Skip to content


Haji Bashir Ahmad Khan Vs. Nazir Ahmad Khan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All74; 63Ind.Cas.495
AppellantHaji Bashir Ahmad Khan
RespondentNazir Ahmad Khan and anr.
Excerpt:
.....section 55(4)(b) - sale--consideration paid in part--agreement to pay balance by instalments--vendor's charge on property, whether abandoned--suit to enforce charge--limitation. - - section 55 of the transfer of property act distinctly says that in the absence of a contract to the contrary, where it be ownership of a property has passed to the buyer before payment of the whole of the purchase-money, the seller is entitled to a charge on the property in the bands of the buyer for the amount or any part of the purchase-money remaining unpaid and for interest on such amount. there is nothing in the wording of the two documents to show that there was any contract between the parties under which it was clearly understood or even implied that the charge granted by section 55 of the..........was brought on the 10th of february 1917 to recover the unpaid balance of the purchase money by sale of the property sold, in other words, to enforce the charge which is given to a vendor under section 55(4)(6) of the transfer of property act.3. the plea taken in defence with which we are concerned is that the suit was barred by limitation, because no suit had been brought within six years of the bond of the 13th of february 1905, which bond, we may note, was duly registered.4. the court below held that the execution of the bond was in no way inconsistent with the provisions of section 55 and as the period of limitation for a suit to enforce the charge given by that section was twelve years, and the suit had been brought within twelve years of the execution of the sale-deed, there was.....
Judgment:

1. The only point pressed in the Court below was the question of law which has been also raised before us. On the 10th of February 1905 the plaintiffs-respondents' predecessor-in-title sold certain Zemindari to the defendant-appellant for the sum of Rs. 799. Rs. 300 were paid in cash and in respect to Rs. 499 the sale-deed set out that it would in certain circumstances be not paid by the vendee to the vendor. Three days afterwards, i.e., on the 13th of February 1905, the vendee executed a simple agreement under which be agreed to pay Rs. 499, the balance of the purchase-money, in monthly instalments of Rs. 50 each, and further agreed that if two instalments in succession remained unpaid, the vendor should be entitled to recover the whole at once.

2. The present suit was brought on the 10th of February 1917 to recover the unpaid balance of the purchase money by sale of the property sold, in other words, to enforce the charge which is given to a vendor under Section 55(4)(6) of the Transfer of Property Act.

3. The plea taken in defence with which we are concerned is that the suit was barred by limitation, because no suit had been brought within six years of the bond of the 13th of February 1905, which bond, we may note, was duly registered.

4. The Court below held that the execution of the bond was in no way inconsistent with the provisions of Section 55 and as the period of limitation for a suit to enforce the charge given by that Section was twelve years, and the suit had been brought within twelve years of the execution of the sale-deed, there was no bar of limitation against it.

5. In the memorandum of appeal to this Court the same point is raised. There is also a plea that there was no covenant to pay interest and that the plaintiffs were not entitled to any interest on the amount claimed. So far as the first point is concerned, we have examined the sale-deed and the bond. Section 55 of the transfer of Property Act distinctly says that in the absence of a contract to the contrary, where it be ownership of a property has passed to the buyer before payment of the whole of the purchase-money, the seller is entitled to a charge on the property in the bands of the buyer for the amount or any part of the purchase-money remaining unpaid and for interest on such amount. There is nothing in the wording of the two documents to show that there was any contract between the parties under which it was clearly understood or even implied that the charge granted by Section 55 of the transfer of Property Act was abandoned.

6. It is argued before us that the taking of the bond itself was an indication that it was taken by the vendor in lieu of her right under Section 55 of the transfer of Property Act. With this it is impossible to agree. As a matter of fact the case is parallel in every respect with that of Webb v. Macphereon 31 C. 57 : 30 I.A. 238 : 8 C.W.N. 41 : 5 Bom. L.R. 838 : 13 M.L.J. 389 : 8 Sar. P.C.J. 55 (P.C.). That case was decided by their Lordships of the Privy Council and in it they sup wed clearly the difference between the English law as to a vendor's lien and the charge granted by Section 55 of the transfer of Property Act. In that case as in the present case after the execution of the sale-deed a simple agreement was taken by the vendor from the vendee, under which the latter agreed to pay the balance of the purchase-money by instalments. Our attention was called to a decision of the Madras High Court in Second Appeal No. 929 of 1916 decided on the 22od of November 1917 in Kristnaswami Iyengar v. Subramania Ganapathigal 44 Ind. Cas. 523 : 23 M.L.T. 85 : 7 L.W. 210 : (1918) M.W.N. 231 : 35 M.L.J. 304. That case does not help the appellants, for the fasts are not similar to these of the case before us, nor to these of Webb v. Macpherson 31 C. 57 : 30 I.A. 238 : 8 C.W.N. 41 : 5 Bom. L.R. 838 : 13 M.L.J. 389 : 8 Sar. P.C.J. 55 (P.C.). We are satisfied in the present case that the vendor had no intention whatsoever of relinquishing her charge under Section 55 of the transfer of Property Act. As to interest, the plea has equally no force in view of the language of Section 55(4)(6) of the transfer of Property Act. There is, therefore, no force in the appeal and we dismiss it with costs, including fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //