JUDGMENT John Stanley, C.J. and Banerji, J.
1. This is a second appeal against a decree of the lower appellate Court dismissing the plaintiff's suit for recovery of possession of a 4-pie share in a village. This share was conveyed to the plaintiff by a sale deed of the 6th of May 1898, which was duly registered. Possession was not obtained, and the present suit was therefore brought. In his plaint the plaintiff alleged that the full consideration for the sale, namely, Rs. 200 had been satisfied. In their defence the defendants alleged that the consideration had not been paid, and it is found by both the lower Courts that this was so. In consequence of the finding that no portion of the consideration had been paid, the learned District Judge held that there was in fact no sale of the property. He observes in the course of his judgment: "Thus not any portion of the consideration has been paid. Non-payment of the 'promised' portion would not invalidate the 'sale,' and the lower Court has recognised this principle. But when the consideration is supposed to be 'part paid and part promised' and not even the 'part paid' amount has actually been paid, the provisions of Section 54 (of the Transfer of Property Act) have not been fulfilled and the transaction cannot be called a sale at all." We are unable to agree with the learned District Judge as to this. According to the sale deed the consideration was agreed to be paid as follows: Rs. 100 to be credited in part payment of past debts, Rs. 20 to be paid in cash, and Rs, 80 the balance to be paid to a mortgagee of the property. Now we must take it on the findings that no portion of the purchase money has been paid or satisfied. The vendee did not fulfil his obligation to pay it. It has been held, and we think rightly, that the non-payment of the purchase money does not prevent the passing of the ownership of purchased property from the vendor to the purchaser, and that the purchaser, notwithstanding such non-payment, can maintain a suit for possession of the property--see Shib Lal v. Bhagwan Das (1888) I.L.R. 11 All. 244. It was so held in the case of Umedmal Motiram v. Davu bin Dhondiba (1878) I.L.R. 2 Bom. 547 and again in the case of Sagaji v. Namdev (1899) I.L.R. 23 Bom. 525, in which the evidence showed that there was a bond fide sale of property by the defendant to the plaintiffs, and it was held that this sale was a completed transaction, notwithstanding the fact that no portion of the consideration had been paid, and that the only remedy of the vendor for the consideration was a suit for recovery of the amount of it. We think therefore that the Courts below were wrong in dismissing the plaintiff's claim. In the case of Shib Lal v. Bhagwan Das, to which we have referred, it was laid down by Mahmood, J., rightly, we think, that equities may exist in favour of a defendant to a suit like the present one so as to subject the decree to restrictions and conditions appropriate to the circumstances of the case. Here there is such an equity arising out of the non-payment of the purchase money by the plaintiff, and regard ought to be paid to it in any decision which the Court may pass.
2. Accordingly we allow the appeal. We set aside the decrees of both the lower Courts, and we order and direct that if within six months from this date, the plaintiff pay to the defendants the sum of Rs. 200, the amount of the purchase money, the property mentioned in the plaint be delivered to him, but in default of such payment the plaintiff shall forfeit his right to recover the property. If the plaintiff do not pay the purchase money within the time aforesaid, his suit will stand dismissed with costs in all Courts. If he, however, do pay the purchase money within such period, then in view of the fact that the plaintiff alleged in his plaint that he had paid the entire of the purchase money, contrary to the fact, we think that both parties should abide their own costs in the Courts below and we order accordingly. As to the costs of this appeal, the plaintiff, we think, if he pay the purchase money, is entitled to them, and we so order.