1. In this appeal the first question that arises and one which formed the leading part of the argument in appeal was that the vendor's lien in this case had been given up by a contract to the contrary. The plaintiff's husband sold a certain property to the 1st defendant and a sum of Rs. 10,000 was not paid in cash but a promissory note was executed for the amount. It is of course possible that the parties might have intended that this promissory note by itself would form part of the consideration and that they would not treat the Rs. 10,000 as unpaid purchase-money. The only question is whether in he present instance that was the intention of the parties. It is clear that this intention is negatived by the recital in the sale-deed by which the vendee was not to alienate the property until the promissory note had been discharged. If the lien was abandoned, this provision is perfectly useless for it can only be of use in order to enforce such a lien. That lien is given by Statute and continues until there is a contract between the parties that it shall cease. Even the fact that the renewal of the first promissory note is taken in the name of the vendor and his wife for either or survivor does not remove this lien in view of the recital in the document. We agree with the learned Judge that this lien was not given up by the vendor.
2. A further point has been taken in appeal, namely, that the very fact of getting the pro note renewed in the vendor's name and also his wife's name is proof of the abandonment of the lien, and reference has been made to a case recently decided in this Court Swaminatha Odayar v. Subramania Iyer 100 Ind. Cas. 10 : 1927 51 M.L.J. 856 : A.I.R. 1927 Mad. 219 : 25 L.W. 411 : 50 M. 548. After referring to that case and as a development of the argument it was contended that the plaintiff who is only the wife of the vendor and, therefore, a third party to the original contract, could have no vendor's lien. This assumes that the plaintiff is not also the legal representative of the vendor. The point was not taken in the written statement, nor is it even taken in the grounds of appeal to this Court, but it is sought to be put forward now as a pure question of law and; therefore, one which should be allowed to be taken for the first time in arguing the appeal. Apart from the facts that the other side had no notice whatever of this contention, there are various other reasons against the advisability of allowing this course to be taken. If this case had been taken in the pleadings it would have been open to the plaintiff to amend her plaint or possibly withdraw the suit with leave to bring another suit, or it might be within her power to prove that she is the legal representative. She is now deprived of these opportunities, but it is suggested that the remedies which would have been open to her before the trial began are still open to her. That may be so, but she would still be seriously prejudiced by having been allowed to proceed through two Courts without any objection being taken. In these circumstances we must decline to discuss this ground of appeal which is put forward for the first time in the course of the argument, and which depends upon a fact of which no evidence has been adduced.
3. The appeal is accordingly dismissed with costs.