NARAYANA PILLAI Vs. GEORGE

JUDGEMENT

(1.) The plaintiff sued the defendant for the balance of consideration reserved under a sale deed executed by her. The suit was decreed in terms of the plaint by the Trial Court, but in appeal was dismissed as barred by Art.111 of the Indian Limitation Act so far as the personal remedy was concerned. The plaintiff has therefore preferred this Second Appeal and it raises the only question whether the plaintiff is entitled to relief against the person of the defendant or not.

(2.) It was first contended on behalf of the defendant, that the terms of the reservation in the sale deed exclude the defendants personal liability altogether. The recital is simply, that a sum of Rs. 750/- is reserved as a first charge on the property sold, to be paid by the defendant on a registered receipt to be executed by the plaintiff. There is in this, an undertaking by the defendant to pay, which in itself imports a personal liability. The specification of a charge on the property sold is only cumulative and does not, in the absence of express language or of necessary intendment, exclude such liability. I therefore repel this contention and hold that the terms of the reservation do not exonerate the defendant from personal liability.

(3.) The next question is whether Art.111 or Art.116 of the Indian Limitation Act applies for the enforcement of the personal remedy against the defendant, the suit having been instituted more than three years, but within six years of the date of the sale deed. Art.111 prescribes a period of three years for a suit by a vendor for personal payment of unpaid purchase money and Art.116 prescribes a period of six year for a suit for compensation for the breach of a contract in writing registered. At the first blush, it struck me, that of these two Articles, the former is the specific Article in relation to a suit to enforce personal payment of unpaid purchase money. But having regard to the course of judicial decisions I am satisfied, that the latter which is restricted to contracts in writing registered; must be held to be the specific Article. The Privy Council considered Art.116 as against Art.110 which relates to suits for arrears of rent in Tricomdas Coovrji Bhoja v. Sri Gopinath Jiu Thakaur, AIR 1916 P. C. 182, in which Lord Sumner speaking for the court said: