Judgment :- 1. A Single Judge has referred this case to a Division Bench, since the learned judge felt that a pronouncement by a Division Bench was 'required as to whether the decision by a Single Judge of this Court in Ammukkutty Kunjamma v. Ikkavamma (1964 KLT. 815) or the Division Bench ruling of the Madras High Court in K.G. Lakshmaua Iyer v. Ramaswami Naicker (A.I.R.1941 Mad. 119) expressed the correct view. We may state the essential facts of the case to bring out the question involved into relief. The respondent was the owner of item 1 of the suit properties; and he sold the same on 8th July 1953 to the appellant for Rs. 1,500/-. Towards the sale consideration, the appellant executed a usufructuary mortgage of item 1 in favour of the respondent: by the same document, a hypothecation was also created over the other two items in the plaint belonging to the appellant. It has also emerged that the appellant is still in possession of item 1 claiming that he is a tenant thereof though the mortgage on it was a usufructuary, mortgage. 2. The respondent brought the suit giving rise to the second appeal for the sale consideration claiming that the appellant was not entitled to benefits of Act 31 of 1958, since the exclusion contemplated by clause (vii) to S.2 (c), viz., "any liability for which a charge is provided under sub-clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882", applied to the case. The question we have to consider is whether this exclusion applies to the case. S.55 (4) (b) of the Transfer of Property Act provides for a charge, usually designated as vendor's lien, over the property sold for the unpaid purchase money "in the absence of a contract to the contrary". Thus, the question for consideration boils down to whether there is a contract to the contrary in the case before us. The Division bench ruling of the Madras High Court has held, following the Eng-lishdecision in Webd v. Macpherson (ILR. 31 Cal. 57), that, in a case where the property sold was itself mortgaged for the unpaid purchase money, there was no contract to the contrary so as to do away with the statutory lien. The Division bench ruling of the Madras High Court has held, following the Eng-lishdecision in Webd v. Macpherson (ILR. 31 Cal. 57), that, in a case where the property sold was itself mortgaged for the unpaid purchase money, there was no contract to the contrary so as to do away with the statutory lien. On the other hand, the Single Judge's decision of this Court in Ammukutty Kunjamma's case took the view that in such a case the statutory lien was no more there, because the acceptance or taking of a mortgage of the same property the property sold indicated a contrary intention an intention to do away with the statutory lien. In this decision, the learned judge followed the Division Bench ruling of the Travancore High Court in Muhaitheen Beevi v. Krishna Iyer Ananthanarayana Iyer (1943 TLR.144), where the Division Bench followed the same English decision in Webb v. Macpherson. What we have therefore to consider is the real import of the English decision in Webb v. Macpherson. 3. Wadsworth J. has extracted, in the Madras decision, the following passage from Webb v. Macpherson: "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." From this passage Wadsworth J. has proceeded to reason "Applying this rule, we find it difficult to hold that the terms of the suit mortgage constitute a 'contract to the contrary' so as to exclude the statutory charge. It is true that the mortgage provides additional security and gives five years for payment. But we are not prepared to hold that these terms are necessarily inconsistent with the continuance of the charge" The Single Judge of this Court has also extracted the following passage from the same English decision: "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 this purchase money which is inconsistent with the continuance of the charge." (The same passage extracted by Wadsworth J. with one more sentence.) The learned judge has then extracted another passage from the judgment of Nokes J. from the Travancore decision, where Nokes J. has observed: "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 avail, able, 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 mads no mention of such a security on immovable property as a hypothecation bond of land." 4. From the passage extracted above from the judgment of Nokes J. it is clear that a distinction has to be drawn between a personal covenant or contract to pay the purchase money and the creation of a mortgage on the property sold to secure the purchase money. In fact, Nokes J. has gone further and has observed that, even if the mortgage created was not on the property sold but on some other property belonging to the vendee, still, since the security so created was superior to or better than the statutory charge, on the creation of such better or superior security, the intention of the vendee must be to forego the statutory lien: in other words, the two securities are not cumulative but inconsistent. Nokes J. has then observed that such an intention must be stronger in a case where the mortgage created was on the property sold itself. This aspect does not appear to have occurred to or been considered by Wadsworth J. A personal covenant to defer payment or any personal contract with respect to the purchase money need not be (or even cannot be) inconsistent with the statutory charge, which is a superior security, while a mortgage, which is a security superior to the statutory charge, is inconsistant with the statutory charge: the position is stronger when the mortgage is on the same property that was sold. Wadsworth J. appears to have applied the analogy of a personal covenant to pay the sale consideration to a mortgage for the same created on the property sold itself. This, we venture to observe, with all respect to the eminent Judges (Wadsworth and Patanjali Sastri JJ.), is not the proper import of Webb v. Macpherson. 5. Taking this aspect into consideration, we hold that, in a case where a mortgage is created to secure the purchase money (more so when the mortgage is on the property sold), there is a contrary intention as contemplated by S.55 (4) (b) of the Transfer of Property Act. And in the light of this, we are of opinion that the appellant is entitled to claim benefits under Act 31 of 1958, and under Act 11 of 1970 if any. Now that we have come to this conclusion on the main question, we feel that the entire case has to be reconsidered in the light of this judgment. 6. The second appeal is allowed, the concurrent decision of the lower courts is set aside and the case is remitted to the trial court for fresh disposal in the light of this judgment. And we pass no order regarding costs so far incurred. 7. The court fee paid on the memorandum of second appeal will be refunded.