Judgment :- 1. The respondent and her son sold a property to the appellant for Rs. 550/-on the 1st September, 1953, and the appellant and another hypothecated the property to secure payment of the sale consideration. In due course, the respondent put the hypothecation in suit and obtained a decree. In execution, the appellant sought to discharge the debt under the provisions of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958, when the respondent contended, that the liability is not a debt as defined in the Act, being a "liability for which a charge is provided under sub-clause (b) of clause (4) of 8.55 of the Transfer of Property Act, 1882", and therefore excluded from the definition, by S.2 (c) (vii). The sale deed was executed after the Transfer of Property Act had come into force in the concerned area, and therefore the respondent was entitled to a charge under S.55 (4) (b) of the Transfer of Property Act for unpaid consideration, if any, in the absence of a contract to the contrary. The District Judge, differing from the Munsiff, has held that there was no contract to the contrary and so the respondent was entitled to a charge. The question in second appeal, is whether this view of the District Judge is right or not. 2. The first contention of learned counsel for the appellant that the consideration for the sale was the hypothecation and so no part of it remained unpaid is, in my opinion, bound to fail. The consideration recited in the sale deed was a sum of Rs. 550/-and by the hypothecation, its payment was secured and was to be made on demand. The distinction was stated thus by the Privy Council in Webb v. Macpherson I. L. R.31 Calcutta 57 at page 73: "There is no doubt, both on principle and authority, that a conveyance or sale in consideration of a covenant to pay a sum of money in the future is different from a sale in consideration of money which the purchaser covenants to pay. The distinction may seem fine, but it is a real distinction,..." Their Lordships held that the conveyance was made in consideration of a sum of money, of which a part was paid and the rest was secured by an instrument of even date and was not made in consideration of the covenant in the instrument. The distinction may seem fine, but it is a real distinction,..." Their Lordships held that the conveyance was made in consideration of a sum of money, of which a part was paid and the rest was secured by an instrument of even date and was not made in consideration of the covenant in the instrument. Similarly in K. G. Lekshmana Iyer v. Ramaswami Naicker AIR. 1941 Madras 119 a division bench of the Madras High Court held that the sale was for a price and that "the mortgage provided the way in which that price was to be paid and secured". I have no doubt in my mind that the respondent sold her property not for taking the hypothecation or in consideration thereof, but for a price which the appellant agreed to pay, and the payment of which was secured by the hypothecation. 3. I am, however, of the opinion, that the appellant has to succeed on the second contention, that a hypothecation having been taken from him securing the very property sold, the charge Under S.55 [4] [b] of the Transfer of Property Act is excluded by a contract to the contrary. There is a distinction between an equitable lien as in England, and as was recognised before the Transfer of Property Act became law, and the statutory charge under S.55 [4] (b) of that Act for unpaid purchase-money, because the former being a creature of equity is amenable to equitable considerations and the latter is governed by the terms of the Act to which it owes its origin. Distinguishing an equitable lien, the Privy Council propounded the following test in Webb v. Macpherson ILR. 31 Calcutta 57 to determine, when a statutory charge under S.55 (4) (b) is excluded by a contract to the contrary: "You have to find something, either 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. 31 Calcutta 57 to determine, when a statutory charge under S.55 (4) (b) is excluded by a contract to the contrary: "You have to find something, either 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 of 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." Applying this, the Privy Council held in the case cited, that a personal and formal undertaking by the vendee to pay the balance of the sale consideration was in no way inconsistent with the existence of a charge. But the question to determine in this case is whether a hypothecation of the very property sold is not inconsistent; I am of the view that it is. A hypothecation is a higher or superior form of security than a charge which is not enforceable against a transferee of the property without notice. Depending on the circumstances, the presumption is against the vendor being afforded a double security, particularly on the same property, and when two securities are available, the higher or superior security is inconsistent with the existence of the lower or inferior security. The law with respect to legal liens is stated thus in Halsbury's Laws of England, 3rd Edition, Vol. 24, page 170, Art.319: "The mere taking of a security does not necessarily destroy the lien; there must be something in the facts of the case or in the nature of the security taken which is inconsistent with and destructive of the lien, as, for instance, a security taken on property already subject to [he lien...." In Muhaitheen Beevi v. Krishna Iyer Ananthanarayana Iyer 1943 TLR.144 Nokes, J., had occasion to consider this question though in the context of a vendor's lien. I cannot help quoting the following observations of the learned judge: "On a question of fact, I should come to exactly the opposite conclusion, as there appears to be no point in retaining an inferior security when a superior security is available, and the two securities may be regarded as inconsistent with each other, rather than cumulative in effect. And the fact that the bond covers exactly the same property as the charge, is a further indication of inconsistency with the latter. The effect on this point of the decision of the Privy Council in Webb v. Macpherson appears to have been sometimes misunderstood. Their Lordships held that there was no ground for saying that the charge was excluded by a personal contract to defer payment, or any contract, covenant or agreement with respect to the purchase-money which was not inconsistent with the charge; presumably because a personal security was inferior to the security of a charge; and they made no mention of such a security on immovable property as a hypothecation bond of land." 4. The preponderance of judicial opinion is in favour of the view, that where a superior security is taken, the statutory charge does not exist. Narayani Amma Gouri Amma v. Pyli Mathai, 57 TLR. 753, Mulchand v. Bianu, AIR. 1919 Nagpur 109, Krishnaswami Iyengar v. Subramania Ganapatigal,1918 Law Weekly Vol. 7, p. 210, R. M. A. R. S. Chettyar Firm v. Daw Ngwe Bwint AIR. 1934 Rangoon 190 and P. Johnston v. Official Liquidator, High Court, Rangoon AIR. 1939 Rangoon 46 are some of the cases in support of this view. A contrary view was held by a division bench of the Madras High Court in E. G. Lakshmana Iyer v. Ramaswami Naicker AIR. 1941 Madras 119. For the reasons stated above, speaking with respect, I do not agree, that the taking of a simple mortgage in respect of the property sold and of another property to secure payment of the sale consideration is not inconsistent with the existence of the statutory charge. 5. The result is, that the view of the District Judge cannot be supported. His order is set aside, and the order of the Munsiff is restored. This Second Appeal is allowed with costs in this court. The respondent prayed for leave to appeal; leave granted. Allowed.