JUDGMENT
1. On June 9th, 1908, the plaintiffs sold half a village to the defendant, Badri Das, for Rs. 6,900, of which Rs. 1,400 were paid in cash to the plaintiffs and the balance Rs. 5,500 was left in the hands of the. defendant on account of the amount due on a prior mortgage of the whole village held by one Kanhya Lal. On the 18th of June 1908, the defendant deposited Rs. 5,500 in Court under Section 83 of the Transfer of Properly Act. By this time, Kanhya Lal had died leaving an infant heir. The child’s guardian refused to accept the money saying that a larger sum was due on the mortgage and the plaintiffs put in an application stating that the whole of the sum deposited was not due to the mortgagee, but that accounts should be taken and the amount found due paid to the mortgagee and the balance paid to the plaintiffs. The Courts below have found that there was no agreement between the plain-tiffs and the defendant that they would go to the mortgagee and settle accounts with him and the defendant would re-pay the balance, if any, remaining in his hands to the plaintiffs. Kanhya Lal’s heir sued upon the mortgage impleading both the present plaintiffs and the defendant. The latter did not defend the suit. The present plaintiffs and the mortgagee entered into a compromise according to which Rs. 5,556 were agreed to be due on account of the mortgage-money and a further sum on account of costs and in default of payment, the amount was to be recovered in the first instance by sale of that half of the village which had been sold to the defendant. A decree was prepared accordingly and in execution of that decree, the defendant’s half share in the village was sold for Rs. 3,000. The plaintiffs applied to have the sale sat aside, bat they subsequently abandoned the application and they brought the present suit in July 1910 for the recovery of Rs. 2,500 being, as they alleged, the balance of the amount still due from the defendant, the amount of costs incurred by them in the previous suit and the amount of revenue paid by them for the defendant’s half share of the village and interest making a total of Rs. 3,849 odd. The Court of first instance decreed the claim and the lower Appellate Court confirmed that decree with a slight modification.
2. In second appeal, it is contended on behalf of the defendant, that under the sale-deed in his favour, he was not bound to find more than Rs. 5,500 for the redemption of Kanhya Lal’s mortgage, that he had done all that was required of him when he deposited this sum in Court under Section 83 of the Transfer of Property Act and that he was not bound to discharge the decree obtained by Kanhya Lal’s heir as the amount due under the decree exceeded Rs. 5,500, that under the sale-deed in favour of the defendant, it was the duty of plaintiffs vendors to give a clear title to the 8 annas share which they sold to the defendant and all that they could do was to call upon the defendant to contribute the sum of Rs. 5,500 towards the redemption of Kanhya Lal’s mortgage. The defendant has relied up on a decision of the Privy Council in Muhammad Siddiq Khan v. Muhammad Nasir- Ullah Khan 21 A. 223 : 26 I.A. 45 : 3 C.W.N. 20l which, he says, exactly covers this case. The plaintiffs-respondents, on the other hand, contend that under the sale-deed the defendant was bound to redeem the mortgage held by Kanhya Lal even if he had to pay a sum exceeding Rs. 5,500 in order to do so and they rely upon the second Clause in the sale-deed which is to the effect that if any further charge were found to exist on the property and the defendant had to pay more than Rs. 5,500, he would be entitled to recover the balance from the vendors, and the plaintiffs contend that this case is distinguishable from the case decided by the Privy Council. It seems to us impossible to hold that the second condition in the sale-deed made it incumbent on the purchaser to redeem Kanhya Lal’s mortgage even if. he had to pay more than the sum left-in his hands by the vendors for the purpose. The clause in question gives him only the right which he would have had if this clause had not been inserted in the deed. As a purcher of the property, said to be free of all incumbrances except one for Rs. 5,500, he would have been entitled, if he paid a larger sum in order to clear the title, to claim the balance from his vendors. We have referred to the printed record of the case decided by the Privy Council and we are unable to distinguish that case from the present one. Pandit Sundar Lal endeavoured to distinguish the two cases on the ground that in that case, both this Court and the Privy Council held that it was part of the contract between the parties that the vendors should pay off the mortgages and he relied on the fact that oral evidence of such an arrangement was given at the trial. On referring to the record, we find that this Court held that the vendors had agreed to discharge the mortgages, not on the strength of the oral evidence, the admissibility of which seemed doubtful, but on the terms of the sale-deed itself. The Privy Council, in their judgment, confirmed the finding of this Court. Whether the Privy Council proceeded upon the oral evidence or not, we think that this case is not distinguishable from that case. There, as here, a sum of money was left in the hands of the purchaser for the purpose of redeeming the prior mortgage. It turned out that the amount due was far in excess of the amount left in the hands of the purchasers. There, as here, it was the duty of the vendors to give a clear title to the purchaser subject only to the payment by the purchaser of the sum left in his hands. In the present case, the difference between the amount left in the defendant’s hands and the amount found due on the mortgage is small but the decision should be the same whether the difference is great or small. Pandit Sundar Lal declined to argue that the defendant in this case would have been bound to find a sum of say Rs, 10,000 for the redemption of Kanhya Lal’s mortgage. The plaintiffs, after a decree had been passed on Kanhya Lal’s mortgage, should have paid into Court the difference between the amount due and the amount left in the hands of the defendant and then have called on the defendant to pay the sum which was in his hands. They did nothing of the kind. It was their duty to give the defendant a clear title and it was their fault that the defendant’s property was sold. In our opinion, the suit should have been dismissed. We allow the appeal, set aside the decrees of the Courts below and dismiss the suit with costs.
