AVUTHALA Vs. DAYUMMA

JUDGEMENT

(1.) The suit is brought to recover the unpaid purchase money due in respect of a sale-deed executed on the 8 September 1894, and to enforce the vendor's lien. If Art. 111 of the second schedule to the Limitation Act is the article to be applied, the suit is barred by limitation, since it was not brought within three years from the date above mentioned, which we think, in the absence of evidence to the contrary, must be taken to be the date for completing the sale.

(2.) In terms the article precisely applies to this suit and it has been hold by this Court in Natesan Chetti V/s. Soundararaja Ayyangar I.L.R. 21 Mad. 141, notwithstanding the prior decision in Bombay, that this article and not Art. 132 should he applied to such a case. We are asked to re-consider that decision on the strength of a recent case in Har Lal V/s. Muhamdi I.L.R. 21 All. 454, where the subject is discussed at length by Strachey, C.J., with the result that the view expressed in Bombay is preferred to that which has been expressed in this Court. Notwithstanding the anomalies which, according to the learned Chief Justice, are involved in the latter view, we are not convinced that it is erroneous. The Chief Justice starts with the assertion that the expression "suit to enforce a vendor's lien" may be taken to denote a claim for his personal remedy as well as his claim against the land. We cannot assent to that proposition . In the case of a sale of land the obligation to pay the purchase money has attached to it by way of security the right against the land itself which is called the vendor's lion. While in Art. 111 the Legislature refers to that lien, we can see no reason why its language should not be taken in its plain sense as referring not to the personal obligation which is not mentioned, but to the right against the land which is mentioned. We fail to see how the, legislature could have expressed its meaning more clearly, if, as we take it, it was intended that the vendor's right against the land should be enforced by suit only within three years of the dates mentioned. With such plain language before us we do not consider it necessity to examine the consequences which may ensue from an application of the article, When there is a special provision made for a specific case, there can be no doubt that it, rather than a general provision such as is found in Art. 132, must be put in force. Otherwise no effect can be given to the article. The learned Chief Justice refers to the action of the Transfer of Property Act which deals with vendor's lien, and apparently draws from that consideration an argument against the application of Art. 111. In our opinion an Act which was passed in 1877 ought not to be interpreted with reference to an enactment on a totally different subject which was made some five years later. If anomalies have resulted from this latter enactment, it is for the Legislature to amend the Act of 1877. For these reasons we adhere to the case of Natesan Chetti V/s. Soundararaja Ayyangar I.L.R. 21 Mad. 141.

(3.) A second point taken was that the respondent was entitled, as regards the personal remedy, to the benefit of the six years given by Art. 116, since the sale-deed was a registered instrument. Art. 116 pre-supposes a contract in writing registered which contract has bean broken. Here there was no contract in writing so far as regards the payment of the purchase money. On the contrary the registered document states that the money has been paid, and it is therefore in spite of the document and not under it that the plaintiff sues. The obligation on the part of the buyer to pay the purchase money is different from the obligation arising under a covenant for title such as was in question in the case cited (Krishnan Nambiar V/s. Kannan I.L.R. 21 Mad. 8. The obligation to pay arises from the contract--between vendor and purchaser, whereas the covenant for title is implied or expressed in the conveyance. The present case is therefore distinguishable from Krishnan Nambiar V/s. Kannan I.L.R. 21 Mad. 8. In our opinion Art. 116 cannot properly be applied to this case, and it follows that the suit ought to have been dismissed. The appeal is allowed and the decrees of both the Courts below are reversed. The defendant is entitled to all costs.