NARSING SHIVBAKAS MARWADI Vs. PACHU RAMBAKAS MARWADI

JUDGEMENT

(1.) The defendant in this suit purchased the immoveable property from one Fulchand who afterwards turned out to be a mere mortgagee. The defendant, believing himself in good faith to have the title to sell, sold it to the plaintiff in 1903, and the plaintiff thereupon received possession and retained it until 1909. The true owner, the mortgagor, then redeemed and recovered possession from the plaintiff. The plaintiff now sues the defendant for the purchase-money and interest as money paid upon a consideration which has since failed.

(2.) In the first Court the learned Judge held that the suit was governed by Article 62 of Schedule II of the Limitation Act. In his opinion the purchase-money paid to the defendant was money had and received to the plaintiff s use and therefore J the plaintiff would be obliged to bring the suit to recover within three years from date of such receipt.

(3.) On appeal the learned Judge of the first appeal Court held that the suit was governed by Article 97, and the only question which we have to answer here is whether possession given under a purchase is an existing consideration as long as it lasts. In our opinion this question can admit of only one answer. In the case of purchased property the whole consideration contemplated is the property. That being given into the possession of the purchaser so long as it remains, he had all the consideration that he is by law entitled to. Whether that consideration be actually lawful or unlawful it makes no difference ; for, it ought to be clear that it is only where the possession which is the consideration turns out to be unlawful that the question can ever be raised in a practical form. This view is in agreement, we think, with the principle underlying the cases which have been cited on behalf of the appellant. It is true that in the Privy Council case of Hanuman Kamat v. Hanuman Mandur (1891) I.L.R. 19 Cal 123. their Lordships laid down the very useful principle that speaking generally the test to be applied is, when there was any difficulty in determining whether a case fell under Article 97 or Article 62, whether the contract was void ab initio or merely voidable. But their Lordships, we think, were not considering a case in which possession had actually been given, although the contract subsequently turned out to have been void ab initio. In such a case the promisee has received the only consideration he has stipulated for. In all cases of that kind it appears to us that it is only when the promisee is deprived of that consideration and the true character of the contract thus becomes revealed that he has any ground for complaint. And that is the proper time from which to compute the period of limitation. This is the principle distinctly underlying the provisions of Article 97. We think that both in terras and in spirit it does and was intended to cover cases of this kind. In our opinion, therefore, the order appealed against was right and ought to be confirmed. This appeal must therefore now be dismissed with all costs.