LAWS(KER)-1954-2-8

RAMA PANICKER Vs. RAMA PANICKER

Decided On February 24, 1954
RAMA PANICKER Appellant
V/S
RAMA PANICKER Respondents

JUDGEMENT

(1.) This Second Appeal was referred to a Full Bench by one of us with a view to have an authoritative pronouncement of this Court on the question whether a contract to forego the vendor's charge for unpaid purchase money is to be necessarily inferred when the whole or part of the consideration for the purchase of immovable property is agreed to be paid by the purchaser to a third party on behalf of the vendor. It is a matter of common knowledge for lawyers and Judges that the decisions bearing on the question are by no means uniform. The present case arises from the Travancore area. The balance of judicial opinion in the erstwhile Travancore High Court was definitely in favour of the view that in the circumstances mentioned the unpaid vendor would not lose his charge on the property. Almost consistently the Cochin High Court was taking the opposite view that the charge will not survive an arrangement of the kind referred to. It is on account of this conflict that the case was referred to a Full Bench.

(2.) However, at the hearing before the Full Bench it became obvious that even if we were to hold that the direction to the purchaser to pay the price or a part thereof to a creditor of the vendor is not a contract inconsistent with the existence or the continuance of the unpaid vendor's charge, no relief against the property could be granted in favour of the plaintiff as the suit was brought more than twelve years after the money sued for became due. We did not therefore hear arguments on the vexed question referred to the Full Bench. On the assumption that the charge was not lost by an arrangement of the kind we have before us, counsel were directed to confine their submission as to when the cause of action arose in the case of enforce the charge. When that was done Mr. N. Varadaraja Iyengar, learned counsel for the plaintiff respondent practically gave up the fight and told us that regard being had to the terms of the sale deed (Ext. B) he could not find much support in decided cases or elsewhere for the view that the cause of action arose on the date subsequent to the date of the sale. On principle and authority we are definitely of the view that, assuming the unpaid vendor's charge was not displaced by the vendee's covenant to pay the vendor's creditors, the cause of action to enforce it arose on the date of the sale itself and that the suit brought more than twelve years after the accrual of the cause of action, was barred by time as to the relief against the property and that the relief granted against the property by the courts below cannot be sustained.

(3.) The facts of the case are simple. On 18.10.1103 the plaintiff sold the plaint schedule property to the husband of defendant 1 for a consideration of Rs. 615/-. No part of the consideration did he receive in cash. The property was outstanding in the possession of usufructuary mortgagees and after leaving sufficient money with the vendee to redeem them, the balance of the consideration was directed to be paid to as many as four simple creditors of the vendor. The present suit was in respect of an amount of Rs. 170/- left in the hands of the vendee to discharge the principal amount of a promissory note executed by the vendor on 28.3.1103. The vendor had paid off the interest accrued due till the date of the sale. The vendee did not pay amount towards the promissory note, but the vendor kept the debt alive by an acknowledgment dated 28.3.1109, and finally paid off the same himself on 28.3.1115. Under the limitation law in Travancore the period of limitation for a suit on a promissory note was six years. The present suit by the vendor to recover the amount he paid to the creditor was instituted on 28.3.1118, the day on which three years expired from the date of the payment. The suit was so framed as to be treated either as one to enforce the vendors' lien for unpaid purchase money or as one to enforce the contract to indemnity. The sale deed contained an express covenant to indemnify the vendor for losses, if any, sustained by him in the event of the vendee's failure to discharge the amounts reserved with him for payment to the vendor's creditors. The cause of action for the suit is said to have arisen on 28.3.1115 when the debt was discharged by the vendor and in the prayer portion of the plaint the plaintiff prayed for the recovery of the amount by sale of the property sold by him and out of the assets of the deceased vendee in the hands of defendant 1, the wife of the vendee. After the death of the vendee his heirs partitioned his properties among them and under that arrangement the plaint schedule property went to a son of the vendee, one Raghava Panicker and he sold the same to defendant 2. In the partition arrangement defendant 1 had obtained other properties.