Judgment :- 1. This second appeal arises from a suit for recovery of unpaid purchase money, which was dismissed by the trial Court but decreed by the District Judge of Kottayam. When the second appeal came up before a learned judge, he was of the view that the question deserved consideration by a Division Bench. That is how the second appeal came up before this Bench. 2. The question of law that arises for consideration is as to whom the benefit of reduction in the amount of encumbrance should enure in the case of unpaid purchase money which has been reserved with the vendee for discharge of the encumbrance. The facts may first be stated. The 1st plaintiff is the father of the 2nd plaintiff, and items 2 and 3 belonged to them jointly; item 1 belonged to the 1st plaintiff but stood in the name of a benamidar. These items were sold under two sale deeds, Exts. P1 and P2, to the defendant-appellant and an amount of Rs. 1,386/- was reserved under the first sale deed with the defendant for payment to a usufructuary mortgagee by name Harihara Iyer. Under the second sale deed, Ext. P2, a further amount of Rs. 1,942/- was reserved with the defendant in respect of another usufructuary mortgage payable to the same Harihara Iyer. The defendant failed to pay the amount, and Harihara Iyer filed O. S. No. 112 of 1966 against the plaintiff respondents for the amount due under the usufructuary mortgage deeds. By that time, Act 31 of 1958 had come into force and the mortgage debt was liable to be scaled down as both the plaintiffs and the defendant were agriculturists. Consequently, the creditor Harihara Iyer claimed only recovery of Rs. 1,884.65, that being the scaled down amount payable under the provisions of Act 31 of 1958. As stated earlier, under the sale deeds, an amount of Rs, 3,328/- had been reserved with the defendant and he was liable to pay only Rs, 1,884.65 to the creditor. The respondents thereupon filed the present suit for recovery of the balance amount of Rs. 1443.35 with 12% interest from the date of Exts. P1 and P2. As stated earlier, under the sale deeds, an amount of Rs, 3,328/- had been reserved with the defendant and he was liable to pay only Rs, 1,884.65 to the creditor. The respondents thereupon filed the present suit for recovery of the balance amount of Rs. 1443.35 with 12% interest from the date of Exts. P1 and P2. The defendant resisted the suit and contended that under the terms of the sale deeds, the plaintiffs would be entitled to institute a suit only if they had sustained damages by reason of the defendant not paying the amount to the creditor, that the suit was therefore not maintainable and that, in any event, the benefit of the reduction in the mortgage amount should enure to the defendant. The trial Court dismissed the suit holding that since the plaintiffs had sustained no damages by the non-fulfilment of the conditions stipulated in the sale deeds, there was no cause of action against the defendant. In appeal, the learned District Judge of Kottayam reversed the decision of the trial Court and held that the price of the properties sold to the defendant had been fixed with reference to their full value and the properties had therefore been sold free from encumbrances. Relying on a decision of the Allahabad High Court, the District Judge held that the unpaid purchase money in the hands of the vendee enures to the benefit of the vendor and the latter is therefore entitled to recover the amount to the extent it had not been paid to the creditor. It is the correctness of this finding that has been challenged before us. 3. The learned counsel for the appellant argued that the defendant purchased the properties undertaking to discharge the mortgage debt that was binding on the properties, that, thereafter, it was the duty of the defendant to pay off the mortgage debt and that, therefore, the benefit of any reduction in the amount of the encumbrance should go to the defendant and not to the vendor. 4. Two decisions have been cited by the appellant's learned counsel which support his contention and they are Vinaitheertha Thevar v. Viswanatha Ayyar (AIR. 1954 Mad. 508) and Narain Singh Bechan Singh (AIR. 1953 Punjab 110). 4. Two decisions have been cited by the appellant's learned counsel which support his contention and they are Vinaitheertha Thevar v. Viswanatha Ayyar (AIR. 1954 Mad. 508) and Narain Singh Bechan Singh (AIR. 1953 Punjab 110). It is contended that these two decisions have held that the benefit of reduction in the amount of the encumbrance should go to the vendee where the property has been sold with a direction that the vendee should discharge the encumbrance and that the lower Court was therefore not right in decree ding the suit. 5. Before we consider these decisions cited on behalf of the appellant, it appears proper to ascertain whether the sales evidenced by Exts. P1 and P2 are free of encumbrances or subject to encumbrances as this question has a considerable bearing on the liability of the vendee. Ext. P1 specifically states that the property has been sold for Rs. 2,000/-and that out of the total amount due, an amount of Rs. 1,386/- was reserved with the vendee for payment to Harihara Iyer, the mortgagee of the property. There is also a recital that in case any damage is caused to the vendor by reason of the encumbrance amount not being paid to the creditor, such amount with interest would be a charge on the property and the vendee would be liable for the amount. There are similar recitals in Ext. P2 also, so that it is clear that in the case of both the sale deeds what has been transferred is the entire property free of encumbrance and not the property subject to encumbrance. The provisions of the Transfer of property Act, namely, S.55(4) (b) and 55 (5) (b) clearly indicate that the rights and liabilities of the vendor and the vendee in regard to encumbrances on the properties sold are markedly different according as the property is sold subject to encumbrances or free from encumbrances. In the one case, the vendor is liable to pay only the interest on the encumbrance till the date of the sale and the vendee becomes liable to pay the principal due on the encumbrances as well as the interest thereon accruing after the sale. In the other case, the duty of discharging all encumbrances existing on the property on the date of the sale is laid on the seller who receives the full value of the property as its price. In the other case, the duty of discharging all encumbrances existing on the property on the date of the sale is laid on the seller who receives the full value of the property as its price. It may be that instead of the vendor himself paying the amount he may reserve a portion of the purchase money with the vendee for payment to the creditor. The vendee in that case would only be an agent who has undertaken the obligation to pay the amount on behalf of the vendor. It has been held in Pyare Lal v. Mt. Kalawati (AIR. 1949 All. 340) that "If a vendor transfers property, which is subject to a mortgage, to a vendee, in the absence of any contract to the contrary, it is the duty of the vendor to pay up the incum-brances. S.55(1) (g) T. P. Act, provides that in the absence of a contract to the contrary, the vendor is liable to discharge all encumbrances on the property then existing except where the property is sold subject to encumbrances." If the vendor, instead of paying the money himself, has left it in the hands of the vendee for payment to the mortgagees, it would follow that the vendee is only an agent of the vendor and if it ultimately turns out that the amount left in the hands of the vendee was less than the amount due under the mortgages, it cannot be argued that the vendee will not be entitled to claim the excess amount from the vendor. Where a property is sold for a fixed price, free of encumbrance, it is the duty of the vendor to pay the entire mortgage debt. Any direction in the sale deed to the vendee to pay the amount, amounts to only the vendee being made the agent of the vendor to pay the money on his behalf. The entire position has been discussed with great clarity, if we may say so with respect, in a Division Bench decision of the Madras High Court in Avvari Subba Row v. Kondamudi Varadaiah (AIR. 1943 Mad. 482). Patanjali Sastri J. who wrote the leading judgment, has very clearly brought out the difference between a sale free from encumbrance and that subject to encumbrance. 1943 Mad. 482). Patanjali Sastri J. who wrote the leading judgment, has very clearly brought out the difference between a sale free from encumbrance and that subject to encumbrance. The following observations appear to be apposite: "These provisions (S. 55 of the T. p. Act) make it plain that on the sale of property subject to encumbrances, the bargain relates to the vendor's interest in the property such as it is, that is to say, his equity of redemption and the discharge of the incumbrances is the sole concern of the purchaser as between himself and the vendor who is only entitled to be indemnified against the incumbrances; while in the case of a sale free from incumbrances, the price is fixed with reference to the full value of the property, the liability to discharge all the incumbraoces being thrown on the vendor, the vendee, however, being given the right to retain out of the price an amount sufficient to clear the incumbrances. But as the liability to pay them off is that of the vendor who has to implement his sab by providing a clear title, the vendee must be regarded as paying the amount retained to the encumbrancer on behalf of the vendor out of the purchase-money payable to the latter under the contract of sale. In other words, the vendee acts as the agent of the vendor as regards the disposal of the sum retained, although the agency is one which cannot be revoked as the vendee has himself an interest in the money being applied in the manner indicated." The decision further states that: "Where immovable property is sold free from encumbrances, it follows that the vendor is entitled to call upon the buyer to account to him for any portion of the purchase money which it has become no longer necessary to apply in accordance with the stipulation in that behalf." 6. We have also another decision of the Madras High Court reported in Panchigolla Satyanarayana Murti v. Karatam Sathiraju (AIR. 1942 Mad. 525) where the same principle has been affirmed. We have also another decision of the Madras High Court reported in Panchigolla Satyanarayana Murti v. Karatam Sathiraju (AIR. 1942 Mad. 525) where the same principle has been affirmed. It has been held in that decision that: "Where part of the purchase money is retained by the purchaser for payment of a mortgage and if the purchaser does not have to pay the full amount thus reserved with him owing to the mortgage debt being scaled down at the instance of the mortgagors, he would be liable to return to the latter the portion of the purchase money remaining unpaid." 7. Our attention has also been drawn to the decision reported in Rameshwar Dayal v. Hari Kishen (AIR. 1940 All. 351). The facts are on all fours with that of this case. There, the vendee from the mortgagor retained the amount due on the mortgage, which was included in the purchase-money for payment to the mortgagee. In the meantime, the U. P. Agriculturists' Relief Act was passed whereby the vendee was able to clear off the mortgage debt for less amount than what was due. The question was whether the mortgagor was entitled to recover the balance amount as unpaid purchase money. It was held that the vendor had a clear legal right to recover the amount as it was part of the unpaid purchase money. The observations of the learned author Mulla in his fifth edition of the Transfer of Property Act at page 327 have also been brought to out notice. There, it has been pointed out that the sale is not subject to encumbrances unless there is an express provision to that effect The implication is clear that ordinarily the sale is free from encumbrances. In this particular case, the recitals in the document leave no room for doubt that the sales evidenced by Exts. P1 and P2 are free of encumbrances. 8. We may now refer to the two decisions, cited by the learned counsel for the appellant, which apparently support his contention. In AIR. 1954 Mad. In this particular case, the recitals in the document leave no room for doubt that the sales evidenced by Exts. P1 and P2 are free of encumbrances. 8. We may now refer to the two decisions, cited by the learned counsel for the appellant, which apparently support his contention. In AIR. 1954 Mad. 508, a Division Bench of the Madras High Court has held that where the money which remains in the bands of the vendee for payment to the usufructuary mortgagee was not money payable to the vendor under S.55 (5) (b), it could hardly be said as remaining unpaid within the meaning of S.55(4) (b) and therefore could not be the subject of a statutory charge contemplated by the Section. In that case, the learned judges were of the opinion that the sale was not free from encumbrance because the document specifically provided that the vendee was to redeem the usufructuary mortgage. Their Lordships observed: 'It is not as if the vendor has agreed to redeem the mortgage and deliver the property free of any encumbrance to the vendee after receiving the consideration from the vendee If that had been the case, then it would have been money remaining unpaid to the vendor and a charge might possibly have arisen." With great respect, we are unable to agree with this ruling if it means that in all cases where the vendee has been directed to pay up the encumbrance existing on the property, the sale must be deemed to be subject to encumbrance. As has been explained in the decision reported in AIR. 1943 Mad. 482, a direction in the sale deed to the vendee to dischargee the encumbrance, that being part of the purchase money, cannot convert the transaction from a sale free of encumbrance one subject to an encumbrance. The liability imposed upon the vendee in such cases is only as an agent of the vendor; and if the vendee has to pay a higher amount than what has been stipulated, he would be entitled to recover the excess amount from the vendor. What has to be ascertained is whether it is the whole property which has been sold fixing a price for the entire property or whether what is sold is only the equity of redemption and the price stipulated is only for that right. 9. What has to be ascertained is whether it is the whole property which has been sold fixing a price for the entire property or whether what is sold is only the equity of redemption and the price stipulated is only for that right. 9. The other decision relied on by the learned counsel for the appellant is that reported in AIR. 1953 Punjab 110. In that decision, it is stated that in Izzat-un-Nissa Begam v. Pertab Singh (31 All. 583 PC.) a contrary view has been taken and that the Court was therefore bound to accept the view of the Privy Council. We may point out that the decision of the Privy Council dealt with a case of a sale subject to encumbrance and, therefore, the ratio decidendi of that decision cannot apply to the facts of this case. We have no doubt that where the sale is free from encumbrances, the liability to discharge the encumbrances is on the vendor and even if there is a direction to the vendee to pay the amount, it amounts only to the vendee being made an agent of the vendor for payment of the amount. The decision of the Court below is correct. 10. The only other contention which remains to be considered is that the lower Court was not justified in granting interest on the amount due from the date of Act 31 of 1958. The sale deeds do not contain any stipulation for payment of interest in respect of the unpaid purchase money. It cannot be said that by the delay in paying the amount to the mortgagee any damage has been caused to the seller as, in the meantime, Act 31 of 1958 came into force and the amount payable was in fact reduced as has been indicated earlier. There is therefore, in our opinion, no justification for awarding interest from the date of Act 31 of 1958. But when the suit was filed for the amount the vendee has raised untenable contentions and questioned the right of the vendor to claim the amount. The circumstances therefore justify the award of interest at 6% from the date of the suit. 11. The decree of the Court below is accordingly modified by directing interest to be paid from the date of suit at 6%. Subject to this direction, the second appeal is dismissed. The parties will suffer their respective costs.