1. This is an appeal by the first two defendants in a suitfor declaration of title to immoveable property and for recovery of possessionthereof. The subject-matter of the litigation admittedly belonged to the fourthdefendant who executed a conveyance in favour of the plaintiffs on the 17thJuly 1905 for a consideration of Rs. 657. The document was registered two dayslater but was not delivered to the purchasers. On the 17th March 1906, thepresent appellants took a conveyance of the same properties from the fourthdefendant; and the question in controversy between the parties is, whether theplaintiffs have acquired a valid title by their prior purchase. The Courtsbelow have found that the consideration mentioned in the deed was not paid inits entirety. One hundred rupees appears to have been paid by the plaintiffs tothe vendor before he transferred the land to the first; defendant insatisfaction of his dues. A further payment appears to have been made by theplaintiffs, and we may take it approximately that Rs. 500 still remains unpaid.On these facts it has been argued for the appellants that the transaction wasnot completed and that the vendor was not divested of his title whichconsequently was effectively transferred to the appellants under the conveyancesubsequently executed in their favour. In support of this view, reference hasbean made to the decisions of Sheo Narain Singh v. Darbari Mahton 2 C.W.N. 207;Mauladan v. Raghunandan : 27 C. 7. Sarat Chandra Naskar v.Hari Pada Mistri 4 C.L.J. 338 and Gostho Behary Ghose v. Rohini Gowalini: 4 Ind. Cas. 541 [LQ/CalHC/1908/113] : 13 C.W.N. 692. These cases, however, donot really assist the contention of the appellant. They are authorities for theproposition that the mere circumstance that a document has been registered doesnot conclusively show that it was intended to take effect immediately uponexecution and registration; if the parties intended that the document shouldnot become operative till the consideration had been paid by the purchaser andthe document delivered to him by the vendor, the Court would give effect tosuch intention: Goode v. Burton (1847) 1 Ex. 189 : 74 R.R. 663 : 16 L.J. Ex.309 : 11 Jur. 851; Bowler v. Burdekin (1843) 11 M. & W. 128 : 12 L.J. Ex.329 : 63 R.R. 541: Gudgen v. Besset (1836) 3 Jur. (N.S.) 212 : 6 El. & Bl.986 : 26 L.J. Q.B. 36 :5 W.R. 47 : 119 Eng. Rep. 1131 : 106 R.R. 899. The caseof Manoji Singh v. Sarat Lal Mahto 4 C.L.J. 334 furnishes an illustration of acase where title was taken to have vested in the transferee though theconsideration had not been paid. In the present case the Courts below haveconcurrently found that there was no intention on the part of the vendor or thepurchasers to postpone the operation of the conveyance till consideration hadbeen actually paid. It is impossible for us to disturb this finding in secondappeal. We must hold, accordingly that title vested in the plaintiffs under theconveyance of the 17th July 1905.

2. The next point which requires consideration is, whetherthe plaintiffs are entitled to an unconditional decree for possession, such ashas been made in their favour. On behalf of the appellants, who are subsequenttransferees from the original owner, it has been argued that a decree forpossession ought not to be made in favour of the plaintiffs till they havebrought into Court the amount of the consideration left unpaid. In support ofthis contention, reference has been made to the case of Brijnath Singh v. Paltu: 30 A. 125 : A.W.N. (1908) 38 : 5 A.L.J. 96. On behalf ofthe respondents, this position has been controverted on two grounds. It hasbeen contended in the first place that the appellants, as purchasers from, theoriginal owner, are not entitled to compel the plaintiffs to bring into Courtthe amount of consideration still unpaid; this view has been sought to besupported by a reference to the decision of Ram Lakhan Rai v. Bandan Rai: 2 A. 711. It has been contended in the second place thatalthough the vendor may have a statutory lien for the amount of thepurchase-money unpaid, he is not entitled to retain possession; and in supportof this view, reference has been made to the decision of Velayutha Chetty v.Govindasawmi Naicker : 30 M. 524 : 17 M.L.J. 450 : 3 M.L.T.10 which was affirmed on re-hearing [Velayutha Chetty v. Govindaswami Naiker: 8 Ind. Cas. 361 : 34 M. 343 : (1910) M.W.N. 607 : 9 M.L.T.108]. We are of opinion that the contentions of the respondents are not wellfounded on principle.

3. As regards the first objection, it need not be disputedthat the lien of the unpaid vendor is personal. But in the case before us ithas been found that the present appellants have paid to the original owner, ifnot the whole, at least a considerable portion of the consideration fixed forthe transfer to them; that transfer cannot, as we have held, take effect byreason of the fact that the title had completely vested in the plaintiffs underthe prior conveyance. Under these circumstances the Court may, upon theirapplication, compel the plaintiffs to bring into Court the amount ofpurchase-money not yet paid, to be credited in the first instance to the vendorand directions given thereafter for adjustment of the rights of the vendor andthe subsequent transferees.

4. As regards the second objection, we are of opinion thatthe provisions of section 55 of the Transfer of Property Act do not exclude theapplication of the principles of equity to the case before us. We entirelyagree in the observation of Mr. Justice Mahmud in Shib Lal v. Bhagwan Das 11 A.244 at p. 251 : A.W.N. (1889) 95, that in a case, such as this, as equity mayexist in favour of the defendants so as to subject the decree for possession torestrictions and conditions appropriate to the circumstances of each case. Thisview has been adopted by the Bombay High Court in Umedmal v. Davu: 2 B. 547, by the Allahabad High Court in Baijnath SinghPaltu : 30 A. 125 : A.W.N. (1908) 38 : 5 A.L.J. 96 and by theMadras High Court in Subramania Aiyar v. Poovan 27 M. 28. With all deference tothe learned Judges who decided the case of Velayutha Chetty v. Gobinda SawmiNaikar : 8 Ind. Cas. 361 : 34 M. 343 : (1910) M.W.N. 607 : 9M.L.T. 108], we are not able to adopt the view they took of the effect of thestatutory provisions on the subject. There is no reason why the right of thepurchaser to obtain possession under section 55(1)(f) of the Transfer ofProperty Act and the light of the vendor to realise the unpaid balance of thepurchase-money under section 55(4)(b) should not be recognised and enforced inone action. If we accepted the contention of the respondents the result will bethat the plaintiffs will obtain an unconditional decree for possession, thevendor will be driven to institute a suit to enforce the lien which hepossesses over the property for the unpaid purchase-money, and the subsequentpurchasers from the original owner will be driven to institute a suit againstTurn or his representatives for recovery of the amount they have paid asconsideration for the conveyance in their favour. It is obviously undesirablethat the matter in controversy, which may be settled without disadvantage toany of the parties, in a single litigation, should be repeatedly agitated in asuccession of suits. It is worthy of note that the payment of the purchasemoney and the execution of the conveyance are presumptively to becontemporaneous acts [Glazebrook v. Woodrow (1799) 8 T.R. 366 : 4 R.R. 700;Matiock v. Kinglake (1839) 10 A.& E. 5 : 2 P & D 348 : 8 D. J. Q. B.215 : 3 Jur 699 : 113 Eng. Rep. 19 50 R. R. 322 : if, however, the vendorexecutes a conveyance without receipt of the purchase-money, he has anequitable lien upon the land for the unpaid amount [Mackreth v. Summons 15 Ves.33 : 10 R.R. 85 : 33 Eng. Rep. 778 : 2 Wh. & T.L.C. 926] while, if thepurchaser has paid money before the conveyance, he has an equitable lien forthe advance [Rose v. Watson (1864) 10 H.L.C. 672 : 3 N.R. 673 : 33 L.J. Ch 385: 10 Jur. (N.S.) 287 : 10 L.T. 106, 12 W.R. 535 : 11 Eng. Rep. 1187 : 138 R.R.368]. The only question is, whether in a suit by the purchaser for possession,the vendor may be allowed equitable relief. Now, even if it be assumed thatunder the Common Law [Goode v. Burton (1847) 1 Ex. 189 : 74 R.R. 663 : 16 L.J.Ex. 309 : 11 Jur. 851] the vendor, who has executed a conveyance withoutreceiving payment of the whole price, has no lien authorising him to retainpossession of the title-deed, yet it is plain that in equity his lien on theland sold gives him the right to keep the title-deeds until payment. [Dryden v.Frost 8 My.& Ur. 670 : 8 L.J. Ch. 235 : 2 Jur. 1030 : 40 Eng. Rep. 1084 :54 R.R. 344]. Again, the lien for unpaid purchase-money does not entitle thevendor, after execution of the conveyance to the purchaser, to resumepossession of the land sold [Munns v. Isle of Wight Ry.Co. (1870) 5 Ch. App.414 : 39 L.J. Ch. 522 : 23 L.T. 96 : 18 W.R. 781; Williams v. Aylesbury and,Buckingham Ry (1873) 28 L.T. (N.S.) 547 : 21 W.R. 819, yet if on a saledirected by the Court for enforcement of the lien [Ecclesiastical Commissionersv. Pinney (1900) 2 Ch. 736 : 69 L.J. Ch. 844 : 83 L.T. 384; 49 W.R. 82 : 16T.L.R. 556] the property is found unsaleable at an adequate price, the Courtmay direct the vendor to be again let into possession. Allgood v. Merrabent andDarlington Ry. Co., (1886) 33 Ch. D. 571 : 55 L.J. Ch. 743 : 55 L.T. 835 : 35W.R. 180. We hold, accordingly, that there is no substance in the secondcontention.

5. The result is that this appeal is allowed, and the decreeof the Subordinate Judge set aside; in lieu thereof a conditional decree willbe made in favour of the plaintiffs on the following terms:--Namely, that theplaintiffs do deposit in this Court Rs. 500 together with the costs of thedefendants in all the Courts (to be specified in the decree) within one monthfrom the date on which the decree of this Court is actually signed. If theamount is so paid, a decree will be drawn up in favour of the plaintiffs forrecovery of possession. If the amount is not paid, the decree will direct thatthe suit do stand dismissed with costs in all the Courts. We desire to add thatwe make the plaintiffs liable for the costs of this litigation; it wasincumbent on them to come into Court with a true statement of the facts, and tooffer to bring into Court the amount of purchase-money still unpaid; not onlydid they not do so, they alleged falsely in the plaint that they had paid theentire consideration money.

6. If the amount is deposited as directed, the appellantswill be entitled to withdraw the same from Court.

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Nil Madhab Parhi vs.Haran Prosad Parhi (27.02.1913 - CALHC)