is not entitled to recover from the compensation amount either the unpaid purchase money or the expenses incurred by him in the suits filed by him for recovery of the said sum. The entire compensation amount lying in court with the interest accrued thereon is liable to be paid out to the first claimant, the appeal is allowed, but having regard to the fact that the first claimant and her sons did not pay the consideration, as agreed, to the second claimant, we direct that the parties do bear their own costs in this appeal and in the lower court.
35. Appeal allowed.