L. JAMNA PRASAD Vs. BISHESHWAR DAYAL AND ANOTHER

JUDGEMENT

(1.) THESE three appeals arise out three suits Nos. 311 of 1945, 319 of 1945 and 320 of 1945, brought by Smt. Bhulloo, Jamuna Prasad and Jai Narain, respectively for recovery of compensation for breach of warranty of title in certain sale -deeds.

(2.) THE property which was the subject of the sale -deeds belonged to one Balgovind who died in 1926. Balgovind had a son Sheo Govind who became owner of the property by right survivorship. Sheo Govind gifted the property by means of two gift deeds dated the 28th may, 1928, and the 1st June, 1928, to his mother Smt. Ram Piari. Ram Piari also died on 2nd January, l937, and the property gifted by Sheo Govind reverted to him. Sheo Govind then executed three sale -deeds, one dated the 15th April, 1937, for Rs. 550, in respect of a part of the property in favour of Smt. Bhulloo Appellant, another in favour of Jamuna Prasad Appellant on the 26th, April, 1937 for Rs. 300 in respect of another part of the property and a third sale -deed was executed on the 19th, June, 1937, for Rs. 300, in favour of Jai Narain Appellant in the third case. On the 21st March, 1938, a suit for partition was brought by the sons of Sheo Govind in which the Appellants in the three cases were also impleaded as parties on the allegation that the sale -deeds executed by Sheo Govind in favour of Smt. Bhulloo, Jamuna Prasad and Jai Narain were void inasmuch as the property was joint ancestral property in the hands of Sheo Govind on the date on which the transfers were made by him and the sale -deeds were not for legal necessity. In this suit for partition it was held that the property was joint ancestral property in the hands of Sheo Govind and had not been inherited by him from his mother. It is not necessary in these appeals to go into the grounds on which it was found that the property was joint ancestral property. The decree for partition became final on the 18th October, 1939, as no appeal was instituted against this decree. The sale deeds in favour of the three Appellants were held to be void and consequently all of them instituted the three suits which have given rise to these appeals for the recovery of the sale consideration together with damages. These suits were instituted on the 18th. October, 1945. The suits were resisted on various grounds but mainly on the ground that the suits were barred by limitation. The trial Court found that the suits were governed by Article 62 of the Indian Limitation Act and as such were barred by limitation. The trial Court found that the suit were governed by Article 62 of the Indian Limitation Act and as such were barred by limitation. It also found in the suit instituted by Smt. Bhullo that a part of the sale consideration had been returned to the vendee. The claim for compensation in addition to the refund of the sale consideration made by Jamuna Prasad was not held to be proved and in the case of Smt. Bhulloo the claim for recovery of damages on account of rest which the property would have yielded if the whole of it had remained in her possession was given up. The lower appellate Court agreed with the view taken by the trial Court that the suits were governed by Article 62 of the Limitation Act and dismissed the appeal. It, however, differed with the trial Court's finding on the question of fact with regard to the return of a part of the sale consideration by Smt. Bhulloo, and came to the conclusion that the sum of Rs. 290, said to have been returned to the vendee after the sale -deed had been executed was not returned. The three Appellants have now come up in second appeal.

(3.) THE sale -deeds which were executed by Sheo Govind in favour of the three Appellants were therefore not void ab initio and unless they were set aside at the instance of the sons of Sheo Govind they continued to hold good. The Appellants had therefore no cause of action till the sale -deeds were held void on the 18th October, 1939 by a decree in the partition suit. The cause of action, if any, arose therefore only on the 18th October, 1939, and not earlier.