Judgment :- 1. The second appeal has been placed before a Division Bench by Velu Pillai, J., as our learned brother thought that the Division Bench ruling in Kochukunju Kunjukunju v. Sankaran Ambujakshan (1962 KLT. 254) did not consider provisos 1 and 2 of S.6 of the Part B States (Laws) Act, 1951 (Central Act III of 1951) and therefore the decision might require reconsideration. The said ruling has laid down that for a debt to come under the category excluded under S.2 (c) (vii) of Kerala Act XXXI of 1958, the liability must be one for which a charge is provided under S.55 (4) (b) of the Transfer of Property Act of 1882. The result is that the vendor's lien that obtained in Travancore till 1st April 1951, the vendor's lien that obtained in Cochin till 1st Chingam 1112 and the statutory charge under S.56 (4) (b) of the Cochin Transfer of Property Act of 1111 from 1st Chingam 1112 to 1st April 1951 are excluded from the operation of S.2 (c)(vii) of Act XXXI of 1958, for the reason that the Transfer of Property Act of 1882 was applied to the Travancore-Cochin State only from 1st April 1951. In coming to this conclusion, the Division Bench has failed to consider provisos 1 and 2 of S.6 of the Part B State (Laws) Act of 1951; which, if considered, in our opinion, would have materially affected the decision. We therefore agree with Velu Pillai, J. that the Division Bench ruling requires reconsideration; and in that view, we will have referred the case before us to a Full Bench. But, from the facts of the case we are of opinion that the Division Bench ruling need not be applied to this case. Therefore, we proceed to decide the second appeal, leaving the reconsideration of the Division Bench ruling to an appropriate future occasion. 2. The first appellant is the wife of the second appellant; and they were plaintiffs 1 and 2 before the trial court. The deceased first respondent, who was the first defendant, purchased a property in 1951 for Rs. 5,950/- from the second plaintiff. Several liabilities of the vendor were directed to be discharged by the vendee; and a sum of Rs. 1000/- was directed to be paid to the first plaintiff one year after the document with interest. A sum of Rs. The deceased first respondent, who was the first defendant, purchased a property in 1951 for Rs. 5,950/- from the second plaintiff. Several liabilities of the vendor were directed to be discharged by the vendee; and a sum of Rs. 1000/- was directed to be paid to the first plaintiff one year after the document with interest. A sum of Rs. 260/- alone was received in cash by the second plaintiff. For the Rs. 1000/-reserved to be paid to the first plaintiff, a charge was also created in her favour. The plaintiffs brought the suit, which has given rise to the second appeal, for recovery of the said sum by the first plaintiff; and the second plaintiff was made a formal party to the suit. The first defendant claimed that he was an agriculturist and was entitled to relief under Act XXXI of 1958. The trial court held that he was not an agriculturist and that the debt came within the exemption of S.2 (c) (vii) of the Act. The lower appellate court reversed both these findings; and the question in; second appeal is whether this reversal is correct. 3. On the first question, whether the first defendant is an agriculturist or not, the matter is simple. The trial court held that the land purchased by the first defendant under Ex. D-5 was not agricultural or horticultural land but only house-property. The lower appellate court reversed this, and rightly did so, because the trial court was in error when it thought that the property was house-property. There was no house in the land purchased; and there is evidence that there were fruit bearing trees thereon. It is therefore evident that the land is at least horticultural land and that the first defendant is an agriculturist. 4. The more substantial question is whether S.2 (c) (vii) applies to the case. It is pointed out by the learned counsel of the appellants that it is the category of the debt at its inception that matters. He argues that in this case the category at the inception of the debt was balance of purchase money and therefore S.2 (c) (vii) applies. There cannot be any dispute regarding the proposition that it is the category of the debt that matters. In fact, there are decisions of this Court and a decision of the Madras High Court on the point. There cannot be any dispute regarding the proposition that it is the category of the debt that matters. In fact, there are decisions of this Court and a decision of the Madras High Court on the point. Amarnatha Menon v. Malathi Amma (1960 KLT.10) is one Division Bench ruling of this Court; and the decision of the Madras High Court is M. Varadaraja Perumal v. Palanimuthu Goundan (A.I.R.1941 Mad. 118). But, the question is whether the sum of Rs. 1000/- left with the first defendant to be paid to the first plaintiff was really balance of purchase money. A charge was created in favour of the first plaintiff; so that, she could have herself filed the suit and obtained the money without impleading the second plaintiffs a party. One of the recognised exceptions to the rule that a third party to a contract cannot sue on it is that if a charge is created in favour of the third party, the third party, though not a party to the contract, can enforce the contract. In this case, it is evident that since the charge was created in favour of the first plaintiff, she could have brought the suit and obtained a decree. In such a case, the amount 5. But the advocate of the appellants contends that the nature of the liability at its inception is the criterion; and he relies in support of this plea on the Madras decision in M. Varadaraja Perumal v. Palanimuthu Goundan (AIR. 1941 Mad. 118) already referred to. In that case the judgment-debtor purchased lands under a sale deed, whereby the purchase price was to be paid by the discharge of two debts and the execution of a promissory note for the balance. The promissory note was twice renewed; and the last note was assigned to the plaintiff by endorsement. The plaintiff thereafter obtained a decree on the promissory note; and the judgment-debtor applied for scaling down the decree. The Division Bench of the Madras High Court hold that the category of the debt at its inception was balance of purchase money and therefore the exemption clause applied. The promissory note was in favour of the vendor; and it was for a part of the purchase money. The Division Bench of the Madras High Court hold that the category of the debt at its inception was balance of purchase money and therefore the exemption clause applied. The promissory note was in favour of the vendor; and it was for a part of the purchase money. In such a case, even if the debt was later assigned to a third party, the debt did not lose its original character; and the exemption clause obviously applied. 6. In the case before us the position is different: the charge was created in favour of the first plaintiff, a third party to the contract. In such a case the principle that applies is laid down by another Division Bench ruling of the Madras High Court in Swaminatha Odayar v. Subbarama Aiyar (AIR. 1927 Mad. 219). The Division Bench held that if by agreement between the vendor and the vendee, the vendee put himself under an enforceable liability to a third party by executing, for example, a promissory note in favour of such third party for the whole or part of the purchase money, then in respect of such whole or part, there was a "contract to the contrary" coming within the meaning of S.55 of the Transfer of Property Act and the vendor's statutory charge on the property was to that extent defeated. In the case before us, again, the creation of a charge in favour of the third party was "a contract to the contrary" to the continuance of the statutory charge in favour of the vendor himself. It is therefore clear that the amount left to be paid to the first plaintiff did no more retain the character of unpaid purchase money. 7. The learned advocate of the respondents urges, in addition, another aspect. He draws our attention to the observation of the Privy Council in Webb v. Macpherson (I.L.R. 31 Cal. 57), wherein their Lordships observe that there is a difference between a conveyance or sale in consideration of a covenant to pay a sum of money in the future and a conveyance or sale in consideration of money which the purchaser covenants to pay. In the former case, namely, where the sale is in consideration of a covenant to pay in the future, the consideration is complete and the covenant to pay will not have the backing of the statutory charge under S.55(4). In the former case, namely, where the sale is in consideration of a covenant to pay in the future, the consideration is complete and the covenant to pay will not have the backing of the statutory charge under S.55(4). In the latter case, where the consideration is a sum of money which the purchaser covenants to pay and the payment itself is put off, there the statutory charge will be available for the amount, as the amount is balance of purchase money. It is doubtful whether this distinction will help the respondents in the present case; because, the entire consideration was fixed at Rs. 5,950/-, several debts of the vendor were directed to be discharged, a sum of Rs. 1000/- was reserved to be paid to the first plaintiff and the balance of Rs. 260/- was received in cash. In such a case, we are inclined to think, the consideration is not a covenant to pay in the future, but it is the sum of money agreed to be paid. 8. Yet another decision brought to our notice is the decision of the Madras High Court in Avvari Subba Row v. Kondamudi Varadaiah (AIR. 1943 Mad. 482). A Division Bench held therein that when a property was sold free of mortgage and a portion of the price was left with the buyer to pay off the mortgage, then, so far as the mortgagee was concerned, the mortgagor and the purchaser of the property were both entitled, as agriculturists, to have the debt scaled down in accordance with the provisions of the Madras Agriculturists' Relief Act. The advocate of the appellants relies on this decision to contend that if the property was sold free of encumbrances, then the vendee, who retains a portion of the purchase money, is only the agent of the vendor, so that the money in his hands is the vendor's money. In other words, the argument is that the money left with the vendee for the discharge of encumbrances is part of the price of the property and thus it is balance of consideration. This argument may have force if the money was reserved for discharging encumbrances, in which event the vendee have to account to the vendor for the money. In other words, the argument is that the money left with the vendee for the discharge of encumbrances is part of the price of the property and thus it is balance of consideration. This argument may have force if the money was reserved for discharging encumbrances, in which event the vendee have to account to the vendor for the money. But, in this case, since the creation of a charge in favour of the first plaintiff was a "contract to the contrary", S.55(4) cannot apply; and the claim of the first plaintiff is not as agent of the second plaintiff. 9.Then it is urged that the debt in this case will fall under S.2(c)(iii), a liability arising out of a breach of trust. The contention is that by leaving the money in the hands of the vendee to be paid to the first plaintiff on a future date, a trust was created in her favour. We do not think so. A charge was created in her favour, and the suit that followed was for recovery of the amount by enforcing that charge. It was not based on any breach of trust. 10. In the result, we confirm the decision of the lower appellate court and dismiss the second appeal. In the circumstances, we direct the parties to bear their respective costs. Dismissed.