1. The short point in this second appeal is whether a plaintiff, who has not paid the purchase money of a property which has been conveyed to him, can maintain a suit for possession without paying for it or submitting to a decree for payment or a condition attached to the decree as to the purchase money which he had agreed to pay. No doubt it seems very reasonable that a man who comes to enforce his right against the property should be expected to do what is just and pay the price. But we think that there is no doubt whatever that the law in this country, following the English Law, is otherwise. Two Benches of this Court in Subramania Aiyar v. Poovan 27 M. 28 and in Rama Aiyar v. Vanamarnalai Aiyar 27 Ind. Cas. 336 have held that, in such cases as the present, the vendee can be compelled to pay the purchase money in extinction of the lien of the vendor before he gets a decree for possession. That mutt proceed on two assumptions. The first is that the vendor is entitled to a possessory lien in respect of his unpaid vendor's lien, and the other is that you can give relief against the consequences laid down in the Transfer of Property Act as following from a transfer by sale-deeds and conveyances. With regard to the first of these propositions, we think that it is an oversight of the learned Judges to have treated an unpaid vendor's lien which only creates a charge on the property sold as a possessory right exercisable in the face of the claim of the vendee to possession. With regard to the second, the matter was very carefully considered by two learned Judges of this Court, the late Chief Justice and the present Chief Justice, in Velayutha Chetty v. Govindasami Naicken 8 Ind. Cas. 334 : 9 M.L.T. 108 where they point out that the broad proposition involved is this: Can Courts give equitable relief to mitigate or suspend the consequences laid down by a Statute, and they came to the conclusion that such a proposition as that the plain words of the Statute could be whittled away by the application of the so-called equitable doctrines, was an absolutely untenable one and they expressed their dissent from the contrary decision in Baijnath Singh v. Paltu 5 A.L.J. 90. The same principle was really involved in the decision of the Full Bench of this Court in Kandasami Pillai v. Ramasami Mannadi 51 Ind. Cas. 507 . That was a case where it was part of the terms of a lease-deed or demise that the lessees should discharge a prior hypothecation on the land. It was found that this was not in the nature of a condition precedent but was merely a concurrent covenant with the other obligations of the parties to the document, and it was held by the Full Bench that the creation of a present demise involved the right to immediate possession by the person to whom the demise was made, unless it could be shown that any of the stipulations imposed upon him for performance were in the nature of conditions precedent.
2. The learned Judge in this case, besides the decisions in Madras which we feel constrained to hold are no longer good law in view of the Fall Bench ruling and of the ruling in Velayutha Chetty v. Govindasami Naicken 8 Ind. Cas. 334 : 34 M. 543 , refers to the case of Nil Madhab v, Raran Prosad 20 Ind. Cas. 325 !. That case is also reported in 19 C. L J. 146 . We think that the learned Judge clearly misconstrued the effect of the decision because the ground upon which that judgment really proceeds is this: that in that case there was evidence of an intention that a registered document was not to take effect ipso facto at once on execution and was not intended to be performed till something else had been done, Now if there had been evidence in this case that it was the intention of the parties that this sale-deed which is absolutely unqualified on the face of it should only come into effect when in fact the consideration had been paid, no doubt any Court would have the right to give effect to such a contract and to hold that there was such an intention. The section of the Transfer of Property Act which enumerates the respective duties of vendor and vendee is expressly qualified by the words in the absence of a contract to the contrary.' The Calcutta case held on its particular facts that there was a contract to the contrary and that, therefore, clearly the consequence of the Statute did not necessarily ensue.
3. The appeal must be allowed with costs.