Wali Ullah, J.
1. This is a plaintiff's appeal and arises out of a suit for possession and damages. The plaintiff's case briefly is this: There was a usufructuary mortgage granted in favour of defendant 1 Hub Lal. On 9th September 1932 he sold his rights to Chunni Lal, the plaintiff's brother. Chunni Lal applied for mutation but his application was dismissed on the objection of defendant 1. Chunni Lal died and the plaintiff as the surviving brother and a member of the joint Hindu family has brought this suit for possession and mesne profits. The details of the sale consideration are as below: Rs. 200 paid before the Sub-Registrar. Rs. 200 left with Chunni Lal to be paid to Bhiki Lal on account of a promissory note dated 15th January 1932 for Rs. 175. The plaintiff brought this suit on the definite allegation that he had made payment to Bhiki Lal on 28th September 1932. This Bhiki Lal, it must be borne in mind, was the plaintiff's wife's brother.
2. The learned Munsif did not accept the plaintiff's story about the payment to Bhiki Lal. He, therefore, decreed the suit for possession conditional on the plaintiff's paying to his vendor, namely Hub Lal, a sum of Rs. 200. This decree was challenged in appeal but the learned additional Civil Judge has affirmed the decree of the Court of first instance against the appellant before us. Mr. Jagdish Swarup, the learned Counsel for the appellant, has argued the case with great ability but has failed to convince us that the decree under appeal is wrong. The first question which falls for consideration is whether on the finding that the plaintiff made no payment to Bhiki Lal the sum of Rs. 200 payable to him enured for the benefit of the plaintiff or for that of his transferor, namely Hub Lal. Whatever controversy there might have existed at one time on this question, it has been set at rest by a decision of this Court reported in Rameshwar Dayal v. Hari Kishen : AIR1940All351 . That case has been followed in an unreported case, Second Appeal No. Babu Sarju Prasad v. Hanuman Das S.A. No. 891 of 1939, Decided on 26th January 1944.
3. The learned Counsel, however, contends that even on the finding that he did not make any payment to Bhiki Lal and even on the view that the benefit of that sum should enure for the benefit of his transferor he is entitled to an unconditional decree in this suit and Hub Lal can only claim a charge upon the property sold by him. This contention is no doubt supported by Gur Prasad v. Nunda Singh ('66) 1866 N. W. P. H. C. 160 but in Shib Lal v. Bhagwan Das ('89) 11 All. 244 a very eminent Judge of this Court has held that a conditional decree can be passed. At p. 251 Mahmood J makes the following observation:
Such an action can be maintained by any one who, like the plaintiff in the present ease, has acquired the ownership of immovable property, though, of course, in a case such as this, in common with some other classes of cases, equities may exist in favour of the defendant, so as to subject the decree for possession to restrictions and conditions appropriate to the circumstances of each case.
4. This case was further followed in Baijnath Singh v. Paltu ('08) 30 All. 125 and Mt. Pran Dei v. Sat Deo Tiwari : AIR1929All85 . The learned Counsel has, however, taken his stand on Ariff v. Jadunath Majumdar . The precise passage on which reliance has been placed is in these terms:
Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian statute may well be doubted.
Section 55, Sub-section (4), Clause (b), T.P. Act, enacts:
The seller is entitled where the ownership of the property has 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.
5. According to the contention of the learned Counsel the only interest which Hub Lal possessed was the charge upon the property. On a plain reading of Section 55 the contention of the learned Counsel does not receive any countenance. This no doubt is the right of the seller but by this right he will be driven to the necessity of claiming only if he has lost possession of the property. If he has lost possession of the property and brings such a suit the buyer has no defence but the converse proposition is not true. It was held in Nil Madhab v. Haran Prosad ('13)20 I.C. 3258 by the Calcutta High Court that the provisions of Section 55, T.P. Act, do not exclude the application of the principles of equity to the case before us. We entirely agree with the observations of Mahmood J., in 11 ALL. 244, which we have quoted above. This view was followed in Uti v. M.P.M.S. Chettiar Firm ('33)A.I.R. 1933 Bang. 401. The Rangoon case was decided after the Privy Council case in 58 Cal. 1235.
6. It is true, there are some authorities principally of the Madras High Court in Velayutha Chetty v. Govindaswami Naikan ('11) 34 Mad. 51310 and Krisnamma v. K. Mali ('20) 7 A.I.R. 1920 Mad. 164 which support the appellant's contention, but the preponderance of authority seems to be in favour of the view that has prevailed in this Court from the time that Mahmood J. decided the case reported in 11 ALL. 244. Apart from authority, we are of the opinion that the plaintiff came with a definite story that he had made the payment to Bhiki Lal and that story having been found to be false he has no equities in his favour. We are, therefore, of opinion that the view taken by the Court below is correct and we dismiss this appeal with costs. The plaintiff is allowed six months' time from today's date to make the payment.