1. The 1st plaintiff and his sons, having conveyed certain immoveable properties to the 1st defendant in 1918, in consideration of the 1st defendant paying them Rs. 500 in cash at the time of execution and undertaking to discharge three items of debt to third parties, amounting at the time to Rs. 1,600, Rs. 4,954 and Rs. 946 respectively, brought this suit to enforce their vendor's lien to which they are entitled by Section 55, Clause 4 of the Transfer of Property Act. It is thereby declared that 'the seller is entitled (a) to the rents and profits of the property till the ownership thereof passes to the buyer, (6) 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.'
2. It has now been established by the Fall Bench in Sivasubramania Aiyar v. Subramania Aiyar 37 Ind. Cas. 429 : 39 M.K 997 : 31 M.L.J. 530 : (1916) 2 M.W.N. 306 : 20 M.L.T. 375 : 4 L.W. 415 that a direction by the vendor to pay the whole or a part of the purchase-money to a third party does not necessarily imply a waiver by the vendor of his statutory lien. The decisions in Abdulla v. Mammali 5 Ind. Cas. 87 : 33 M. 416 : 7 M.L.T. 376 and Siva Subramania Mudaliar v. Gnanasammanda Pandara Sannadhi 10 Ind. Cas. 98 : 21 M.L.J. 359 : 10 M.L.T. 71 so far as they laid down a contrary principle, were overruled by the Pall Bench.
3. There is an observation in Raghunatha Chariar v. Sadagopa Chariar 12 Ind. Cas. 863 : (1911) 2 M.W.N. 227 : 10 M.L.T. 300 : 21 M.L.J. 983 : 36 M.k 348 that if the assignee enters into direct relations with the third party on the faith of the original direction and renders himself liable to make the payment to the third party, the assignor cannot, in such circumstances, require the assignee to pay the consideration to himself. So also in Sivasubramania Aiyar v. Subramania Aiyar 37 Ind. Cas. 429 : 31 M.L.J. 530 : (1916) 2 M.W.N. 306 : 20 M.L.T. 375 : 4 L.W. 415 Seshagiri Aiyar, J. observed that if the direction is communicated to the proposed payee, a completed contract may arise between the purchaser and the third party which may preclude the vendor from claiming the money. It is now suggested that such is the case here. It is argued that a new contract between the vendee and the creditors of the vendors to discharge the debts wipes out the former's liability to the vendors.
4. Reliance is placed on the mention in the sale-deed Exhibit V of the sum of Rs. 4,954 being received by vendor by transferring the liability to pay the principal and interest on the hypothecation bond executed for Rs. 4.000 to Theyagappa Mudali and on the 1st plaintiff's statement in cross examination that he had informed Kalyanasundaram Mudaliar, who is Thyagappa's brother, that he had transferred to the 1st defendant th6 liability to pay the amount to him (Kalyanasundara Mudaliar). But Kalyanasundaram Mudaliar went into the witness-box and did not say that he agreed to substitute the defendant's liability for the plaintiffs' liability : and the 1st defendant examined as defendants' witness No. 4 only stated that when he met Thyagappa Mudaliar and expressed his readiness to pay his debt according to the directions in the sale-deed, the latter said he would consult his father and that sometime thereafter his father received Rs. 1,700 from him and said that the balance would be taken when necessary. This is the only evidence on the point, and we are not satisfied from it that there was a completed contract between the 1st plaintiff's creditors and the 1st defendant that the 1st plaintiff and his sons should be excused from further liability to pay their debts and that the 1st defendant should be accepted as indebted to them in lieu of the 1st plaintiff and his sons. On this point the appeal fails.
5. The next contention urged for the appellants was that the suit was not maintainable as the plaintiffs have not performed their part of the contract to put the defendants in possession of the lands sold under Exhibit V, notably those which the 1st plaintiff declares to be included in the village of Agara Nirumalai and the 1st defendant declares to be included in South Radha Manakkudi and Kanna Pillai Kattala.
6. Now the survey numbers and the extents of each of the items conveyed to the 1st defendant by Exhibit V are given in the Schedule to the document. In the body of the sale-deed the villages named are those of South Radha Manakkudi and Kanna Pillai Kattalai and there is a residuary clause conveying such of the lands belonging to the plaintiffs 'as may have been omitted to be written in the said villages.' The onus, therefore, lay on the the defendants to show that any of the lands covered by the residuary clause had not been included in the schedule. In the opinion of the Subordinate Judge they did not succeed in discharging this onus, and after referring to the evidence we see no reason to come to a different conclusion. As regards costs the defendants did not prove that they had made any payments before suit and they did not deposit any sum into Court. They were, therefore, rightly liable for the plaintiffs' costs. The result, therefore, is that the appeal fails on all points and is dismissed with costs.
7. The form of the decree as drawn up in the lower Court is not as it should be. The amounts to be paid to the mortgagees should be calculated up to the date fixed and entered in the decree. This will now be one in this Court. Time for payment is extended to 25th day of November 1919.