Subrahmania Ayyar vs Poovan and Others

Upon the finding that there was no family necessity, the sale cannot affect the shares of the brothers who have not joined in the execution of the

sale-deed.

The Appellant also contends that he is entitled to an absolute decree in respect of the shares of the executants and not to a decree conditional

upon his paying the purchase money to the vendors. The finding is that the price for the sale was not paid by the vendee to the vendors, and the

Plaintiff by the suit admits that the vendors continue in possession of the property sold, though the sale had taken place more than seven years

before the suit.

We cannot accede to this argument inasmuch as the vendors have a charge by operation of law upon the property sold for the purchase money.

And as the vendee not only did not pay the purchase money, but also did not take steps until this suit to recover possession from the vendors, the

latter were not bound to sue to enforce their lien for the purchase money, the period of limitation for a suit for the same being under Article 111 of

the Limitation Act only three years from the date of sale.

Notwithstanding that a suit by the vendors for the enforcement of their lien would have been barred by limitation at the date of this suit, Section

28 of the Limitation Act would not extinguish the lien. The lien not having been extinguished and the vendors being still in possession, they have a

right to retain possession until the purchase money is paid and the lien extinguished by such payment. This we find is also the view taken in

Umedmal Motiram v. Davu Bin Dhondiba ILR 2 Bom. 547, and we entirely concur in that decision.

The second appeal fails and is dismissed with costs.