JUDGMENT : KARAMAT HUSAIN, J. In 1890, the plaintiff's maternal grand-mother, Mulu Kuer, without authority, sold certain property to Jiwan Sahai, the paternal grandfather of the plaintiffs, for Rs. 17,665. Jiwan Sahai, who was at the time the head and manager of a joint Hindu family, of which the plaintiff's, the defendant and another person with whom we are not concerned, were members, sold that and other property to Bhawani Kuer on the 9th of February, 1892. In the sale deed it was said:—“We or our representatives have no proprietary right left in the property sold. If (God forbid) any one should come forward as our co-sharer and should bring a suit or if the property sold be found incumbered in any way for any debt due by us, and the vendee should consequently, suffer loss, we, the vendors personally and our other property of every description, shall be liable and responsible to the extent of the amount of loss.” In addition to the sale deed, Jiwan Sahai on the same day executed an agreement in her favour in which he said :—“I do hereby hypothecate, charge and make liable for the aforesaid debt until the aforesaid minors attain majority and until the legal period for the claim which they may acquire after the death of Musammat Mulu Kuer, and Musammat Sarsuti Kuer, their mother.” In 1904, the plaintiffs, who had come of age, sued Musammat Bhawani Kuer, and this Court gave them a decree for the property as the property of their maternal grandfather, Nityanand, and ordered them in their capacity as members of the joint Hindu family which was benefited to the extent of Rs. 17,400, to pay that sum to Bhawani Kuer. The case is reported at p. 352, I.L.R., 30 All. Stanley, C.J., in his judgment in that case said :—“It may be that the plaintiffs, if they pay this amount, will be entitled to recover contribution from the other members of the family.” 2. After paying the sum of Rs. 17,400 to Bhawani Kuer, the plaintiffs, on the 12th March, 1909, instituted the suit out of which this appeal arose for contribution in respect of half the sum paid by them. 3. After paying the sum of Rs. 17,400 to Bhawani Kuer, the plaintiffs, on the 12th March, 1909, instituted the suit out of which this appeal arose for contribution in respect of half the sum paid by them. 3. The court below came to the conclusion that it was not proved that the purchase of the property in suit from Mula Kuer, was for the benefit of the family and dismissed the suit. 4. In appeal by the plaintiffs it is urged that Jiwan Sahai, as the head of the family, was entitled to execute the agreement, dated the 9th of February, 1892, that the sons and grandsons of Jiwan Sahai, cannot escape liability to contribute unless they show that the proceeds of the sale of the 9th of February, 1892, were applied to immoral purposes, and that the plaintiffs having paid the whole amount, were entitled to be reimbursed by the other members of the late Jiwan Sahai's family in proportion to their interests in the family property. 5. There is no doubt that Jiwan Sahai sold the property belonging to the plaintiffs to Bhawani Kuer, and received the sum of Rs. 17,400 for the benefit of the family. It was on that ground that in I.L.R., 30 All., 352, the plaintiffs were made to pay the entire sum of Rs. 17,400 to Bhawani Kuer. 6. The defendant, Inder Sahai, as a member of the family, is liable with the plaintiffs to refund the purchase money to Bhawani Kuer. The plaintiffs having paid the whole sum for the protection of their interests in the property as heirs of Nityanand, are entitled to contribution from the defendant. It is, however, contended by the learned counsel for the respondent, that by virtue of the express contract set forth in the sale deed of the 9th of February, 1892, and the agreement of that date only such property as was hypothecated is liable, and that other property, which was in possession of Jiwan Sahai, on the 9th of February, 1892, is not liable. 7. This contention in our opinion is unsound. Their Lordships of the Privy Council in Webb v. Macpherson,[1904] 31 Cal., 57, at p. 72., observe:— “The Transfer of Property Act gives a statutory charge upon the estate to an unpaid vendor unless it be excluded by contract. 7. This contention in our opinion is unsound. Their Lordships of the Privy Council in Webb v. Macpherson,[1904] 31 Cal., 57, at p. 72., observe:— “The Transfer of Property Act gives a statutory charge upon the estate to an unpaid vendor unless it be excluded by contract. Such a charge, therefore, stands in quite a different position from a vendor's lien. You have to find something either an express contract, or at least something from which it is a necessary implication that such a contract exists, in order to exclude the charge given by the statute. In their Lordships' opinion there is no ground whatever for saying that that charge is excluded by a mere personal contract to defer payment for a portion of the purchase money or to take the purchase money by instalments, nor is it in their Lordships' opinion excluded by any contract, covenant, or agreement with respect to the purchase money which is not inconsistent with the continuance of the charge.” 8. The above observations apply with equal force to the stipulations made in the sale deed and the agreement of February the 9th, 1892. There is no express contract to the effect that no property in the hands of Jiwan Sahai on that date except the property hypothecated in the agreement, will be liable for the repayment of the purchase money in case the consideration for the sale fails, nor is there any necessary implication that it will not be liable. The failure of consideration for the sale of the property to Bhawani Kuer by Jiwan Sahai, undoubtedly created a money liability which is as good as a debt and all the property which was in the hands of Jiwan Sahai and a portion of which has passed to the defendant, Inder Sahai, cannot escape its proportionate liability. 9. We, therefore, allow the appeal set aside the decree of the court below and decree the plaintiff's claim with costs and interest at the rate of Rs. 6 per cent, per annum from the 12th of March, 1909, up to the date of payment. The amount decreed will be recoverable from the defendant to the extent of the family property which came into his possession.