P.C. Banerjee, J.
1. This appeal arises in a suit brought by Suraj Bhan, a minor, through his guardian and next friend for possession of a house. It is stated in the plaint that Musammat Radha was the owner of the house and jointly with the defendant and Musammat Jeoni, now deceased, sold it to the plaintiff through his father and guardian Narain Das' under a sale-deed dated the 1st of April 1912; that out of the amount of consideration for the sale they received Rs. 51 as earnest money; that they refused to have the sale-deed registered but the plaintiff got it compulsorily registered; that Musammat Radha and Jeoni are dead and the defendant is in possession of the house; that the plaintiff repeatedly asked the defendant to receive the balance of consideration money, but that the latter refused, to take it and has withheld possession. It is further alleged in the plaint that the plaintiff is ready and willing to pay the balance of consideration and it is prayed that it be caused to be paid to the defendant.
2. The defendant, in her written statement, denied the execution of the sale-deed and pleaded that even if it was executed by Musammats Radha and Jeoni she was not bound by it, that it was invalid and that no relief could be granted to the plaintiff on the basis of it.
3. The Courts below have not tried the case on the merits. They have treated the suit as one for specific performance of a contract and have held that a minor, being incapable of entering into a contract, could not purchase property and that the plaintiff is, therefore, not entitled to maintain the suit. On this preliminary ground they dismissed the suit. The learned District Judge relies on the decision of their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 (P.C.) : 9 A.L.J. 33 : 39 C. 232 : 16 C.W.N.74 : 21 M.L.J. 1156 : 11 M.L.R. 8 : (1912) M.W.N. 22 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 39 I.A. 1. In the argument before us the case of Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 441 : 30 I.A. 114 (P.C.) also decided by their Lordships, has been referred to on behalf of the respondent. In our judgment neither of these rulings has any bearing on the present case. In the case last mentioned the suit was brought against a minor to enforce a contract entered into by him. It was held that such a contract was void and could not be enforced. The former was a suit on behalf of a minor for specific performance of a contract to sell. It was held that such a contract could not be specifically performed. The suit before us is not a suit to enforce a contract against a minor and it is not a suit for specific performance of a contract. The Court below is, in our opinion, wrong in holding that this is a suit for specific performance. The suit is not based on a contract but is founded on the title acquired by the plaintiff under the sale-deed executed in his favour. The sale is referred to as evidence of his title. Where a contract has been made for sale of immoveable, property, and that contract has not bean completed-by the execution of a sale deed, no title in the property is vested in the purchaser until the execution of the sale deed. This is provided in Section 54 of the Transfer of Property Act, in the following terms: 'A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.' In the case of a transaction which has not advanced beyond the stage of a contract to sell, the remedy is a suit for specific performance of the contract. Where, however, a sale-deed has been executed and, in the case of tangible immoveable property of the value of one hundred rupees and upwards, registered, the title to the property vests in, and the owner-ship of it passes to, the purchaser. And as held in Shib Lal v. Bhagwan Das 11 A. 244 : A.W.N. (1889) 96 and Baijnath Singh v. Paltu 30 A. 125 : 5 A.L.J. 96 : A.W.N. (1908) 38 this will be so even if the purchase-money has not been paid. In such a case the remedy is not a suit for specific performance but one for possession on the strength of the ownership acquired by virtue of the sale-deed. The present suit is a suit of this last description, and not one for specific performance. A sale has been defined in Section 54 of the Transfer of Property Act as 'a transfer of ownership in exchange for a price paid or promised and part paid and part promised.' Prepayment of price is not a condition precedent to the transfer of ownership and a transaction is nonetheless a sale if the price has not been paid in whole or in part. By Section 55, Sub-section (1)(f), of the same Act it is provided that a seller is bound, on being so required, to give the buyer possession of the property sold. If the whole of the parchase-money has not been paid the seller is entitled, under Sub-section (3) of the same section, to withhold documents of title. He is also entitled under Sub-section (4), Clause (b), to a charge for unpaid parchase-money 'upon the property in the hands of the buyer.' This last Clause assumes, that the ownership of the property has passed to the buyer. It was held by the Madras High Court in Velayutha Chetty v. Govindasawmi Naiken 30 M. 521 : 17 M.L.J. 450 : 3 M.L.T. 10 that the 'lien of the unpaid vendor of land under Section 55 of the Transfer of Property Act is non-possessory. He has only a right to retain the title-deeds and to a charge for the unpaid purchase-money but. he cannot retain possession of the property sold against the vendee.' As pointed out by the learned Judges this view is also in consonance with the English Law on the subject. (See Fisher on Mortgages, 6th Edition, Section 505.) It is thus clear that non-payment, of consideration does not prevent the transfer of owners ship to the buyer and does not entitle, that seller to retain and withhold possession. No doubt, on equitable principles, the Court will1 not make a decree for possession in favour of the purchaser without attaching to it a condition directing payment of the purchase-money. This was done in the two cases decided by this Court to which we have referred above. But non-payment, of the purchase-money is, as shown above immaterial, so far as the question of the vesting of title is concerned. In the present, case it was alleged on behalf of the plaintiff, that he was-always ready and willing to pay the balance of purchase-money, but that the. defendant had refused to take it. It cannot therefore, be said that non-payment of the purchase-money vitiates the title acquired under the sale-deed.
4. The next question to. be considered is whether the fact of the; minority of the plaintiff-affects his right to maintain this suit. The Transfer of Property, Act does pot declare a minor to be incompetent to purchase property, and we have not been referred to any other statutory enactment which disqualifies, him from doing so. On the contrary there is a mass of authority in favour of the view that a minor can acquire and, hold, property. The purchase of property by a minor through his guardian is very common in this country. It was held by, this Court in Ulfat Rai v. Gouri Shanher 11 Ind. Cas. 20 : 33 A. 657 : 8 A.L.J. 670 that there is 'nothing in the Transfer of Property Act which makes a minor incapable of being, the transferee of immoveable property.' The same view was held by the learned Chief Justice and Rafique, J., in the recent case of Munni Koer v. Modem Gopal 31 Ind. Cas. 792 : 13 A.L.J. 1084 : 38 A. 62. The Calcutta High Court in Bahal-ud-din v. Rafaqat Husain 18 Ind. Cas. 451 and the Judicial Commissioner of Oudh in Raghunath Bakhsh v. Muhammad Bakhsh 30 Ind. Cas. 200 : 18 O.C. 115 : 2 O.L.J. 200 expressed the same opinion. The only decision to the contrary is that of the Madras High Court in Navakoti Narayana Chetty v. Loyalinga Chetty 4 Ind. Cas. 383 : 33 M. 312 : 19 M.L.J. 752 : 7 M.L.T. 233. With great respect we are unable to agree with the learned Judges who decided that case. It is to be observed that the view taken in this case was not adopted by that Court in the later case of Muniya Konan v. Perumal Konan 18 Ind. Cas. 963 : 24 M.L.J. 352 : 13 M.L.T. 311. In Mohori Bibee v. Dharmodas. Ghose 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 441 : 30 I.A. 114 (P.C.) and Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 (P.C.) : 9 A.L.J. 33 : 39 C. 232 : 16 C.W.N.74 : 21 M.L.J. 1156 : 11 M.L.R. 8 : (1912) M.W.N. 22 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 39 I.A. 1 their Lordships of the Privy Council did not decide that a minor could not purchase property and we do not understand the effect of those rulings to be to declare him disqualified.
5. It was strenuously argued on behalf of the respondent that although the fact of the parchaser in this case being a minor might not have precluded him from maintaining the suit, the circumstance that a great part of the consideration remained unpaid made a difference, that the seller was entitled to retain possession is enforcement of her lien for unpaid purchase-money and that she could not sue the plaintiff for the balance of the purchase-money, the contract by him to pay it being void by reason of his minority. As we have already pointed out, non-payment of consideration does not prevent a purchaser from acquiring title under his purchase and it is immaterial whether he is a minor or of full age. We have also shown above that the seller's lien for unpaid purchase-money does not entitle him to retain possession of the property sold. We have also pointed out that under the rulings of this Court the decree for possession in a case like this must be subject to the condition that the balance of the purchase-money should be paid by the plaintiff. There would, therefore, be no occasion for the defendant to sue for the purchase-money Furthermore, the plaintiff's case is that he offered the purchase-money and has always been and still is ready to pay it. If therefore, he was competent to purchase, the fact of non-payment of the purchase-money, under the-circumstances alleged, cannot in law-or equity deprive him of the right he has acquired in the property. Moreover, the allegation in the plaint is that the purchase was made through the father and guardian of the plaintiff and in the receipt for earnest money, granted by the vendors; which has been produced by the plaintiff, it is stated that-.the purchase was made by Narain Das (the plaintiff's father and guardian) and that he would pay the balance of price. If this document is genuine, the purchase was made by the plaintiff's father for him and he would be liable for the purchase-money. No question of non payment of such money, there fore arises Muniya Konan v. Perumal Konan 18 Ind. Cas. 963 : 24 M.L.J. 352 : 13 M.L.T. 311 two learned Judges, of the Madras High Court observed that 'it cannot be denied that a person may, purchase property and hold it as trustee for a minor. There is no reason why he should not create a trust by purchasing it in the, name of the minor. No contractual obligations are undertaken by the minor in such a case. Any personal obligations arising as between the vendor and the vendee would have to be discharged by the party contracting with the vendor.' These remarks are applicable, to the circumstances of this case. It cannot be said that the vendor would be in a worse position, than the vendee-and would be without remedy for the realization of the purchase-money.
6. For the reasons stated above we hold that the present suit is not one for the specific performance of a contract and no question of mutuality arises; that a minor is competent to purchase property; and that if the sale-deed relied upon by the plaintiff is genuine he has by virtue of it acquired a title to the property sold and is entitled to maintain the suit.
7. Another ground on which the lower Appellate Court has decided against the plaintiff is that he has no cause of action against the defendant. This ground is wholly untenable. It is alleged in the 4th paragraph of the plaint that the defendant is in possession of the, house claimed and this paragraph is admitted by the defendant in her written statement. There is, therefore, a clear cause of action against the defendant.
8. We, therefore, allow the appeal, set aside the decree of the Courts below and remand the case to the Court of first instance for trial on the merits. Costs here and hitherto will be costs in the cause.
9. I agree with the judgment that has been delivered by my brother Mr. Justice Banerji. Throughout the argument in Court it seemed to me that the contention on behalf of the respondent was right. It was not until my attention was drawn to Section 55 of the Transfer of Property Act that I could see an answer to what I regarded as the unassailable position taken up by the respondent and affirmed by the judgment in the Court below. But looking at Section 55 and particularly Sub-section 3 and Sub-section 4(6), it is quite clear that provision is there made for a non-possessory lien in favour of the vendor; that is to say, by one part of the section, where there has been a failure to pay the whole of the purchase-money, he is apparently entitled to withhold the documents of title, and further where the title to the property has passed to the buyer, he has a charge upon the property for the unpaid purchase-money in the hands of the buyer. That is inconsistent with his withholding possession. Apart from that section it seemed to me, in the particular circumstances of this transaction, that the vendor was in rightful possession, and the vendor being in rightful possession, the purchaser could not obtain possession. Having regard to Section 55 I am now satisfied that that view is fallacious and some trouble might have been saved if attention had been drawn to the Section during the argument. It is another illustration of the importance of paying attention to the language of the Code. So long as you keep to the Code, you may make a false stay but you are not likely to take the wrong road. The result, in this particular case and in all such cases, is obviously to inflict what might be described as injustice upon the vendor, because it is clear, that a minor under such circumstances as these would have, and the minor in this particular case had, twelve years within which to exercise his option as to whether he would take, possession or not, and during that time toe vendor, who would be unable to sue for the purchase-money, would remain in possession of another person's property with certain, obligations resting upon him, uncertain as to whether the transaction would ever be completed or not. There are possibly two answers, to that. It may be said that a purchaser from a minor must take his chance inasmuch as the law has set its face against minors entering into any obligations at all. Secondly, it may be presumed to be a somewhat rare occurrence that for a period of no less than two years there should be a purchase' who did not want the property and a vendor who did not want his money. There is probably something behind this case which further investigation will elucidate, and under the circumstances am not sorry that the result of our decision is that the case goes down to the Court of first instance for, evidence to be taken on the merits and for the true facts to be investigated. I agree in the order passed.