Law:

Section:

(a) Transfer of Property Act (IV of 1882), S. 55 (4) (b) -Part of sale price left with vendee to be paid to a previous mortgagee, remaining unpaid--Amount unpaid as Part of consi­deration of sale and is a charge on property sold. Rs. 2,676 were left by the vendor with the vendee to be paid over to a previous mortgagee Amount due to the mort­gagee was found to be Rs. 1,484, and only that much was paid to the mortgagee. Held the balance Rs. 1,192 was a part of the consideration for sale and was a charge on the property sold to vendee. Abdulla Beary v. Mammali Beary I L R 33 Mad. 446 ref. (b) Declaration of title---Suit for-Court may make it a condition of decree that defendant has a charge on property the subject of declaration. The vendor of a piece of land left Rs. 2,676 out of the sale price with the vendee to be paid over to a previous mort­gagee. It was found that only Rs. 1,484 were due to the mortgagee which were accordingly paid. Thereupon the vendor asserted a claim upon the land for the balance of Rs. 1,192. The heirs of the vendee lodged a suit for declara­tion of title in reply to which the vendor defendant raised the plea that the plaintiffs were bound to pay him Rs. 1,192. The trial Court granted the declaration that the plaintiffs are owners of the land provided they pay Rs. 1,192 to the defen­dant. Only one plaintiffs appealed. The District Judge dismissed plaintiff's appeal. On second appeal it was con­tended for appellant that a declaration of title cannot be accompanied by any declaration in favour of the defendants. Held the plaintiffs are owners of the land- in suit but they hold the land subject to a charge in favour of the defendant No. 1 for Rs. 1,192. The relief for declaration is an equitable relief and the Court granting it was to give effect to all the equities arising in favour of the parties before it. Khalil-ud-Din v. Sri Ram A I R 1934 All. 176 and Mst. Komal v. Gur Charan Prasad A I R 1938 All. 242 rel. Phool Chand v. Mst. Mantia A I R 1938 All. 182 and Manak Chand v. Madan Lal A I R 1936 Lah. 943 distinguished. JUDGMENT AKHLAQUE HUSAIN, J.---The facts of this case, as found by the lower appellate Court, are these : Muhammad…

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