1. This appeal [see Velayutha Chetti v. Goindasawmi Naiken I.L.R. (1907) Mad. 524] was ordered to be re-heard on the ground that at the date of the former hearing the appellant was dead and no one had been brought on the record to represent him. At the rehearing it was contended that we were wrong in having given the vendee who was found not to have paid the whole of the purchase money an unconditional decree for possession and we were referred to the recent decision in Baij Nath Singh v. Paltu I.L.R. (1908) All. 135, in which it was held that although a vendea who has not paid the purchase money is entitled to maintain an action for possession against the vendor yet the vendor has an equity arising out of the nonpayment of the purchase money and that the proper decree is that if the plaintiff pay the purchase money within six months the property be delivered to him, and if he fail to do so his suit; do stand dismissed. The decision follows an obiter dictum, of Mahmood, J., in Shib Lal v. Bhagwan Das I.L.R. (1889) All. 244, that 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,' Now the provisions of the Transfer of Property Act that after conveyance the vendee is entitled to possession and that the vendor has a statutory charge on the property for unpaid purchase money are perfectly clear, and the effect of the decision in our opinion is therefore to override the provisions of the statute and to say that the vendee is not entitled to posses-jsion until he pays the purchase money and that the vendor is entitled to retain possession until he is paid. With great respect we think it is not open to the Courts of this country to introduce and enforce equities modifying the provisions of the statute law, In this connection we may refer to the language of Lord Davey delivering the judgment of their Lordships of the Judicial Committee in Webb v. Macpherson (1903) 30 I.A. 238, where he remarks that 'the law of India, speaking broadly, knows nothing of the distinction between legal arid equitable property in the sense in which that was understood when equity was administered by the Court of Chancery in England.' Even then if an unpaid vendor could set up such an equity in England either as to the land or the title-deeds, which would not appear to be the case [Goode v. Burton 1 Ex. 189], that would not entitle us to enforce such an equity here. With reference to the last cited case it is observed in Dart's ' Vendors and Purchasers,' p. 731, that when an unpaid vendor is sued for possession of the title-deeds by the vendee his proper course is to' counter-claim for the enforcement of his lien. If the present coda allowed of counter-claims and the vendor had so counter-claimed for the enforcement of his charge we might have been at liberty to do as the Allahabad Court has done, that is to enforce the unpaid vendor's charge by passing a decree for foreclosure against the vendee, but that is not the case before us.
2. Another point taken at the re-hearing was that even allowing due weight to exhibit 6 which was not considered by the District Judge there is other evidence that the fourth defendant's possession was adverse to the plaintiff, and that under these circumstances we ought either to affirm the judgment of the District Judge or call for a fresh finding. We think that as the District Judga has failed to consider exhibit G the latter will be the better course and have resolved to call for a fresh finding as to whether the suit is barred by limitation on the evidence on record.
3. Findings should be submitted within six weeks and seven days will be allowed for filing objections.
4. In compliance with the above order the District Judge found the suit not barred,
5. This second appeal coming on for final hearing, after the return of the finding of the lower Appellate Court, the Court delivered the following
6. On the finding, which we accept, the decree of the District Munsif is restored with costs here and in the lower Appellate Court.