RATANBAI Vs. GHASHIRAM GANGABISAN WANI

JUDGEMENT

(1.) This was a suit brought by the plaintiffs to recover the amount of Rs. 9,296- 12-0 as damages for breach of a covenant contained in a sale-deed, Ex. 20, passed by the father of the defendant in favour of the father of the plaintiffs. [His Lordship, after setting out facts, proceeded:]

(2.) On appeal, it is urged on behalf of the appellant that the suit is barred by Art. 62 of the Indian Limitation Act, and even if Art. 97 applied, the cause of action accrued to the plaintiffs on April 7,1916, when the Court in suit No. 212 of 1915 held that the Court purchasers acquired only the right, title and interest of Shankarlal and not the interest of his son Vallabhdas. Secondly, it is urged that Art. 96 of the Indian Limitation Act would apply, and the mistake was discovered by the plaintiffs when the suit was decided on April 7,1916. On the merits it is urged that the plaintiffs have not shown that they have suffered any damage, and that as the plaintiffs got a little more than a half of the house, the amount of damages awarded to the plaintiffs was excessive. The first question arising in this appeal is whether the plaintiffs suit is within time. The plaintiffs sue for damages on the covenant contained in the sale-deed, Exhibit 20, read with the agreement, Exhibit 19. The suit is not for recovery of the purchase-money paid by the plaintiffs father to the defendant's father. It is urged on behalf of the appellant that the suit is barred by limitation under Art. 62 of the Indian Limitation Act, and reliance is placed on the decision in the case of Ardeshir V/s. Vajesing, s.c. 3 Bom. L.R. 190. In that case an agreement of sale was void ab initio and therefore the consideration failed from the date of the sale-deed, and the consideration paid to the vendor would be money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs beuse. Their Lordships of the Privy Council in Hanuman Kamat V/s. Hanuman Mandur (1891) I.L.R. 19 Cal. 123, 126 P.C. held that if there was never any consideration, then the price paid by the purchaser was money had and received to his account, and that where a contract was not void but was void-. able, the consideration did not fail at once, but only from the time when the purchaser endeavoured to obtain possession of the property, and being opposed, found himself unable to obtain possession, To such a suit Art. 97 of the Indian Limitation Act, would apply. It would, therefore, follow that if the sale was void ab initio, and if the suit was brought for recovery of the purchase-money, Art. 62 would apply, but where the sale-deed was voidable at the instance of a third person, the Art. applicable would be Art. 97 of the Indian Limitation Act. In both the cases referred to above possession was handed over by the vendor to the vendee. When, however, possession is handed over by the vendor to the vendee, different considerations would apply. In Subbaroya v. Rajagopala (1914) I.L.R. 38 Mad. 887, where a vendor, who had a title to certain immoveable property voidable at the option of another person, sold it to the vendee and put the vendee in possession thereof, and the stranger who was entitled to the property brought a suit both against the vendor and against the vendee and got a decree and obtained possession there of in execution, it was held that the vendee's cause of auction for! the return of the purchase-money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration, and that the Art. applicable was Art. 97 of the Indian Limitation Act. The judgment dealt with three classes of cases, and as regards the third class, namely, where though the title is known to be imperfect and the contract is in part carried out by giving possession of the properties, it was held that the cause of action arose only on the disturbance of possession, and the decision of this Court in Narsing Shivbakas V/s. Pachu Rambakas, s.c. 15 Bom. L.R. 559 was followed.

(3.) In Sankara Variar V/s. Ummer (1922) I.L.R. 46 Mad. 40, where a purchaser under a voidable sale-deed from a qualified owner was dispossessed in execution of a decree obtained by a person entitled to avoid the sale, it was held that a suit by the purchaser for the return of the price was governed by Art. 97 of the Indian Limitation Act, and that limitation began not from the date of the decree but from the date of actual dispossession. In that case the decision of the Privy Council in Juscurn Boid V/s. Pirthichand Lal Choudhury (1918) I.L.R. 46 Cal. 670, P.C. has been distinguished on the ground that the possession which the purchaser obtained was not actual possession, and reference was made to the remarks of the Privy Council at page 679 which are as follows:- There may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which the limitation period should run, but that is not the case hare.