R.V. Lakshmayya Naidu alias Raju Naidu vs Purushothama Naidu and Others

Pandrang Row, J.—The main facts in these connected appeals are simple and undisputed. The plaint properties in both the suits are one and

the same. They were sold by one Lakshmi Ammal, the plaintiff in O.S. No. 114 of 1934, on 31st March, 1922, to one Purushotham Naidu, the

first defendant in that suit. These will be referred to as the vendor and the vendee respectively. The vendor had succeeded to the properties on the

death of her infant son and immediately thereafter the creditors of her husband filed several suits and obtained decrees. It was mainly to pay off

these decree debts that the sale was effected for Rs. 11,000. The sale-deed clearly recites that the properties were sold for Rs. 11,000, out of

which Rs. 1,041 were received in cash and the balance was left with the vendee for payment to the decree-holders. The vendee paid off the

decree debts except one, namely, the debt due to the decree-holder in O.S. No. 166 of 1921. That decree-holder brought the properties to sale

after the private sale in favour of the vendee and the properties were purchased in Court auction by one Ponni Naidu who subsequently transferred

the same to one Gopala Naidu. They were ultimately brought to sale in execution of a decree obtained against Gopal Naidu and purchased by

Lakshmiah Naidu, the plaintiff, in O.S. No. 93 of 1929. This suit was one in which there were three alternative reliefs prayed for, namely, (1)

recovery of possession of the plaint properties, (2) refund of the money deposited as purchase money by the plaintiff, and (3)to enforce the

vendor''s lien or charge in respect of the unpaid purchase money due under the sale-deed of 31st March, 1922. That suit was dismissed by the

Court below mainly on the ground that there was no right of suit in a case of this kind, the learned Judge having relied upon the decision in

Muthukumaraswami Pillai v. Muthuswami Thevan ILR (1926) Mad. 639 and having declined to follow the Full Bench decision in Bahadur Singh v.

Ramphal I.L.R.(1929) Luck. 552. Since then, however, the question has come up before a Full Bench of this High Court in Macha Koundan v.

Kottora Koundan ILR (1935) Mad. 202 which lays down the law more or less in the same terms as Bahadur Singh v. Ramphal ILR (1929) Luck.

552 and Mehr Chand v. Milkhi Ram ILR (1932) Lah. 618 another Full Bench case. Appeal No. 152 of 1932 is by the plaintiff in O.S. No. 93 of

1929. In the other suit by the vendor against the vendee to enforce the lien a decree was passed in favour of the plaintiff, the plaintiff in the other

suit being also a party to that suit. The first defendant-vendee is the appellant in the other appeal. From the facts stated above, it is very clear that

this is not a case in which the judgment-debtor, that is, the vendor, had no saleable interest in the property that was sold in execution of the decree

in O.S. No. 166 of 1921, if it is found that there was a vendor''s lien or charge subsisting at the time of the Court sale. The question whether the

vendor had such a charge is raised in the other appeal by the vendee. This question can be answered very shortly because a perusal of the sale-

deed shows that there was no contract to the contrary negativing the charge given by the statute. The sale-deed clearly says that the sale was of

land for a price, namely, Rs. 11,000. No doubt, the bulk of the price was retained with the vendee for being paid to certain creditors mentioned

therein at the request of the vendor. In these circumstances it cannot be said that the statutory charge was given up. There is absolutely no

substance in the contention that there was a waiver of this charge. There is nothing to show that the charge was at any time waived. The mere fact

that the vendor asked the vendee sometime after the sale-deed was executed not to pay the amount due to one of the creditors does not mean that

the vendor intended to give up or waive the right given by the statute in the shape of a charge on the property for unpaid purchase money. There is

thus no doubt that there was at the tithe of the Court sale in execution of the decree in O.S. No. 166 of 1921 the statutory charge in favour of the

vendor, a charge which was available against the plaint properties. It cannot therefore be said that the judgment-debtor had no saleable interest in

the properties that were sold. The charge is art interest in property and it is saleable. What passes at a Court sale is the right, title and interest of

the judgment-debtor, whatever that might be, and in this particular case what passed at the sale was a charge on the property which the judgment-

debtor had even after the sale by her to the vendee in March, 1922. This charge must be deemed to have passed by subsequent transactions to the

plaintiff in the other suit O.S. No. 93 of 1929. It is therefore clear that this plaintiff, that is to say, the appellant in Appeal No. 152 of 1932, is

entitled to enforce the charge as against the vendee, the first defendant. On the other hand, it is clear that as the charge had passed from the vendor

to the appellant in Appeal No. 152 of 1932, the vendor could not enforce that charge as against the first defendant. In other words, the proper

course for the Court below to have adopted in these circumstances was to have passed a decree in favour of Lakshmiah Naidu for the unpaid

purchase money with interest and costs and dismissed the suit of the vendor herself to enforce the same charge. As regards interest we see no

reason why interest should not be allowed at 6 per cent. Some interest has to be allowed according to law because the provision of law which

gives the charge gave a right to recover interest as well. It follows therefore that both these appeals must be allowed, and the decrees of the lower

Courts in both the suits set aside. O.S. No. 114 of 1934 will be dismissed, the parties bearing their own costs throughout. In the other suit, 93 of

1929, there will be a decree in favour of the plaintiff for Rs. 7,879-5-4 with interest on the principal amount of Rs. 4,585 at six per cent, per

annum from. 22nd March, 1934, till date of payment against the first defendant, Purushotham Naidu, the suit being dismissed but without costs as

against the other defendants. Time for"" payment six months from this date. The appellant in Appeal No. 152 of 1932 is entitled to get His

proportionate costs of the appeal from the first defendant. The respondents will bear their own costs in this appeal.