1. The plaintiff filed the suit out of which this second appeal arises for recovery of possession of certain properties on foot of a sale deed executed by the first defendant acting for himself and as guardian of his son the second defendant who was on the date of the sale a minor. The purpose of the sale was to discharge the debt which was admittedly due to one Subbaraya Pillai. Subbaraya filed a suit and obtained a decree, but for some reason the decree is no longer alive. It is said that the decree was allowed to become barred. The plaintiff alleges that he was in possession for some time and that he lost possession later on. Then he filed this suit for recovery of possession impleading both the father and son. Both the lower Courts have held that there was an intention to transfer the property and that the sale deed is a real transaction. They also repelled the plea of the defendant that there was a condition precedent to the sale deed coming into effect, namely, that it was only on payment of consideration that title was to pass. The result therefore seems to be that as decided by this Court in Velayutha Chetti v. Govindaswami Naicken I.L.R.(1910) Mad. 543 and Krishnamma v. Mali : (1920)38MLJ467 , the plaintiff would be entitled to get an unconditional decree for possession. Both the Courts also found that no consideration was paid by the vendee. The lower Courts were requested to give effect to the unpaid vendor's lien. The lower appellate Court passed a decree directing that the defendants were entitled to recover Rs. 500 if not paid within three months from the date of its decree by bringing the properties in question to sale in execution of this decree. In fact the learned Subordinate Judge gave a charge decree in enforcement of the unpaid vendor's lien. He also gave a decree for possession to the plaintiff. It is the decree that has been passed in favour of the defendants that is questioned by the appellant.
2. Under similar circumstances when this Court was asked to give effect to unpaid vendor's lien, it held in Velqyutha Chetti v. Govindaswami Naicken I.L.R.(1910) Mad. 543. that no such decree could be passed. The learned Judges said,
The provisions of the Transfer of Property Act that the vendee after conveyance is entitled to possession and that the vendor has a statutory charge on the property for unpaid purchase money are clear and it is not competent to the Courts in a suit for possession by the vendee, to pass a decree for possession conditional on the vendee paying the balance of the purchase money.
3. The decision of the Allahabad High Court to the contrary was not followed. The same point arose for decision in a later decision reported in Krishnamma v. Mali : (1920)38MLJ467 , The headnote runs thus:
A vendee who has not paid the purchase money for the lands bought by him is entitled to a decree against the vendor for possession of such lands. The Court cannot make the decree conditional on payment of the purchase money nor can it decree payment of the price to defendant in the vendee's suit.
4. The learned Judges pointed out, dealing with an earlier decision of this Court in Subramania Aiyar v. Poovan I.L.R.(1902) Mad. 28 which was relied on before them that the reasoning in that case was canvassed at great length in Velayutha Chetti v. Govindaswami Naicken I.L.R.(1910) Mad. 543 and that the correct principle was laid down in the later case. They also pointed out that the principle in Velayutha Chetti v. Govindaswami Naiken I.L.R.(1910) Mad. 543 was really the principle involved in the decision of the Full Bench of this Court in Kandaswami Pillai v. Ramaswami Mannadi (1918) 36 M.L.J. 313 : I.L.R. Mad. 712 though the Full Bench decision related to a lease where the lessee would not make the payment undertaken by him by discharging a prior hypothecation debt due by the lessor and it was held that the lessee was entitled to an unconditional decree for possession. The lower appellate Court was not under these circumstances entitled to travel beyond the decision in Krishnamma v. : (1920)38MLJ467 , and to follow a decision of the Bombay High Court in Baslingawa v. Chinnava I.L.R.(1931) 56 Bom. 556. It is enough to say that the present case is on all fours with that which came up for. consideration in Krishnamma v. Mali : (1920)38MLJ467 , It is not open to the lower Courts not to follow a direct decision of this Court and to rely upon what appeared to the lower appellate Court on some grounds of equity and follow a decision of another Court. This has been repeatedly pointed out and it is strange that even in these days the lower Courts are found to violate this principle and follow decisions of other High Courts. This cannot be too strongly condemned.
5. There is one other question involved and that is whether the sale is binding on the share of the second defendant who was a minor on the date of the sale. The sale was one effected by the father in order to discharge what was undoubtedly an antecedent debt. But the vendee did not pay any consideration for the sale deed. Though the sale was a real transaction and therefore operative so far as the father's share is concerned, it cannot be said to be binding on the son inasmuch as no consideration was paid by the vendee. It is not even a case where the vendee undertook to pay or discharge the prior debt of the father. But this is a case in which the amount is stated to have been paid at or before the date of execution, and the finding of both the lower Courts is that no money was in fact paid by the vendee at any time. If the money had been paid into the hands of the father then it might be that the creditor could urge that he was not bound to see to the application of the money and that he was satisfied with the existence of a prior debt for the discharge of which the sale to him was effected. As a result of the findings of the lower Courts the plaintiff is entitled to a decree for half the suit property and that without any condition attaching to it. That portion of the decree of the lower appellate Court which gives a decree to the defendants must be set aside.
6. In the result I pass a preliminary decree for partition and possession of a half share to the plaintiff and remand the case to the trial Court for appointing a Commissioner to divide the properties into two equal shares. A final decree will follow giving the plaintiff possession of the properties that are allotted to his half share. An enquiry as to the profits both prior and subsequent to the suit will be held and the result incorporated in the final decree. In the circumstances of the case I direct each party to bear his own costs throughout.
7. Leave to appeal is refused.