JUDGMENT
1. The suit which has given rise to this appeal was one for recovery of the purchase money together with interest by enforcement of the vendor's lien.
2. On the 5th of August, 1920, the plaintiff sold to the defendant-appellant 11.14 acres of land of Mauza Uderni. The sale was ostensibly for Rs. 3,300 but the real consideration was R3. 3,000. The entire land sold consisted of sir and khudkasht and was in the immediate possession of the vendors. As the result of this sale, the vendors became the ex-proprietary tenants of the land and as such became entitled to hold the land on payment of a privileged rate of rent. The defendant vendee, however, got a kabuliyat executed by the vendors, under which the latter agreed to pay Rs. 172 as the rent of this holding an amount which was far in excess of the statutory rent.
3. On the date of the sale, the property was subject to two encumbrances. The vendors had left Rs. 620 with the vendee out of the purchase money for payment to Beni and Bhullan who held a mortgage dated the 5th of January, 1914. A further sum of Rs. 800 was left for payment to one Sobha Ram on his mortgage dated the 16th May, 1916. The latter mortgage included not only the property sold but some other property belonging to the vendors, the details of which are not known and are not necessary for the purpose of this appeal.
4. The defendant did not pay to Beni, Bhullan and Sobha Ram. Beni and Bhullan sued the plaintiffs on the mortgage dated the 5th of January, 1914, and obtained a decree on the 28th of August, 1925. The plaintiff states that Sobha Ram was ready to institute a suit for his money. Hence this suit by the plaintiffs for recovery of Rs. 1,420 together with interest.
5. The defendant did not contest the fact that Rs. 1,420 were left with him out of the purchase money to Beni, Bhullan and Sobha Ram and that the same had not been paid.
6. The defendant had applied to the Revenue Court that the rent on the ex-proprietary holding should be assessed at Rs. 172 which had been agreed upon between the parties. The plaintiffs had opposed this application. The Revenue Court by its judgment dated the 27th March, 1924, held that the plaintiffs as ex-proprietary tenants were not liable at the rate of Rs. 172 per annum and that the rent payable by them was Rs. 104.
7. The defendant opposes the present suit on the ground that he had agreed to purchase for Rs. 3,000 on the understanding that the plaintiffs were to pay him Rs. 172 as rent, that the plaintiffs having resiled from this contract, the defendant was not bound to pay the full amount of purchase money as had been originally settled between the parties and that the defendant could not under the circumstances be held liable to the plaintiffs for the sums not paid to Beni, Bhullan and Sobha Ram.
8. This contention was repelled by the Court of first instance, which gave the plaintiffs a decree for the amount claimed together with interest. The lower Appellate Court confirmed the decree.
9. We do not see any flaw in the decrees of the Courts below. The defendant purchased the property in dispute unconditionally for Rs. 3,000. There was no agreement between the parties that in the event of the plaintiffs resiling from their agreement to pay rent as the rate of Rs. 172 annually and the rent being reduced, there was to be a proportionate reduction of the amount of the purchase money. Portions of the purchase money were left with the vendee for payment to Beni, Bhullan and Sobha Ram. The defendant had agreed to pay these sums to the parties concerned. He had not paid them. He was clearly liable to the plaintiffs for those amounts. In one case, the mortgagees had actually sued the mortgagors and obtained a decree. In the other case, the mortgagee had threatened to sue. The other property of the plaintiffs could not be released from the mortgage of Sobha Ram till the defendant had paid the money due on his mortgage. The defendant was, therefore, bound by his contract. This contract was not affected by the falling through of the agreement to pay Rs. 172 a year as rent of the ex-proprietary holding. The kabuliyat was executed to get round the provision of Section 10 of Act II of 1901 (local) and was in effect a contrivance to compel the ex proprietary tenants to give up their holding, under pressure of rent which was hard and excessive. Such a device was properly frustrated by the Revenue Court. It was observed by the Privy Council in Moti Chand v. Ikramullah Khan 39 Ind. Cas. 454 : 39 A. 173 : 15 A.L.J. 150 5 L.W. 388 : 21 M.L.T. 267 : 32 M.L.J. 383 : 21 C.W.N. 616 : 19 Bom L.R. 433 : 26 C.L.J. 24 : (1017) M.W.N. 453 : 44 I.A. 54 (P.C.): "The policy of the Act is not to be defeated by any ingenious devices, arrangements or agreements between a vendor and a vendee for the relinquishment by the vendor of his sir lands or...for a reduction of purchase money on the vendor's failing or refusing to relinquish such lands. All such devices, arrangements and agreements are in contravention of the policy of the Act, and are contrary to law and are illegal and void."
10. We have noticed already that there was no contract between the parties for a proportionate reduction of the purchase money if the rent agreed upon in the kabuliyat was reduced. Even if such a contract existed, it would have been illegal and could not be enforced.
11. We are, therefore, of opinion that the plaintiffs were entitled to enforce their lien for the unpaid purchase money and that the claim has been properly decreed.
12. Appeal is dismissed with costs.