John Stanley, C.J. and Aikman, J.
1. This appeal arises out of a suit brought by a vendor to enforce payment of the balance of his purchase money by sale of the purchased property. The main question raised in the appeal is whether Article 111 of Schedule II to the Limitation Act, or Article 132 is applicable to the case. Article 111 provides for a suit brought by a vendor of immovable property to enforce his lien for unpaid purchase money and the period given for the institution of a suit under that article is three years. Article 132 provides for a suit to enforce payment of money charged upon immovable property, the period allowed for the institution of such a suit being 12 years. It is admitted that if Article 111 is applicable to this case the suit is barred, but if Article 132 applies the suit has been brought within time.
2. The respondent's case is that the suit is not a suit to enforce a lien within the meaning of Article 111, but is a suit to enforce a statutory charge created by Section 55 of the Transfer of Property Act. The Courts in this country have taken varying views upon this question, the Bombay High Court holding that Article 132 was the article applicable to a case of the kind, whilst, until quite recently, the Madras High Court held that the article applicable was Article 111. In this High Court there were also conflicting decisions. In the case of Baldeo Prasad v. Jit Singh Weekly Notes 1891, p. 130, Edge, C.J., and Tyrrell, J., held that Article 111 was applicable. But in a later case we find a carefully considered judgment delivered by the late Sir Arthur Strachey, the Court consisting of himself and Banerji, J., ruling that Article 132 applied. This was the case of Har Lal v. Muhamdi (1899) I.L.R. 21 All. 454. In a recent case in the Madras High Court--Ramakrishna Ayyar v. Subrahmania Ayyen (1905) I.L.R. 29 Mad. 305--the question was again considered, and in view of a statement of the law by their Lordships of the Privy Council in a recent case, to which we shall presently refer, the Court held, overruling the previous decisions, that Article 132 was the article applicable to a suit of the kind. The case to which the learned Judges in that case referred is the case of Webb v. Macpherson (1903) I.L.R. 31 Calc. 57. In that case their Lordships, at pp. 71 and 72, referred to Section 55 of the Transfer of Property Act, which provides that 'in the absence of a contract to the contrary * * * 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 for the amount of the purchase money or any part thereof remaining unpaid and for interest on such amount or part.' A number of English authorities were cited to their Lordships in that case, and dealing with these authorities they observed, at page 72: '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. That 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 distinction 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 contract. Such a charge therefore stands in quite a different position from a vendor's lien.' In view of this language of their Lordships it appears to us that we must take it as settled that a claim such as that referred to in the present case for the enforcement of the payment of purchase money by sale of the purchased property is a statutory charge differing from the lien which an unpaid vendor in equity possessed for the recovery of the balance of his purchase money and that therefore the article of the Limitation Act applicable to this suit is Article 132.
3. A minor question which has been raised in the appeal is that, the suit having been dismissed as regards one of the defendants Nazir Husain, he should have been exempted from the payment of costs. In view, however, of the relationship of Nazir Husain to the vendee, this is not a case in which we should interfere with the decision of the Court below on the question of costs.
4. The only other remaining question which has been brought to our notice is the following, namely, it is alleged by the vendee that she paid in respect of prior incumbrances upon the purchased property a considerable sum of money, exceeding, we are told, the balance of the purchase money duo by her, and she claims a right to set off the money so paid against a like amount of the purchase money. The deed of purchase has been translated for us, and so far as we can gather there is no provision in it that the vendee should be liable to pay off subsisting charges. On the contrary, the property appears to have been sold free from incumbrances; certainly there is no mention of any existing incumbrances. One of the duties of a vendor, as prescribed by Section 55 of the Transfer of Property Act, is to discharge, amongst other things, all incumbrances on the property existing at the date of the sale except where the property is sold subject to incumbrances. It therefore appears to us that the vendee is entitled, if she paid any prior incumbrance which the vendor was liable to pay, to set off the amount so paid against a proportionate part of the balance remaining unpaid of the purchase money or against the entire balance if the amount so paid was equal to or exceeded the balance. 'Whether or not any money has been paid in respect of prior incumbrances by the vendee has not been ascertained. The learned District Judge says in the course of his judgment that 'if it be found that the defendant appellant is entitled to a set-off on this head, it will be necessary to have this point determined, as the lower Court has recorded no finding upon it.' In the view which the learned District Judge took he did not go into this question. We think he ought to have done so, and before we finally determine this appeal we must refer an issue under the provisions of Section 566 of the Code of Civil Procedure for determination by him. The issue will be:
Whether or not at the date of the sale to the vendee appellant, any incumbrances on the purchased property were outstanding, and if so, whether the defendant vendee has paid any, and if so, what amount in discharge of those incumbrances
5. We accordingly refer this issue to the lower appellate Court, and we shall ask that Court to determine it with the utmost expedition. The Court will take such relevant evidence as the parties may tender. On return of the finding seven days will be allowed for filing objections. We shall reserve the question of costs for the final hearing.
6. [On this issue it was found that Munir-un-nissa had paid somewhat more than the amount of the unpaid purchase money. The appeal was accordingly decreed, and the plaintiff's suit dismissed with costs on the 7th of April, 1908.]