1. The evidence in the case supports the finding of the Subordinate Judge that the promissory-note, Exhibit D, was executed as a part of the price of the land sold by the plaintiff to the 1st defendant. In order, for the 1st defendant, to succeed in his case it was for him to show and, I think, he has entirely failed to show it that any money was owing to him by the plaintiffs vendors, Ramasami Chetty and his brothers, at the time of the sale by the plaintiff to him. And ha would have to show also that there was nothing more owning to the plaintiff except the sum of Rs. 3000. Now as to the original transaction, Exhibit A, in 1897, recited that as the price of the land, the plaintiff took over the liabilities of Ramasami Chetty and his brothers which arose out of their dissolution of partnership. The recital was held to be proved in a former suit and that is alleged now by the plaintiff, and no reason has been shown to us why that should be disbelieved If that is so, it requires very strong evidence to show that the plaintiff had nothing to get at the date of the sale to 1st defendant except Rs. 3 000 or that having more to get, he agreed to sell for Rs. 3,000 land for which he paid the worth of Rs. 17,000. There is no such strong evidence and, consequently I do not feel any hesitation in accepting the Subordinate Judge's view, on the evidence which he has fully discussed, that the sale to the plaintiff in 1897 was a real transaction and the sale by the plaintiff to the 1st defendant, which was perfected by Exhibit F in 1901 was also a real sale for Rs. 17,000 which sum the 1st defendant rendered himself liable to pay.
2. Then the next point is as to the renewal and I have considerable doubt about this point. But without a renewal such as is alleged to have been effected in 1903 the promissory-note, Exhibit D, would have been barred by limitation, and, no doubt it is contrary to experience to suppose that a promissory-note for Rs. 14,000 would be lightly allowed to be barred by limitation Consequently, there is no prima facie improbability in the allegation that the promissory-note was renewed and we have though I think it is not perhaps worth very much, the defendant's admission in the former suit and this is supported by certain evidence--rather weak evidence--that the renewed note was lost. On the whole, I have come to the conclusion that I ought not to differ from the finding of the Subordinate Judge that there was a renewal of Exhibit D in 1903 and, consequently, there is no bar of limitation in the way of the present suit.
3. Then the only other question is whether the plaintiff is entitled to the mortgage decree which the Subordinate Judge has given him and which has been given him on the ground that he has a charge upon the property under Section 55 of the Transfer of Property Act, a charge which arises when the purchase-money or part thereof remains unpaid. Now here the transaction seems to be simple enough. The purchase-money contracted to be paid was Rs. 17,000. The 1st defendant gave the plaintiff a hundi for Rs. 3,000 and for Rs. 14,000 he gave him a promissory-note, but both these documents were given to the plaintiff a considerable time before the sale; they were given towards the end of 1900 and the sale' was completed by the conveyance Exhibit F in September 1901. From this fact, we are asked to hold that the sale was not a sale for money, Rs. 17,000, but was a sale in consideration of some prior obligation which had attached before the date of Exhibit F and which was liquidated by this transfer of the land. So that, at the date of the transfer, there was nothing unpaid to give rise to the lien. It seems to me that in order to accept this contention it is necessary to show, in order to make out a case that no statutory charge was placed upon the land, that these transactions were entirely independent and that, it is conceded, cannot be shown on the evidence in this case. I have no doubt that, though the promissory-note as well as the hundi were executed some months before the sale-deed, they were nevertheless intended to represent the money price of the land to be sold. There was only one transaction, the sale of land for Rs. 17,000; money was not paid down, was not intended to be paid down but was secured to the extent of Rs. 14,000 by the promissory-note. Now, it is not contended that, if that is so, if the plaintiff took the promissory-note as security for unpaid purchase-money, we ought still to hold that there was a contract which extinguished the charge or prevented its arising. It is conceded that on the cases which Mr. T.R. Ramachandra Aiyar has cited, we must hold that the promissory-note is presumably not an absolute payment and presumably the charge was not abandoned and it was not contended that presumption is rebutted by the evidence in this case.
4. This being my view on all the points raised in the case, the decree of the Subordinate Judge must be confirmed and the appeal dismissed with costs.
Abdur Rahim, J.
5. I am of the same opinion.